The Orphan in Eighteenth-Century Law and Literature

Estate, Blood, and Body

Cheryl L. Nixon

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317021933
• Topic: Literature
• Subtopic: Literary Criticism
• Index: Literature

Cheryl Nixon's book is the first to connect the eighteenth-century fictional orphan and factual orphan, emphasizing the legal concepts of estate, blood, and body. Examining novels by authors such as Eliza Haywood, Tobias Smollett, and Elizabeth Inchbald, and referencing never-before analyzed case records, Nixon reconstructs the narratives of real orphans in the British parliamentary, equity, and common law courts and compares them to the narratives of fictional orphans. The orphan's uncertain economic, familial, and bodily status creates opportunities to "plot" his or her future according to new ideologies of the social individual. Nixon demonstrates that the orphan encourages both fact and fiction to re-imagine structures of estate (property and inheritance), blood (familial origins and marriage), and body (gender and class mobility). Whereas studies of the orphan typically emphasize the poor urban foundling, Nixon focuses on the orphaned heir or heiress and his or her need to be situated in a domestic space. Arguing that the eighteenth century constructs the "valued" orphan, Nixon shows how the wealthy orphan became associated with new understandings of the individual. New archival research encompassing print and manuscript records from Parliament, Chancery, Exchequer, and King's Bench demonstrate the law's interest in the propertied orphan. The novel uses this figure to question the formulaic structures of narrative sub-genres such as the picaresque and romance and ultimately encourage the hybridization of such plots. As Nixon traces the orphan's contribution to the developing novel and developing ideology of the individual, she shows how the orphan creates factual and fictional understandings of class, family, and gender.

PART 1
Estate

Chapter 1
The Poor Orphan: Factual/Fictional Institutions and Statutory Law

The Orphan in Factual and Fictional Narrative

An eighteenth-century reader interested in the plight of the real orphan might select Daniel Defoe’s Augusta Triumphans (1728) or The Generous Projector (1731), the titles given to his proposal for a foundling hospital, over his Captain Singleton (1720), Moll Flanders (1722), or Colonel Jack (1722), novels detailing the picaresque successes of orphan protagonists.1 Similarly, such a reader might put aside Henry Fielding’s Tom Jones (1749), with its celebration of a foundling’s adoption by Mr. Allworthy, in favor of his half-brother John Fielding’s plan for an orphan-asylum, A Plan of the Asylum, or, House of Refuge for Orphans and Other Deserted Girls (1758); and, if interested in considering the working life of a real orphan adolescent, that reader might move onto Henry Fielding’s sober consideration of Poor Law and apprenticeship systems in An Enquiry into the Causes of the Late Increase of Robbers (1751) or his plan for a workhouse, A Proposal for Making an Effectual Provision for the Poor (1753).2 With their plans for hospitals, asylums, and workhouses, these writers of orphan fictions prove to be actively engaged in imagining, planning, and plotting the lives of real orphans. What is more surprising than these authors’ interest in writing about both real and fictional orphans, however, is the consistency with which they connect narrative structure to economic structure: the orphan who is confined to a life of poverty is also confined to factual narrative, while the orphan who experiences and ultimately achieves wealth exists in fictional narrative.

This chapter focuses on the poor orphan, exploring the alignment of the propertyless orphan with nonfiction writing in the eighteenth century. An orphan’s answer to a crucial economic question—Do you own property?—determines whether that orphan is recorded in fact or fiction, is structured as an institutional figure or an individual, and is defined by work or family and fortune. Factual discourse concerning the real orphan is well developed at the time the orphan novel is being invented and takes a variety of narrative and non-narrative forms, yet the orphan constructed by nonfiction differs greatly from the orphan constructed by the novel. As discussed in the Introduction, the orphan novel typically features a valued individual who inherits an estate; if the poor orphan appears in the novel, he or she usually leaves that situation behind, either through picaresque-like adventures or romance-like reconnections with family, and quickly metamorphoses into the “valuable” wealthy orphan. In contrast, factual discourse presents the orphan as a member of a much larger class of unfortunate poor needing state-sponsored and regulated forms of support. To understand why the eighteenth-century novel focuses on the wealthy orphan, it is helpful to investigate the poor orphan and ask why he or she is not the central concern of the novel. This chapter demonstrates that the poor orphan is under continual discussion in factual discourse, throwing into relief fiction’s obsession with the propertied orphan—an obsession examined in Chapters 2 through 6.

The poor orphan proves valuable in a way that differs from the “valued” propertied orphan: he or she not only reveals social problems, but provides a means of narrating these problems and often encourages surprisingly imaginative invention within that commentary. The poor orphan generates factual, rather than fictional, narrativization because the real institutions—the foundling hospital, workhouse, and charity school—devoted to caring for the poor orphan are being newly invented or reinvented in the eighteenth century. As these institutions are not static, nonfiction writing provides a space for their imaginative re-creation and, thus, the imaginative re-creation of the real orphan. These factual accounts often build hopeful narratives out of negative details, arguing that the poor can prove of value if their lives are structured correctly; for example, the poor orphan has the possibility of generating profits from his or her work in the workhouse. While the fictional orphan is plotted according to picaresque, romance, and courtship narratives in which estate, family connections, and marriage are the happy rewards for successful individuation, factual discourse attempts to plot the orphan by plotting the development of institutions that care for the collective poor.

