Category Archives: wills

“Whoso[ever] bulleth my cow …”; of beef and ‘bastardy’ in nineteenth-century Halifax

My current obsession is Wright v. Holgate, a case from 1850 (I know – ludicrously up to date …!). It is going to form part of a paper I’m giving at the SLS conference in Durham at the beginning of September. In fact, I have got so into it that I might use it as a sort of framing device for the whole thing.[1] The paper is about fairly doctrinal legal things (though I’d like to think that there are some deeper insights too) but there is certainly more to the case than I will have time to deal with there, so I think it deserves a bit of a blogging as well.

The case, which appears in contemporary newspaper reports and a law report,[2] starts with a will, that of a cattle dealer from Halifax (West Yorks) a certain Jonas Holgate. Let’s call him JH 1, since, as you might guess, what with naming of sons being a bit conservative at this point, there is also another Jonas Holgate who is relevant here, the less than lovely JH 2. Anyway, JH 1 owned some property in the Halifax area. There were several Holgate offspring, including JH 2 and a daughter, Susannah. JH 1’s will left shares of his property to each of the children, and after them, to their lawful offspring (i.e. legitimate children). By 1850, both JH 1 and Susannah were dead, and there were disputes about the property. The whole thing was in Chancery, under the name Patchett v Holgate, and there is more to it than this question, but one thing which did come up for argument was whether Susannah had lawful issue. A Master in Chancery reported in the affirmative: there was a son, Tom Wright, who was born to Susannah whilst she was married to one Thomas Wright (butcher and cattle dealer). So, young Tom would succeed, we might think. Easy. But no.

It was objected that the child was not the lawful issue of Susannah and Thomas, but was in fact a bastard (specifically an ‘adulterine bastard’): another man was the child’s biological father. Bizarre and cruel as it now seems, this question of legitimacy/bastardy was a crucial one at the time: if Tom was legitimate, he would get the property, but if he was a bastard, he would get nothing. It would be good for the other descendants of JH 1 – JH 2 amongst them – if he was found to be a bastard, since that would make their shares in the old man’s property bigger.

Why did the question of illegitimacy arise here, and how was it solved? Well, it is worth rewinding a few years and filling in some key details of the less-than-happy family life of the Holgate-Wright dynasty.  Susannah and Thomas had married in 1836. In 1839, however, they had separated ‘by mutual consent’. Tom was born on 7th March 1847.  At this point, Susannah and Thomas were still legally married: their separation appears to have been private or informal. There were allegations that Susannah had been having sex (or ‘connection’ as they prefer to say) with people other than Thomas during this separation. As the lawyers in the case make clear, however, the fact that other men might be the biological father of a child was not enough for the child to be held a ‘bastard’ at law – if there was some prospect that the husband was in fact the father – i.e., if he had had ‘access’ to Susannah at the relevant time – then the law was supposed to make it hard to ‘bastardise’ the child, deploying a presumption of legitimacy.

Thomas gave an affidavit, swearing that he had in fact had ‘connection’ with Susannah on a number of occasions since 1839. Both had remained within the same area, sometimes both in Halifax, and at other times Thomas went as far as Rochdale (Boobdale as one of the newspaper machine-transcribed accounts has it – foxed by a smudge along the bottom of the row – and I know I shouldn’t chuckle at breast-related slips, but, clearly, still got some growing up to do …) but actually that is not so very far from Halifax, and his cattle-focused work meant that he had to come to the cattle market at Halifax every so often. He stated that, on these occasions, he and Susannah had indulged in bouts of  outdoor connecting. This did not pass the lawyers without objection – one apparently finding Thomas’s claim that he had ‘had  intercourse with Susannah a number of times, in open air, within half a mile of Halifax’ ‘utterly incredible’.[3] There was some wrangling over what sort of evidence could be used to get to the bottom of paternity disputes like this. I will get into that a bit more in the SLS paper, but for now, let’s just say that it was decided to send the dispute about (il)legitimacy over to a common law court for determination, so off it went to Liverpool, to a hearing before Cresswell J (the marvellously named Sir Cresswell Cresswell) and a jury. It now goes under the name of Wright v. Holgate (or Holdgate), or in the English Reports, as Tom Wright (an infant) v. Jonas Holdgate and Others.

