Tag Archives: 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

“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.

GS

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

Blood and impurity: a Victorian ‘bastardy’ case

… And the ‘bastardy’ work continues to bring up unexpected things …

Just now, Hooper’s Law of Illegitimacy led me to this insight into the sex life, or at least views of sexual behaviour, of the Victorian judge …

The case is Bosvile v Attorney General (1887) 12 P.D. 177, a case involving a dispute as to whether a child, Arthur, was or was not to be held the legitimate son of Bosvile. Mr and Mrs Bosvile’s marriage does not seem to have been all a respectable Victorian might have wished – I am afraid there was a ‘paramour’ in the picture. While there was a presumption that a husband was the father of his wife’s child even if she did have a paramour, this was, by this point, very much open to rebuttal, as long as there was what a jury considered very strong evidence that H was not the father. Naturally, this state of affairs (!) brought in the possibility of some fairly intimate revelations (as well as showing differences of opinion, and doubts, about possible periods of gestation).

In this case, clearly there had been evidence from a servant – a lady’s maid – about the timing of Mrs Bosvile’s periods. The period of gestation in the case was just about possible, according to contemporary views, but it could not be stretched back any further than the point at which Mrs Bosvile had left H. The lady’s maid’s evidence was that at that point, Mrs Bosvile was menstruating. This may have been used in two distinct ways. First, it seems to have been used in relation to likelihood of conception at that point – so, if H and W did have sex, conception would be unlikely. That’s one thing. But  there is also a strong suggestion that husbands and wives would be unlikely to have sex if W had her period. Butt J (let’s be mature and not make any jokes about the name …) was pretty sure on that point (at 183). No doubt Victorian judges would find the idea a little messy and unpleasant, but, given the general strength of both presumptions of legitimacy, it is interesting that a bit of blood would be thought to tell against it. The tide was definitely on the turn in relation to these cases, and the evidence acceptable to rebut a presumption. A nice little counterfactual question is: what would have happened, if there had not been a breakthrough in terms of blood testing, and then much later DNA testing, for paternity, in the 20th C?

GS

21/7/2021

Image – Photo by Joel Filipe on Unsplash

Discerning paternity: James Percy and his moon-mark

And today in bastardy studies …

I have been mostly looking at an odd little area: the use of evidence of resemblance in assigning paternity of ‘bastards’. This has taken me down an another interesting little side-road, to the story of a trunk-maker called James Percy or Piercy (1619-c. 1690), who claimed to be related to the powerful Percy family (earls of Northumberland, wardens of the March, general top-dogs in the north of England over several centuries ….), and, indeed, to be entitled to inherit the earldom This will not be new to Early Modernists, or peerage fanciers, I dare say, and JP even made it into the ODNB, but I had not come across the story before.

James was not a bastard, but he is relevant to investigations of paternity more generally, in that part of the case was a physical resemblance, to wit, … a mole in the shape of a half-moon, which was the emblem of the earls of Northumberland:

‘God hath been pleased to make a true decision himself, which may be a president, for he sent the claimant from his mother’s womb with a crescent into the world, which is God’s ensign of truth, and the very badge belonging to the Percies, earls of Northumberland.’ (The case of James Percy, the true heir male and claimant to the earldom of Northumberland (London, 1680) p.7)

This mole/birthmark seems not to have made it into the ODNB’s telling of the tale, which outlines James’s relatively humble upbringing and the fate of his claim to the earldom, launched in 1671, the previous (11th) earl having recently died, without a living son (his wife having given birth to a stillborn posthumous child in 1670/71). Not hugely surprisingly, the dowager countess, mother of the 11th earl, was not having it. She went hard on behalf of Lady Elizabeth Percy, the more expected contender, and used all sorts of procedural and practical tactics to make it hard for James to make out a case. There were proceedings in the House of Lords, petitions to the king and other recipients. James’s story was not constant. Things dragged on for about 20 years, with James publishing his argument in an attenpt to gain support for the claim, and the case was only finally kicked out by the HL in 1689, with more than a little cruelty (see the ODNB entry for the ‘public humiliation’ which was ordered for poor old James, but probably not carried out).