The poor orphan proves valuable to this study in that he or she reveals how intimately the orphan is connected to the law. This chapter argues that the poor orphan’s alignment with factual discourse is rooted in the Poor Law created and modified through Parliament’s statutory law. Dating from the sixteenth century, Poor Law provides a longstanding legal framework for caring for—and, crucially, thinking about—the poor orphan. In the eighteenth century, Poor Law systematizes the care of destitute and abandoned children through a sequence of nursing, workhouse, and apprenticeship structures. Over the course of the century, those public structures prove increasingly inadequate, leading to the invention of institutions that maintain the essential characteristics of this Poor Law sequence, but recreate it in the form of private, charity-based hospitals, asylums, workhouses, and schools. The orphan provides a figure that personifies the social problems of the poor, encouraging the eighteenth century to develop narratives of resolving those problems by creating new institutions that value the child. In so doing, the poor orphan also provides a figure that solidifies the equation of the child with legal thought, encouraging the eighteenth century to imagine institutions that enact legal definitions, regulation, and oversight of the child.

Although this book focuses on the fictional representation of the orphan and uses those representations to uncover the figure of the wealthy orphan, a factual definition of the orphan that includes socioeconomic and demographic information is in order. The poor orphan allows an investigation into that definition, including the factual reconstruction of the orphan performed by today’s historians. In an attempt to understand the differences between the factual and fictional representation of the orphan, this chapter investigates current historical and theoretical work on the poor orphan, examines eighteenth-century nonfiction’s definition of the poor orphan as part of a problematic collective, and explores eighteenth-century popular fiction’s interest in replotting the poor orphan as a wealthy orphan. The historian’s definition of “orphan facts,” such as the percentages of orphans in given populations, provides a meaningful backdrop for the eighteenth-century social commentator’s definition of “orphan problems” and “orphan solutions.” As this chapter shows, an orphan’s economic status determines if and how he or she appears in eighteenth-century factual records. If the orphan is poor, he or she will appear in records relating to the Poor Law: if an abandoned infant, he or she will appear in nursing-out records; if a parentless or impoverished child, he or she will appear in workhouse or charity school records; if the orphan is of working age, he or she will appear in pauper apprenticeship records. Simply because those records have become the basis of historical study, the orphan’s economic status shapes our current understandings of the orphan. Historians, like social commentators of the past, are often compelled to see the real orphan as a poor orphan.

The eighteenth-century narrativization of the orphan strengthens the correlation between forms of class and forms of fact and fiction: the poor orphan is typically the subject of factual plans focusing on the institutionalization of the child, while the wealthy orphan is the preferred subject of fictional plots focusing on individual self-determination. Factual documents often position the orphan within larger categories of children—“exposed and deserted young children,” “foundlings,” “destitute children,” “pauper children,” and “necessitous children”—that erase the individual in favor of a group definition.3 These children are interpreted as symptoms of larger social problems relating to poverty, including crime, illegitimacy, the idle avoidance of work, and the lack of religious faith. As a result, these children are in need—and what they seem to need most is an institution. The orphan is most commonly addressed in proposed plans for or accounts of “foundling hospitals,” “asylums,” “houses of refuge,” “workhouses,” “working schools,” “charity schools,” and, of course, “orphan-schools” and “orphan-houses.”4 These accounts show that the orphan is a popular topic in eighteenth-century nonfiction and that this popularity can, at least in part, be attributed to the creative factual thinking that the figure encourages: the orphan holds out the promise that social problems can be solved, planned projects can be realized, and lofty moral results can be achieved. The institution can encourage an imaginative narrative that mimics fiction: the institution offers a causal problem–solution structure, follows the trajectory of a beginning/middle/end history, details physical space, actions, and events, and investigates moral motivations. However, the protagonist that should be the heart of an orphan narrative is typically missing: the institution often replaces and even erases the individual.

By avoiding such Poor Law-type structures, the fictional orphan replaces a narrative of institutional regulation with one of self-development. The fictional orphan has little need for the Poor Law, inhabiting surrogate family forms and locating inherited or self-created forms of property instead. The novel might gesture toward the institutions that care for the poor orphan, but quickly replaces them; rather than plot the creation of institutions, the fictional orphan plots the familial success of courtship and marriage, and plots the economic success of inheritance and accumulation. Factual discourse helps to create the conceptual framework through which the orphan is understood as a legal subject, but it then confines that orphan to the institution. The novel reworks that understanding by enlarging the definition of the orphan, imagining the orphan as moving beyond the Poor Law and claiming the estate that requires his or her use of other systems of law, as explored in Chapters 2 through 6.