After the disputes about whether it was acceptable to hear Thomas Wright’s affidavit about bouts of spontaneous al fresco connecting with Susannah, one might have thought that care would be taken to ensure that only unimpeachably fair and relevant evidence was allowed to reach the jury’s ears. Not at all. There was a great deal of gossip about the deceased Susannah, who, clearly, was not able to defend her own reputation or her son’s interests. She was no better than she ought to be, and violent with it. It is hard to see how violence could be relevant to the issue, as opposed to simply being a bit of additional mud-slinging. More prejudicial than probative, anyone?  Probably not surprisingly, a jury of Victorian men who passed a cetain property qualification, decided to withdraw from her, from Tom and from Thomas the benefit of the doubt. A bastard Tom was found, and that was the end of his participation in the Chancery suit.

There is certainly much here which seems deeply questionable from a modern, liberal, perspective, in any case deploying the concept of ‘bastardy’. I think that there are also relevant criticisms of this particular case within its own time and terms – thus, I think that the interpretation of rules of evidential exclusion were inconsistent, and the summary of the law on bastardy prior to 1850 certainly included inaccuracies. More on all of that in the SLS paper.

The thing I want to finish on here is a little reflection about the role of Thomas Wright, and the fate of Tom Wright. As noted, following the decision in Liverpool, Tom Wright disappeared from the property case. He was a bastard, as far as the law was concerned. The case was focused on his status with regard to his mother’s family, but the finding also implied, as a matter of logic, that he was not the legitimate child of Thomas Wright either. Thomas would have been entirely within his rights to leave the child, and his maintenance to others, such as the local workhouse, or one of Susannah’s alleged ‘paramours’. Apparently he did not do this, however. I checked census returns for 1851 and 1861 and turned up something which struck me as a bit heart-warming. ‘Thomas Wright’ is not, of course, the rarest of names, but when I found a pair of Thomas Wrights living in Rochdale, with a man named Wilkinson (the same surname as of one of our Thomas Wright’s employers, in Rochdale), with young Tom having the right place and year of birth, and Thomas senior and John Wilkinson described as ‘butchers’, I think I can be cautiously optimistic that I have found a less-than-miserable ending for our pair. Thomas the elder has gone by 1861, but 14 year old Tom is now a ‘pupil teacher’, living with John Wilkinson and others, which does seem to indicate a degree of fortune greater than one might have imagined. Thomas Wright comes out of the story rather well, I think. He swooped in after Susannah’s death, when JH 2 had put Tom into the local workhouse, had paid for his care, and clearly had taken him off to try and make a life together in Rochdale. I suppose that, up to 1850, we might have interpreted this as an attempt to keep control of a potential cash-cow (sorry) – as Thomas did involve himself in the litigation surrounding JH 1’s property. After the finding of bastardy, however, any such ungenerous interpretation has to be abandoned. I think it’s hats off to Thomas Wright. Perhaps he was ‘in a low condition of life’, as one newspaper sneered,[4] but he comes across as rather less mean-spirited than others in the tale, and, in particular, the charmless uncle of young Tom, Jonas Holgate 2.


1st August, 2021.





[1] It is a bit of a gift that the case has a heavily bovine context, since there is a frequently-trotted-out proverb about legitimacy and marriage in medieval and later sources, ‘Whoso bulleth my cow, the calf is mine’ – grim but memorable, isn’t it? Will be working with that, though have rejected a more elaborate metaphorical structure running that proverb together with another common tag in adulterine bastardy, relating to the husband’s presence ‘within the four seas’. May have looked up ‘sea cows’ at one point, and toyed with the idea of finishing with a picture of a Steller’s sea cow (extinct), but luckily realised that that was too pretentious even for me.

[2] Newpapers, see, e.g., Times  20th July, p. 7 and 20th August 1850, p. 7, Manchester Guardian 21st August 1850, p.6. Halifax Guardian  24th  August 1850, p. 3,  27 July 1850, p. 7; Globe 20th  August 1850, p. 4; Evening Mail 22nd  July 1850, p. 3. Report: ER 175 503; 3 Car. & K 158. (There are also potentially relevant papers in the National Archives: TNA C 14/847/H142, but I am still not able to get at those).

[3] Evening Mail 22nd  July p. 3.

[4] Northern Star and Leeds General Advertiser, 24th  August 1850 p. 8.