So – an interesting story, but one which has been somewhat twisted in its reception in some legal sources. My route into the story was via 19th and 20th C reports of bastardy/exhibition of child cases from US jurisdictions, which were concerned with whether or not it was appropriate to give any weight to resemblance between a child and the man alleged to be its father. Percy’s story reaches the American cases via citation to a slightly throw-away footnote in Howell’s State Trials 12, p. 1199,  in the report of another case entirely. Some of the US reports make fairly expansive claims about what the law was, or had been, in England, and the case of James Percy is cited as uncomplicatedly showing that evidence of resemblance as an indicator of paternity was perfectly fine, and that this applied to bastardy cases (despite the fact that James was claiming not to be a bastard – otherwise of course he could not feasibly have claimed to be earl of Northumberland, entitiled types being rather strict on this point). I have more to do on resemblance evidence in paternity cases, but am not convinced that the crescent moon mole in Percy could really support the conclusions which seem to have been drawn from it.

GS

19/7/2021

 

Image – a crescent! c/o Wikimedia Commons. Really wanted to find a proper Percy moon and shackle, but best I can do is this slightly banana-esque number. Odd shape for a mole, isn’t it?

 

Byways and rabbit holes in ‘bastardy’ research

Today, I have mostly been creating a very interesting internet search history by looking up variations of the word ‘bastard’ in various legal and historical databases. I have a legitimate (!) reason to be doing this , as I prepare a paper on such things for the SLS conference, but it does still feel a bit like being back at school and looking up rude words in the big German dictionary in preparation for an (eventful) exchange trip to Hamburg.

Anyway, all of this searching revealed some interesting uses of ‘bastard’ – the expected ones (status, insult) plus some more metaphorical, with various products and concepts described this way (not always with the same implications). This will all be useful stuff for the SLS paper. But I spent a happy few minutes going off down another path, when a ‘bastard’ reference brought me back to questions of sex and gender, and the way in which they were understood in different historical and cultural contexts. This is something I touched on in c. 1 of Women in the Medieval Common Law, but I had more notes on it than I could use in the book, and it struck me that there are aspects of the area which I’d like to revisit.

The first step from ‘bastard’ searching to issues of sex/gender was coming across a case of mistake as to whether a ‘bastard’ child was male or female, in an article in the excellent Welsh Newspaper Archive. It caught my attention because of its Bristol context (I am very aware that, though I have lived here for ages, I have not really made an effort to write about it, so it is always good to find something with a local angle). The case was an attempt by the mother of a child to enforce maintenance payments for the child by the man she claimed was the father (this is all long before DNA tests or even blood tests, so in a world of extreme difficulty in pinpointing paternity). It took place in Bristol, before the local magistrates, in 1869. The Western Mail of 10th June, 1869 notes that there had been an ‘EXTRAORDINARY MISTAKE IN THE SEX OF A CHILD’. The defendant, Daniel Williams was charged with failure to pay sums due under a ‘bastardy order’ (i.e. an order that the man said to be the father of a child should pay towards its maintenance). The mother in the case was the splendidly named ‘Jane Vulture’. On the defendant’s behalf, it was argued that the order in question had specified that he had to pay to support a male child, born on 9th November, 1866, but the child now brought for inspection was female. Ms Vulture may, perhaps not have been able to read, since the story seems to have been that she signed statements about the child which were read out to her – and now claimed that she had never said it was a male, and that that must have been a mistake by the clerk. Sadly for her, this did not sway the court, and the case against Williams was dismissed. Who knows the rights and wrongs of it – was this a different Baby Vulture from the one initially the subject of an order, or did Williams take advantage of a clerical error to weasel out of his responsibilities? The case was not, however, quite what I had thought on seeing the headline. Given current controversies about the validity of biological sex and gender identity, I jumped to the conclusion that this was a case of ‘intersex’ or something similar. Wrong, I think. There is no suggestion of the possibility of doubt here.

And where did that lead me next? Well, I did wonder what contemporary ideas were about this now-contested borderline, so I had a little search for that odd old term ‘hermaphrodite’. That came up a fair bit in my medieval investigations, and I had already had glimpses of its later uses, so it was interesting to probe a bit more in easily-accessible online archives of newspapers from the 19th and early 20th Cs. This turned up two definite but unequally sized strands of material – a few cases of what do look like possible cases of ‘intersex’, but far more metaphorical uses of ‘hermaphrodite’.

