Tag Archives: adulterine bastardy

‘Four seas’ and an island delusion: some thoughts on ‘bastardy’ doctrines

[This was also posted last week on the Centre for Law and History blog]

In August 1850, a jury in Liverpool heard the case of Wright v. Holgate. The jurors’ job was to make a decision about the ‘legitimacy’ of a child, Tom Wright. Was this three-year-old the ‘lawful’ offspring of Thomas Wright, butcher and cattle dealer, and his late wife, Susannah, or was he another man’s son, and thus a ‘bastard’ (specifically, an ‘adulterine bastard’)? The question had arisen during a dispute about property of the Holgates, Susannah’s family, who were cattle dealers of some standing in the Halifax area. If Tom was ‘legitimate’, he had a share; if he was a ‘bastard’, he did not. The jury heard a selection of views on the former spouses from acquaintances and neighbours, brought in to comment on whether they had had the opportunity to have sex at the relevant time, so that Thomas might be Tom’s biological father, and on the character of Susannah. She was portrayed, in the somewhat gossipy testimony,  as ‘no better than she ought to be’, and given to entertaining a variety of men other than her husband at her house. After only a short discussion, the verdict of the twelve male jurors came back: ‘bastard’.[1]

 

As far as the law of the time was concerned, that was the end of Tom Wright’s importance, and, since the relevance of ‘bastardy’ in legal and social terms diminished massively over the course of the twentieth century, this case might well raise in the minds of modern legal scholars that cold dismissive phrase: ‘of no more than antiquarian interest’. Even so, I am going to use this post on our newly-launched blog to suggest that there are, in this case, and in this area, some things which are worth the attention of thoughtful legal scholars of the twenty-first century, as well as those of us who are unashamed of our antiquarian tendencies.

 

‘[B]ound in with the triumphant sea’ [2]

Though the case ended up in a common law court in the port city of Liverpool, much of the action had taken place inland, in Halifax and Rochdale. That being so, my maritime references might seem a bit inappropriate, but there is a justification for getting a bit nautical when considering the law of adulterine bastardy. Accounts of it often mention a particular test for whether or not a husband would be presumed to be the father of the child: had he been ‘within the four seas’ at relevant times for procreation? The phrase was mentioned in the judge’s summing up to the jury in Wright v. Holgate:

‘When a married woman has a child, the presumption is in favour of its legitimacy. Formerly, indeed, the presumption was, that if the husband continued within the four seas, and was alive at the child’s birth, such child could not be a bastard. But now the law allows inquiry…’

 

Here, we see the splendidly named judge, Sir Cresswell Cresswell, taking a moment to contrast the enlightened times in which he and the jurors were living with what he saw as the less perfect doctrine of former times. He felt it important to tell them that the question as to whether a husband was, or was not, ‘within the four seas’ at relevant points was once  something close to being decisive of the legitimacy of a child borne by his wife: if the opportunity of access was shown, using this criterion, no further inquiry as to the probability of there having been sex between the spouses, or the likelihood of somebody other than the husband being the child’s father, would be permitted. As well as the touch of self-satisfaction that things were so very much better in the world of 1850, we may note that there is something of a lack of specificity as to just when ‘formerly’ was. The legal past is an undifferentiated mass, unworthy of closer consideration.

In fact, the law on adulterine bastardy in general, and the place of the ‘four seas’ idea within it, had been far from unchanging over previous centuries. My research in this area has led me to conclude that the question of whether or not the husband was ‘within the four seas’ was not always – perhaps not usually – quite as central as Cresswell’s statement implies. The treatment of the ‘four seas’ phrase, from its first appearances in medieval cases,  shows different levels of emphasis, as well as movement between less and more literal understandings, and between geographical and political interpretations of the ‘seas’ and the land they were taken to enclose.

There were always difficulties with delineating the ‘four seas’. Despite Shakespeare’s best efforts to suggest that it was a ‘precious stone set in the silver sea’, England never has been, an ‘isle’ (‘sceptred’ or otherwise). The inconvenient existence of a land border, rather than a sea, between England and Scotland was never quite overcome, there were complications to the west: was Ireland ‘within’ or ‘without’ the western sea, and what of more distant ‘possessions’ of the English crown? The neat phrase ‘within the four seas’ did not make a very sure foundation for a rule about presumed legitimacy, and it was de-emphasised, and weakened in practical importance, from the eighteenth century onwards.