Photo by Quaritsch Photography on Unsplash

Archival Amour

It’s not quite the season of compulsory romance, but Valentine’s Day, and, for those lucky enough to be Welsh, the problematic Dydd Santes Dwynwen (Jan 25th – none of your Burns Night here, thank you very much)[i] will soon be upon us. There is, therefore, half an excuse to write about the online National Archives online exhibition about documents relating to love, which can be found at  With Love – The National Archives

It includes:

  • one of Ramsay Macdonald’s love letters (nice handwriting, no obv. LH content, though suggestion of fantasies of husbandly chastisement – rather questionable);
  • one of Robert Dudley’s letters to Elizabeth I (scratchy-quilled Early Modern writing, bit grovelling tbh, and no LH);
  • a letter of 1851 by a man called Daniel Rush, to the Poor Law Board (Law! Here we go! An absolute corker – commentary on the cruelty of those administering the law, and also citing the 1847 Consolidated General Order, ruling that there is no requirement to separate ‘pauper’ married couples to put them into the workhouse – really interesting on ‘lay’ knowledge of the law);
  • the Instrument of Abdication of Edward VIII (constitutional law, I suppose, but, oh, what appalling people);
  • a 1966 letter by Harry Houghton to Ethel Gee (perhaps ignorantly, I had not heard of these two – they were found to be Soviet spies, part of the Portland Spy Ring. This was a very kind letter consoling Ethel when her mother died, written from prison).
  • a 1541 letter from Catherine Howard to Thomas Culpeper (obvious LH link – treason charge etc. It signs off with ‘Yours as long as life endures’ – not that long, as it turned out.)
  • two anonymous letters from the 1740s (seeking ‘Romantick happiness’; an argument as to where this lies, with a particular woman or with L.H. – clearly, to my mind, not another woman but Legal History!)
  • a love letter from the 1930s, from Cyril to Morris, from (LH!) a period when homosexual relationships were likely to fall foul of the law (awkward and intense and very English)
  • a love song from the later 15th C or 16th C (The song itself doesn’t do anything for me, other than making me hum ‘Alone’ by Heart under my breath, but it’s apparently on the back of a document about a riot which – LH – would float my boat rather more)
  •  a letter from James Gillespie to the Prime Minister, Lloyd George, from 1919 (terrible circumstances – following race riots in South Wales – this black resident of Barry wanted to leave, but not without the family he had started there).
  • Wills – obvious LH interest just in the nature of the documents. We have Anne Lister’s will (1841) (She of ‘Gentleman Jack’ fame –interesting bit about provision disappearing if Ann Walker should marry – but some such idea was often present in provision for ‘widows’, certainly in local jurisdictions) and Nelson’s will (1803).


A very nice idea, and well presented. Sadly, I must report that it is inflaming rather than soothing my own particular pining – for the archives themselves. Very much looking forward to The After Times when I can get my hands on some MSS once again.

[i] All is explained here: How St Dwynwen wrongly became known as the Welsh Valentine… – Blog Ysgol y Gymraeg / School of Welsh blog – Cardiff University

Matters Testamentary: first thoughts on Law Commission Consultation Paper 231, Making a Will

I have just got through the very wide-ranging Law Com Consultation Paper on wills: a huge project, dealing with a important area which needs reform, though perhaps not something which is going to be at the top of T. May’s ‘to do’ list just at the moment.

There are some interesting developments in the ways in which the Law Commission is making its consultations available. Alongside the usual formal document and English summary (still pretty long!), I was pleased to see a prominent  summary in Welsh (Hwre!)  and also the well-thought-out ‘Easy Reading’ version. On this subject in particular, it seems important to get the views of people who would struggle with the usual academic/legal presentation. I do also love the infographics: these seem to have appeared quite recently in Law Com publications. But there is only so far you can go, and ademption and fraudulent calumny would not be easy to illustrate. In the end, this is a pretty involved area, and I suspect that most of the respondents to much of the consultation will be academics and/or lawyers.

Given the complex nature of the subject matter, the main document does a good job of setting out the areas which might be changed or questioned, as clearly and succinctly as possible. It is, however, rather too quick to assume that testamentary freedom is of overriding importance to a large majority of people (see, e.g. 1.12). If press reactions to the recent Ilott case show us anything, it is that ideas about personal responsibility for family members and dependents, and wider responsibility to society are also important to many of us. The extent to which rights over property should outlive us, allowing our dead hands to retain some grasp over assets which were ours in life, is and should be a matter for debate. Attention to the history of all of this demonstrates that English common law’s championing of testamentary freedom is relatively recent and has, at almost all times, been subject to limitations.