On the ‘factual’ side, there are newspaper reports which seem remarkably like medieval/early modern ‘prodigy/monstrous birth’ stories. Note, for example, tales of ‘hermaphrodite’ babies in Llanfynydd in 1851 and  Cardiff in 1906. There are certainly things to consider here, in relation to tone of report, and the apparent response of parents and medics. It is the more metaphorical usage of ‘hermaphrodite’ which particularly interests me, however. This comes up in relation to transgression of gender norms – such as a female cyclist wearing some form of trousers, in a ‘funny’ article from 1896. It is also used in relation to linguistic gender, in relation to bardic expression, in articles from the Welsh-language press, e.g. in 1851. Interestingly, it also crops up in areas with little to do with gender, even in its linguistic form, simply denoting an idea of mixture, or odd/uncomfortable/inappropriate mixture. Thus we have ‘moral hemaphrodisim’, ‘political hermaphroditism’ and even nautical and military hermaphroditism (mixed types of rigging and mixed army-navy organisation respectively). In many ways, there is an overlap with the metaphorical use of ‘bastard’ for mixed concepts, which is coming up in the SLS paper I am writing (‘bastard feudalism’, ‘bastardy’ in relation to the Scots ‘not proven’ verdict, amongst other usages). I am yet to work out when it would have been appropriate to use ‘hermaphrodite’ and when ‘bastard’ – presumably the latter is a little more critical than the former, though both are somewhat critical. More work to do!

 

GS

13/7/2021

Image – a rather gratuitous bunny. Yes I did choose the title to enable me to use it …

Photo by Quinn Secker on Unsplash

 

“Bastard Pauper Lunatics” and Victorian establishment values

Slightly listlessly looking for a bit of inspiration for SLS paper on bastardy etc., I was drawn into references in 19th C numbers of the British Medical Journal. This really is ‘foreign country’ territory – despite not really being so very long ago.

The page I alighted upon was one which promised something with a title making up a  full bingo-row of cold-hearted dismissive Victorian vocabulary: ‘Bastard Pauper Lunatics’. This (it was a letter) was indeed chilling – eugenic theory in full throated cry, despite the ‘civilised’ nature of expression, medium and audience. It was part of what was said to be a debate about what to do with the apparently frightening numbers of young pregnant ‘imbeciles’ turning up at workhouses. Solutions seem to have been at least as much concerned with condemnation and cost as with help and protection.

Just this one page (The British Medical Journal, Vol. 2, No. 1868 (Oct. 17, 1896), p. 1153 ) shows a lot about middle and upper class Victorian attitudes. On the one hand we have thinly veiled loathing for those in poverty or with mental incapacities, and also racism (including two-for-the-price-of one gratuitous racism): on sanitation in Egypt, it is stated as fact that ‘Sanitation in Egypt, as in India, has to contend with an ignorant, apathetic, and obstructive population …’ On the other hand, there is sympathy – rather gushing sympathy – for a recently deceased Archbishop of Canterbury and headmaster of Wellington College (an socially exclusionary  school) and an ailing prominent surgeon.

I can’t help but remember that this comes from the same world as the early Selden Society, and the ‘fathering’ (observe scare quotes – don’t like this usage at all) of English Legal History. It really seems like time to give some serious thought to the ways in which the discipline may have been influenced by its early environment. I know I am not alone in thinking this. Possibly some of that might make its way into the paper.

GS

10.7.2021

Maritime maths: ‘within the four seas’

Ahoy there!

Today’s papers include a report that those who know about these things have decided to designate the waters around Antarctica an ocean (as opposed to just ‘the waters around Antarctica’). I cannot comment on the geographical rights and wrongs of this,[i] and, looking at it in terms of eco-systems and current patterns etc., I have no doubt it makes sense, but it feels a rather odd thing, doesn’t it, splitting up water into separate named areas, as if it they were discrete, borderable, landmasses? This designation of separate oceans or seas has resonances[ii] with one aspect of my recent research into the law of adulterine bastardy.