Narrating the Poor Orphan as a Problem to Be Solved

Defoe’s and Fielding’s novels and nonfiction essays provide insight into this class-based narrativization of the orphan; while their novels feature protagonists who escape their original categorization as poor orphans by gaining property, their essays discuss orphans who seem resigned to a fate of property-less poverty, guaranteeing only charitable pity and institutional regulation. Defoe’s fictional protagonists start their lives and narratives as abandoned or stolen children, left behind by or kidnapped from unknown parents and raised by gypsies or nurses. Motivated by an obsessive desire to accumulate wealth, each uses theft and deception to achieve that goal; the “poor desolate Girl without Friends,” Moll Flanders becomes a rich landowner in Virginia; the abandoned “Son of Shame,” “Beggar Boy,” who is used to “sleeping in the Ashes,” Colonel Jack becomes a plantation owner, slave owner, and merchant; the “Spirit[ed] away,” “disposed of to a Beggar-Woman,” “poor Boy” Captain Bob Singleton becomes a merchant-like pirate.5 Each character moves away from his or her orphan origins quickly, engaging in adventures that typically feature not only personal enrichment, but empowerment over others, ending with the solidification of wealth in the form of sizable property.

Questions of estate are often joined to questions of family. Fielding’s Tom Jones creates a gentleman’s version of the rogue’s picaresque employed by Defoe and joins it to a romance plot that culminates in the resolution of family origins. Like Defoe’s protagonists, Tom is an abandoned child destined to rise above that station. Left as a foundling in the bed of the gentleman Mr. Allworthy, Tom’s narrative ends with the discovery that he is the son of Mr. Allworthy’ sister, which secures his inheritance of Allworthy’s estate and his marriage to the wealthy Sophia Western. Tom’s adventures reveal his innate sense of truth and honor, but also tempt him to engage in decidedly immoral acts, most notably his sexual affairs including one with Mrs. Waters, who is briefly thought to be Tom’s mother. In the Mrs. Waters affair and its intimations of incest, Fielding presents the orphan’s need to rediscover his parents as comedy before fulfilling that need by positioning Bridget Allworthy as Tom’s mother. Defoe takes this need seriously; Moll’s discovery of her mother reveals her incestuous relationship with her brother, which leads her to return to England.

Although Defoe’s and Fielding’s moral construction of these protagonists has been much debated—are these characters rewarded for their immoral behavior?—their factual writing about real orphans takes the form of the moral polemic. Both read the poor child as an indicator of larger social decay, connecting the orphan to economic, familial, and legal concerns in need of definition and resolution. Although their factual writing does not enact fictional plotting, it gives the real orphan a narrative trajectory by equating the child with a problem that must be solved and connecting the orphan to an institution that must be developed. As a result, Defoe and Fielding’s essays indicate the simple problem–solution pattern that much nonfiction writing on the orphan employs. Both writers first define the poor child as a dilemma or threat, often providing or implying a narrative explanation, a backstory of sorts, that details why the child has come to be problematic. They locate the sources of that problem, positioning the poor child within a larger context of social, economic, and moral challenges; both critique the law as a source of the child’s difficulties. Both Defoe and Fielding then imagine solutions to the poor child threatened by abandonment, neglect, or murder, arguing that institutional care offers the promise of saving the child. They detail the workings of that institution, turning their writing to the construction of an institution rather than the construction of a plot. As they detail the institution, they often engage in a bit of imaginative wishful thinking, plotting the success of the imagined poor. Crucially, by imagining the orphan in collective terms, reforming the child provides a means of reforming society.

Defoe and Fielding connect the poor child to the problem of crime and the failure of the legal system, but each differs in his assessment of the child as either victim or perpetuator of that crime. Defoe presents a narrative of victimization; although he does not tell the story of an individual orphan, he implies a generalized narrative featuring an innocent child surrounded by scheming mothers, midwives, and nurses, and unprotected by a legal system that cannot see through those schemes. In contrast, Fielding shows less interest in the child’s welfare and categorizes the poor child within larger classes of the poor, seeing him or her as a potential future practitioner of theft, begging, and idleness. Both writers argue that a solution to these problems can be found in the institutional care and regulation of the child.

Focusing on the problem of infanticide, Defoe’s The Generous Projector argues that a hospital for abandoned children will reduce the incidence of child murder, a crime seemingly encouraged by the dysfunctions of criminal law and Poor Law. Investigating the murder of unwanted children, Defoe explains that mothers and midwives engage in this act in part because they will not be found guilty in criminal law courts. Even if they are tried for murder in the Old Bailey Sessions, they are often acquitted by “a cautious, merciful, and credulous Jury” (9). The jury is too willing to accept the midwife’s tale that the child died because it “was not at its full Growth” or the mother’s narrative that she wanted the baby because she has prepared bed-linen for it: “I wonder so many Men of Sense, as have been on the Jury,...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Figures
• Acknowledgments
• Introduction: The Valued Orphan: Law and Literature
• Part 1 Estate
• Part 2 Blood
• Part 3 Body
• Conclusion: The Valued Individual: Estate, Blood, and Body
• Bibliography
• Index