Its day was long over by 1850, yet it continued to hold the imagination of those discussing this area. Sir Cresswell Cresswell was not alone in his reference to ‘the four seas’; they continued to echo in commentary into the twentieth century. This lingering is probably due, in part, to the power of a well-turned phrase on the mind and memory of common lawyers. An attractive image or phrase may draw attemtion to one part of a more complex area of doctrine, at the expense of inconsistent or qualifying factors which are less amenable to neat encapsulation.[3]

That leads me to ask why ‘within the four seas’ was an attractive concept to common lawyers of the ninetennth and twentieth centuries. I would like to suggest that its appeal lay in its fitting in with broader currents in the self-image of the common law, as a robust, independent, intellectual ‘island’, keeping at bay the ‘foreign’ forces of civil law and canon law. The law on bastardy was marshalled as an example of the distinctive nature of common law, holding back the tide of other ideas. An account of another, more prominent, nineteenth century ‘adulterine bastardy’ case was, for example,  at pains to point out England’s defiance of attempts to introduce ‘foreign’ rules with regard to legitimation:

‘In England the sturdy independence of our ancestors soon checked the encroachments of the priesthood. Neither the civil nor the canon law ever formed part of the law of the land.’[4]

Perhaps it is not too much of a stretch to imagine that there was mutual reinforcement between the idea of the common law as an intellectual island, aspects of its idiosyncratic and precocious centralised development acting somewhat as  ‘a moat defensive to a house, against the envy of less happier lands’, and the idea of the pre-eminence of a test founded upon the assumed existence of England as a discrete and identifiable sea-bordered landmass.

 

Concluding and continuing thoughts: a father for ‘no man’s son’, dried up doctrine and Doggerland

I started with a young child, his future prospects apparently settled by a brief jury discussion and a stark verdict of ‘bastard’. Another phrase which will be familiar to those who have looked at this area, (or, indeed, at nineteenth century literature), would seem to apply: as a bastard, he was filius nullius – no man’s son. If he really was regarded as not having a father, we might have expected his care to be left to the local workhouse. I am cautiously optimistic, however, that entries I have found on the census for 1851 and 1861 show that Thomas Wright, despite having been found to be a ‘cuckolded’ husband, and not to be the father of Tom, did look after the child, providing a home for him in Rochdale, and setting him on his way to receiving at least some education. As with ‘within the four seas’, so with ‘filius nullius’:  too great a focus on a well-turned phrase, taking as literal what was understood to be at least partly metaphorical, could divert us from a more complicated reality.

Like the ‘four seas’ idea itself, much of the law which obtained in the case of Tom Wright has now been swept away, and, if we want to know who is a child’s biological father, then DNA testing can give a virtually conclusive answer. Nevertheless, I think these remnants have much to tell us about lives and thought of the past, about solutions to what seemed to be matters beyond human knowledge, about proof and policy, about how common lawyers of one era thought of and used the law of the even deeper past. Since we know that a vivid maritime image can stay with us, I will end with the one which always comes to my mind when dealing with such material: it is that of Doggerland – an area formerly of considerable human activity, now beneath the sea as a result of climate change. Most of us will never visit it, but it is important to know it is there, both for practical modern purposes, and also for deeper understanding of those who have navigated these spaces before us.

Thank you for your company on this brief voyage.

Gwen Seabourne

August, 2021.

[1] 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.

[2] Shakespeare, Richard II, Act II, Scene 1, John of Gaunt.

[3] See, e.g., Andrew Culley and Michael Salter, ‘Why study metaphors?’,  K.C.L.J. 15 (2004), 347-366.

[4] Denis Le Marchant, Report of the Proceedings on the Claim to the Barony of Gardner (London, 1828), xxx.

Images – the watery one is from the port of Liverpool, ft. a dock of the period and some water, which seemed appropriate. The bovine one is a nod and a moo to the trade of the Holgates and Wrights – cattle in the Halifax area).