Until the twentieth century, there was some legal relevance in knowing whether or not somebody was a run-of-the-mill ‘bastard’ or an ‘adulterine bastard’. The latter designation was used for a child  born to a married woman, but not the child of her husband. The law sometimes had to sort out disputes in which a wife/widow alleged that the child was that of her husband, but somebody else (the husband or an alternative heir, perhaps) claimed that the child had been fathered by somebody else. Just how this was to be done changed over time, but, for several centuries, roughly from the fourteenth century to the early eighteenth century, a key question in legal process around this matter was whether or not the husband had been ‘within the four seas’ at the relevant time for conception of the child.[iii] If he had, he was presumed to be the father in most cases. The question which arose for me, when I came across this criterion, was ‘which seas do we mean, then?’. Presumably the Channel and the North Sea are reasonably easy (if we ignore the Isle of Wight, Scillies and Channel Islands), but does the western ‘sea’ bring Ireland into the equation or not, and where on earth is the northern ‘sea’ (have we forgotten that the border with Scotland is a little bit on the landy side?). If we factor in the whole of the area controlled by the king of England, that might include parts of modern France as well, for much of the relevant period.

There is some discussion relevant to the issue in early modern sources. In relation to jurisdiction, Selden interprets ‘Within the Kingdom’ as ‘within the Southern, Eastern and Western Seas’ and, on the vexed question of the ‘northern sea’ writes of  ‘That Northern Sea which washeth both sides of that neck of land whereby Scotland is united to England’. (which may not be the most practical of borderlines). and ‘clarifies’ this as ‘within the outmost bounds of the English Empire in those four Seas, or within the opposite shores of the Eastern and Southern Sea or Ports belonging to other Princes, and within the bounds of the Northern and Western Sea, which indeed are to be bounded after another manner ; but yet to be bounded : that is accordirng to the extent of possession Westward beyond the Western Shores of Ireland, and by the first beginning of that Sea, which is of the Scottish name and jurisdiction’. [iv] He notes a late fourteenth century case in which somebody tried and failed to make the argument that Scotland itself was ‘within the four seas’ – which I must track down.[v] It may, in fact, have received a slight ‘unionist’ twist in the minds of Scots at least, in the nineteenth century – one treatise at least, while stating that it does not have great force in Scots law, implies that the common law test relates to ‘residence of both parents within the islands of Great Britain’.[vi]

By this time, however, English law had moved on from relying so heavily on the ‘within four seas’ formulation. Why? Well I am sure that there are various reasons, including some of the odd results which might be produced if the presumption was given the sort of weight sometimes suggested. I think there might have been another factor too. Coke, perhaps deciding that there were serious practical problems with the whole maritime delimitation issue, decided to interpret the problem away: stating that it just meant ‘within the kingdom of England and the dominion of the same kingdom’.[vii] This represented a  move from geography to political control. It may also have contributed to the decline of the concept. Coke’s work, of course, came at a time when England and Scotland were beginning their period of global attempts at colonisation, and  a criterion and a test which might be interpreted as a presumption of legitimacy even when husband and wife were on different sides of the Atlantic was probably destined to be [wait for the maritime image …] jettisoned.

 

GS

12/6/2021

 

[i] (I stopped geography at 16 and last memory of it is of a fairly major error in the map-work exam, in which none of the blue had been printed on the paper, which made it rather hard to discuss bodies of water, as required …)

[ii] ‘Sounding the depths’ is hinted at here, you see – this is high literature …

[iii] This expression also occurs in some procedural matters, at an earlier time – I have not investigated this yet. See, e.g., 29 SS, 225; 113 SS 138; 18 SS, 234.

[iv] John Selden, Of Dominion (1652)  387.

[v] p. 388.

[vi] James Fergusson, Treatise on the Present State of the Consistorial L in Scotl&: With Reports of Decided Cases (Edinburgh: Bell & Bradfute., 1829), 199.

[vii] Co Litt 107a

Photo by Nathan Dumlao on Unsplash

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.

Not entirely ‘perswasive’?

In between teaching and admin., at the moment, I am working on something touching on decisions relating to the presence of life and legitimacy. Today, I am pursuing bits and pieces on the legitimacy/’bastardy’ side of it, and looking at the splendidly titled Lex Spuriorum by a very early 18th C lawyer.[i] Usually, in this enquiry, I have found my mind occupied by the disturbingly condemnatory attitudes and language, and the writing-off of so many children, people, as ‘bastards’, and somehow not as good as others, despite self-evident lack of personal guilt in the ‘sinful’ nature of their conception. Today, however, I have been ‘going off on one’ in a different direction, after looking at the preface of this book.