There is plenty which is picturesque in the language of succession law(e.g. I’ve always liked the idea that a will is ‘ambulatory’ – picture a formal document wandering around the place) and plenty which seems amusing about wills written on eggshells, and the many and various ways in which people can get things wrong, but there are also worrying cases, particularly those regarding vulnerable testators and the possibility of their being pressurised or tricked into making their wills in particular ways.  The paper makes some interesting suggestions about how to try and enable vulnerable people to make wills, while guarding against dubious behaviour on the part of those around them. In doing so, it has to deal with the messy state of play surrounding pleas of’undue influence’ and ‘lack of knowledge and approval’. The idea of some sort of support scheme for people whose capacity is diminished but not wholly absent, allowing them to make a will, seems humane and in line with international obligations, but whether this should be in any way state funded is much more difficult. Where should enabling those with assets to leave to depart from intestacy rules lie on a list of priorities which includes much more basic medical and social care needs? In addition, the gentle suggestion that medical and care staff should not be discouraged by their institutional policies from becoming involved in the will-making of their patients (1.33) seems to me to be questionable. Is facilitating ‘testamentary freedom’ really part of the appropriate role of these people and institutions, so that they should involve themselves in will-making, and the attendant risk of future litigation over the will of a patient, rather than looking after other patients who do not have assets to distribute? That would seem to be transforming this ‘freedom’ to a right – and one which trumps various, more basic and universally accepted, rights of others.

The paper has a go at the implications and opportunities of computing and the internet. Yes, Land Lawyers – shudder with me at the echoes of ‘e-conveyancing’- there are suggestions concerning the possibility of  e[lectronic] wills. The lessons of e-conveyancing seem to have been learned, though, and there is no great fanfare about this, just some discussion of the possibilities and difficulties and the suggestion of an enabling provision to deal with this as and when the technical difficulties are cleared up. So despite the Mirror’s excitement ( ), it is probably unlikely that we are about to see wills made by drunken text message.There is also some work on various electronic property or ‘property-adjacent’ things. I do look forward to seeing hardcore property lawyers getting into debates about rights to characters in online games [though perhaps they would enjoy ‘In the Toils of a Harlot’: the online undue influence game].

At times, reading this made me wonder about the role and process of consultation. On the one hand, too great a role seems to be given to those who choose to reply: thus, some of the consultation questions look as if they would be better answered by a solid empirical study, rather than by way of a question thrown out to all who wish to involve themselves – e.g. q 2 about experiences of the impact of making wills and disputes over wills after T’s death. Wouldn’t we get a more solid answer if there was actually a proper survey on this? On the other hand, those who choose to respond to the consultation may feel that they are regarded as being less important than those already sought out for ‘pre-consultation’ and labelled ‘stakeholders’. I am not fond of this word in any case, except in a gambling context or in relation to Buffy the Vampire Slayer. It’s an unthinking borrowing from corporate-speak of the worst kind, and it needs to stop. Leaving that aside, calling some people ‘stakeholders’ appears to me to give prominence to certain individuals or groups over the public at large. In this context, I am not sure that anyone should be regarded as having more of a ‘stake’ than anyone else: this law applies to all of us. As with the totemisation of testatory freedom, it plays down the impact on the public of changes to private law. It may well be sensible to talk to particular individuals and groups before writing a consultation document, but that is more to do with their particular expertise than their ‘stake’. Of course, we don’t like using the ‘e-word’ these days, do we?

GS 15/07/2017

A case of snow

A trawl for appropriately chilly cases brought in one interesting nineteenth century dispute. Ommaney v Stilwell (1856) was a Chancery case concerning a will and the question of which of two men – Edward Couch and Captain James Couch, his father, had lived longest.

Edward was mate of the Erebus, sailing off from England in 1845 with the ill-fated expedition of Sir John Franklin to the Arctic. He made a will in 1845 leaving everything to his father. Edward was not heard of after June 1845, and, by 1856, it was assumed that he had died, with all of his fellow-explorers. Captain James Couch died in January 1850 – but should it be presumed that Edward had died before that point?

The case considered evidence of the man who went looking for Franklin’s expedition in 1853-4, Dr Rae, who gives a fascinating – and very snowy – account of his efforts.
He had traded with ‘Esquimaux’, acquiring several objects formerly belonging to men on the Franklin expedition, and being told that, in April-May 1850, the ‘Esquimaux’ had met a party of starving foreigners who said their ship had been crushed by the ice, but that in 1853, they had found the bodies of several of these men. Evidence of goose-shooting fixed the time of the demise of the party at May-June 1850. There was no mention of the apparent cannibalism Rae found from the state of the bodies.
The original expedition included around 130 men, but the party encountered alive then dead in 1850 was only around 40.

Sir John Romilly, the Master of the Rolls, exclaimed at the difficulty of the case. He made a decision, in the end, on the basis of likelihood of a strong young man surviving his father (as in the commorientes rule which still prevails under the Law of Property Act 1925). I am not sure that I would bet on someone on a doomed Arctic expedition having survived a home-based person, however old.