This material comes from a current project on bastardy, I will be presenting a fuller version as a paper at the Society of Legal Scholars conference in September 2021 (paper all written and recorded in case of emergency – so I did something useful in recent self-isolation!), and some of it will probably feature as part of a chapter I am writing for the ‘Known Unknowns’ project, headed by Dr Andrew Bell and Dr Joanna McCunn

Presuming expertise: opinions on prolonged gestation in the Barony of Gardner case

In the course of researching for a paper on how the law, over a long period of time, and in different jurisdictions, has handled scientific uncertainty with regard to the beginning of (legally valued/protected) life and paternity, I have become a little obsessed with an a little corner of family/succession law, that of ‘adulterine bastardy’. An ‘adulterine bastard’ was a child born to a married woman, but whose biological father was not (or was held not to be) the man married to the woman at the time of conception. Before the development of DNA testing, it was impossible to be sure on this matter, and before the development of blood testing – which could at least rule out some men as fathers – in the early 20th century, matters were even less certain. Central to the legal strategy found in several different legal systems,  for dealing with such uncertainty, was some form of presumption that a child born to a married woman was the legitimate offspring of her husband, unless that was impossible. Impossibility became watered down over time in various ways, but I will not explore that here. What I will discuss is one aspect of this little niche area, and its potential impact and interest for wider areas of study. This aspect is the question of the upper limit for human gestation, and the exploration of this question in the Barony of Gardner case of 1824-5. An account of this case is easily accessible online, thanks to archive.org  https://archive.org/details/reportproceedin00ofgoog/mode/2up and it seems to me a really interesting resource for teaching both Legal History and also areas such as gender and history, and the history of medicine.

The case concerned the right to a peerage – guess what, the Barony of Gardner. Can’t say I’ve ever heard of it – not one of the big ones, but there are those who value such baubles above and beyond the money and land, and that was all the more so a century ago.

The source, Denis Le Marchant, Report of the Proceedings of the House of Lords on the Claims to the Barony of Gardner (London, 1828),  was written by a barrister – and it should be noted that he was not exactly a disinterested fan of obscure legal points, but counsel for one side in the case (the side of the petitioner, i.e. Alan Legge Gardner, apparently legitimate son of H and W2, in opposition to Henry Fenton Jadis/Gardner, who claimed to be the legitimate son of H and W1, but was, problematically, born after a long absence by H, which would mean that, for him to be legitimate, the pregnancy would have to have lasted 311 days). The case was heard in 1825 before a committee of the House of Lords.

There is quite a story – of foreign travel, adultery and apparently brazen lying. What I want to focus on, in particular, however, is the lengthy (though not complete) account of the examination of witnesses on the question of the possible length of gestation (and whether a gestation of 311 days was possible). This begins on p. 13.

There was a long list of medical men, variously described as physicians, surgeons, accoucheurs, and pairs of these titles. Some sported ‘M.D.’ labels, most did not. These are their names:

Charles Mansfield Clarke, accoucheur

Ralph Blegborough, M.D.

Robert Rainy Pennington, Esquire, accoucheur

Robert Gooch, M.D., accoucheur

David Davis, M.D.

Dr. Augustus Bozzi Granville, physician

Dr J. Conquest, physician

John Sabine, Esq. surgeon and accoucheur

Dr. Samuel Merriman physician and accoucheur

Dr. Henry Davis, physician

Dr. Richard Byam Denison,physician

Dr Edward James Hopkins accoucheur

Henry Singer Chinnocks, Esquire, surgeon and accoucheur

Dr. James Blundell, physician

Dr. John Power, physician accoucheur

After the ‘medical men’ had had their say, some women were allowed to speak, both in a ‘professional’ capacity, and also to give evidence as to their own experiences as to length of pregnancy. Mary Tungate. midwife was followed by the following women who had either experienced, or were experiencing, long pregnancies: Mary Wills, Mary Summers, Mrs. Mary Gandell, Isabella Leighton, Mary Parker, Mrs Sarah Mitchell. It is interesting to imagine the presence of these women, and especially pregnant Mary Parker, in the masculine environment of a House of Lords committee. I was interested to see that discussion relating to the midwife Mary Tungate seemed to assume that she was to be assimilated to a ‘medical man’ for the purposes of an exception to the rule against hearsay evidence: 170-1. The women were all deployed by the side wishing to show that it was not impossible that the child born after 311 days of absence was legitimate. It was admitted – 247 – that ‘they were not persons of high rank or distinction, — no one can think that such persons would expose themselves to a cross examination on the details of their pregnancy’. This does not seem very polite treatment for women who had submitted themselves to this ordeal.

 

The ‘medical men’ (and Tungate) were routinely asked the length of time they had spent in practice, the extent of their experience, their views of normal gestation periods, and the possibility of longer periods. Most answered around the 39-40 week mark here. Some cited instances of longer periods and thought the 311 day pregnancy a possibility, while others were quite sure that it was not. There were some interesting outlier views – including a late survival of the idea of differences relating to the sex of the foetus, with boys staying longer in the womb than girls – 152. Questions also demonstrated something of a lay obsession with the formation of nails as an indicator of gestational age – e.g. 15, 37.