 

In this preface, Brydall felt it necessary to justify himself – why was he writing the book? What ‘perswaded’ him (love that spelling!) to publish it? His specific answer to that is interesting (and a little hard not to laugh at): his alleged motives include writing ‘To let the People of this prefent Age fee, what great Difadvantages Children born out of Holy Matrimony do lie under, which might … very much deter Men and Women from ever purfuing unlawful and exorbitant Embraces, of which this Nation, as well as foreign Countries, have been deeply guilty.’ Unlawful and exorbitant Embraces should, obviously, be discouraged, but the idea that people intent on a bit of exorbitant Embracing would stop, read a treatise, find it ‘perswasive’ and think better of their plans, seems … just a little far-fetched.

Postscript – It is a measure of my current preoccupation with all things REF that my mind immediately went to ‘ooh – that’s a bold claim for the potential “impact” of a piece of writing’.

 

GS 22/11/2020

 

[i] John Brydall of Lincoln’s Inn, esq., Lex Spuriorum or the Law Relating to Bastardy (London, 1703).

Bastardy, Presumptions and a Plague of Beatrixes

(Sheldon arms, apparently: see VCH reference, below)

I am writing something about difficult questions at the start of life – determining whether (legally recognised) life is present in a foetus or newborn, and determining legitimacy – from periods before the development of some important medical techniques and instruments (to c. 1900 –  in 10,000 words …). One of the aspects I am investigating is the use of presumptions, to help come to an answer, when everyone accepted that there was a high level of uncertainty. An important presumption in the area of determinations of legitimacy was the common law’s long-lasting and rather strong presumption of legitimacy for a child born to married parents. I have just spent quite some time chasing down a Year Book/Plea roll match for an interesting case from the later years of Edward III, which has a bearing on this, and, since it won’t get more than a short mention, perhaps no more than a footnote, in the paper itself, I thought I’d write it up here.

The Year Book report is Seipp 1370.044 or YB Pasch. 44 Edw. III pl. 21 f. 12b. The Plea Roll record is CP 40/438 m. 370d (AALT IMG 5516). It is a Common Pleas case. As is often the way, the names in YB and PR don’t match up, but I think we can be pretty certain that these documents refer to the same case. There is also  information in other sources which gives some indications about the people involved in the case.[i] This is my reconstruction of the whole story, based on all of this.

There was a need to determine whether or not a girl was to be classed as ‘legitimate’ or ‘a bastard’ at common law, in order to deal with a land dispute. The land in question was in the West Midlands of England, in Warwickshire, centred on the manor of Sheldon, and included different parcels of land and associated rights. Once upon a time, it had been held by Henry de Sheldon and Beatrix his wife (HS and B1) and John Murdak had been granted an interest which would come into play if HS and B1 died without heirs of their bodies.

This had all happened in the 1330s. The central characters in the 1370 dispute were Thomas Murdak, knight (TM), son of John, who claimed that he should hold the land, and  a married couple, (Sir) John de Peyto and Beatrix his wife, who  were in fact holding some of the relevant land and rights. John and Beatrix (JP and B2) argued that they held a tenancy for life in the land, from one Beatrix (B3), eventual successor of HS (as daughter of John de Sheldon, JS, who was HS’s son and heir). When they wished to use B3’s superior right as the foundation of their own right, and against TM’s claim to it, TM made the argument that they could not do so, because B3 was a bastard. (And bastards were outside the scheme of succession at common law).

Why was there a doubt about B3’s legitimacy? Well, it seems that the circumstances of her birth were slightly unusual: she was said by JP and B2 to be the posthumous child of JS, born to his wife after a short marriage (at most fifteen days), though conceived before the marriage. TM told it rather differently: in his version, there had been some very dubious behaviour, which could mean that there was no real marriage, and so no presumption of legitimacy, and also, in fact, B3 was the child of another man entirely. His tale was of a very unwell JS, sick to death with plague, and not in his right mind, being physically carried to the church in Yardley, to marry (desponsare de facto) ‘some woman’ (not named – the odds seem to be in favour of her having been called Beatrix, like everyone else …) who was, at the time ‘grossly pregnant’.  As he told it, this was part of a fraudulent plan, essentially to do him out of his rights, which, remember, would come into play on the death of HS and B1 and their legitimately procreated heirs, and to protect the holding of JP and B2. JP and B2, however, expanded on their version, stating that B3 was in fact the biological child of JS: he and B3’s mother had been lovers (and had had two previous children) and he had promised to marry her, then impregnated her with B3 before going off to Calais for three months, and, on his return, he had fulfilled that promise. Though he had been ill, he had been sane and had married her at the behest of his conscience (presumably wishing to ‘make an honest woman of her’, and secure her future provision). They had lived together for a fortnight, then he had died. B3 had been born afterwards (interestingly, neither a date of birth, nor a gestation period, is included). Essentially, their tale denied both the ‘not JS’s biological child’ and the ‘not a valid marriage’ aspects of TM’s case.