There were some interesting exchanges on matters of authority (which was more important – the learning of well-known medical writers, or the experience of doctors themselves?) and of evidence – could the medical men use their notes (answer – this seems to have been allowed, if they were in their own writing and contemporaneous, as an aide-memoire: see, e.g., 60, 66, 119, 136. The meticulous note-taker, Dr Granville, in the end had some of his patients brought in, so as to circumvent objections that this was not the best, or legitimate, evidence – 87]

There were also some slight episodes of sparring about confidentiality – it is interesting to see ideas of patient confidentiality at this early stage – see, e.g., 66, 133. This concern about confidentiality apparently did not apply to the wives of the medical men themselves – two of these women were given as examples of women who had had long pregnancies – 67, 111 – (and appear to have kept period diaries – I remember being told this was a good idea, in the excruciating one-off assembly on this topic given at my school – obviously the reason was to be ready for possible evidence before a House of Lords committee…).

[Should you be interested in the result, Alan Legge Gardner won, and became Third Baron Gardner. Honour and bloodlines prevailed. Or something. That seems of considerably lesser interest than the enquiry itself, which seems to have been on a fairly large scale, and to have shown some interesting differences of professional opinion in this still-early period of formalisation of medical training and expertise. I am still working on how it fits into a longer story of uncertainty in this aspect of ‘the secrets of women’, which remained officially mysterious, and open to some very odd theories and evidence, into the twentieth century].

 

GS

30/11/2020

Updates:

NB – the Gardner/Jadis case was mentioned in a ‘Who Do You Think You Are’ investigation on Frances de la Tour: Frances De La Tour – Who Do You Think You Are – Society scandals, an illegitimate child, and a landmark divorce… (thegenealogist.co.uk)

By the evil magic of the internet, I have been linked up to this – Isabel Davis, The Experimental Conception Hospital: Dating Pregnancy and the Gothic Imagination, Social History of Medicine, Volume 32, Issue 4, November 2019, Pages 773–798, https://doi.org/10.1093/shm/hky005 – dealing with disturbingly rapey 19th C sci-fi writing sparked off by the Gardner case. What an interesting article (and especially the Gothicism and balloon-related bits). Law, sci-fi and Gothicism (and a couple of well-judged points about the limitations of the blessed Foucault): if it could just include a vampire or two, it would tick all of my boxes.

From Wikipedia.

Loss of entitlement

Continuing to research the weird and wonderful world of ‘adulterine bastardy’, including some interesting claims for very long pregnancies, and some questionable treatment of women, as witnesses and as possible ‘adulteresses’, I have been reminded of the recent run-out of this area of law, in relation to the holding of peerages. The Pringle case,  In the matter of the Baronetcy of Pringle of Stichill [2016] UKPC 16 https://www.bailii.org/uk/cases/UKPC/2016/16.html featured the displacing of a line which had, since the early 20th century, been in possession of the title. Then DNA testing revealed that there was no chance that the person presumed to be entitled in the current generation was actually a lineal descendant of the first grantee (which is the requirement in this sort of case). The case gave rise to some interesting and humane comment – I particularly valued G. Black, ‘Identifying the legal parent/child relationship and the biological prerogative: who then is my parent?’ Jur. Rev. 2018, 1, 22-41, and B. Häcker, ‘Honour runs in the blood’, L.Q.R. 2017, 133(Jan), 36-41, which explored comparative rules on challenging paternity, and considered the problems associated with upsetting family units in situations well beyond that of peerages. My own thought, though, was that, while, in general,  it is absolutely right to be cautious about wholly prioritising genetic over social relationships, especially if the latter are long-lasting, in the context of hereditary titles, a strong focus on DNA could serve a very useful purpose. I have no time for the whole business of hereditary entitlement to ‘specialness’, from the monarchy downwards – it is embarrassing, babyish nonsense – but even those who shut their critical faculties down with ideas about the magical powers of particular families would have to think again if they were confronted with the likely fact that they were no more immune from infusions of unexpected genetic material than anyone else’s family. A respectable Legal Historian cannot of course suggest that it would be worth a thought for anyone invited to a royal garden party or the House of Lords bar, who has the opportunity to collect a DNA sample.

29/11.2020.