Argument continued, with the aim of narrowing things down to one issue which could go to proof. According to the Year Book report, there followed some back and forth about exactly how pregnancy, espousals and legitimacy worked together, as far as the common law was concerned. TM’s side had a go at saying that the fact that it was accepted that B3’s mother was very pregnant before the espousals meant that Alice was a bastard. This seems to imply an argument that pregnancy had to start, as well as end, after espousals had been made.  This argument did not prevail, but it is interesting that it could be made, since it suggests the possibility of insisting on very exacting standards of continence and of ‘bastardising’ quite a number of children born within a marriage. The orthodox, less exacting, rule was stated by Fyncheden JCP: a child would be found to be legitimate, if the mother was pregnant by the man she then married, and she married him before the birth. Interestingly for my investigation, though, his reported words also suggest that a child conceived in the period between promise to marry and actual marriage (I have been doing too much Land Law because I automatically think of this as ‘conception between contract and conveyance’) does not automatically get the benefit of the strong presumption of legitimacy which would have applied to a child conceived after marriage.

In the end, rather than deciding B3 was definitely a bastard, (either because she was admittedly conceived before marriage, or because the marriage was invalid), or deciding that the conclusion would rest upon her presumed legitimacy as a result of having been born after the espousals, it was decided that the issue to be put to a jury was to be (effectively) whether the biological father of Alice was HS or the ‘other man’. This strikes me as a rather difficult thing for a jury to conclude upon, and it is interesting that it was thought feasible that they could do so. Also of interest is the point that the fact of there having been espousals did not blot out the possibility of B3 being found to be a bastard. My inquiries into later versions of the presumption of legitimacy within marriage show some interesting ups and downs in terms of its strength, and what sort of doubts might be entertained about paternity after the mother’s marriage, but it seems that, at least at this point, challenging legitimacy in these circumstances was a real possibility: if the ‘unloaded’, neutral, question ‘was X or Y the biological father of Z’ could be left to a jury, there would seem to be a fairly even chance of a finding of bastardy or of legitimacy. I am also pondering the issue of there having been a particular fascination amongst common lawyers at this point for the question of bastardy/legitimacy within marriage – another project I have done looked at a case from just before this one, Tyryngton v Beauchamp (1369),[ii]  the report of which saw common lawyers introducing a gratuitous discussion of just this issue (that case did not concern a child whose legitimacy was in dispute, but the report shows lawyers ‘going off on one’ about this).

The reporter loses interest once the issue is identified, as is usual, but the record tells us (some of) what happened in the end. The record includes later stages of procedure, which went on for some terms, and, to cut a long story short, TM dropped out, and so the case came to an end, leaving JP and B2 in possession of the land. There never was a jury verdict. It may be that some deal was struck, or it may be that TM decided that a jury would not have believed that B3 was the biological child of the mysterious ‘other man’.

So there we have it – for my immediate purposes, it represents an interesting stage in the development of doctrine around determinations and presumptions of legitimacy. More broadly, it is fascinating both legally and socially. The legal structure is set up so that it is in order – and perhaps it is an early resort – for claimants to land to cast aspersions about the sexual behaviour of non-party individuals. We see insights into a plausible story of a long term non-marital relationship which might be regularised on the point of death, and also a deep-seated suspicion of deathbed marital dealings (generally of the ‘woman as gold-digger’ variety: given the unequal system of real property, such marriages would tend to be for the benefit of women rather than men). If the background to this case was indeed a recurrence of plague, it is also interesting to ponder the effects of such crises of mortality on law and practice with regard to marriage, legitimacy and succession.

[And then of course there is the oblique evidence provided for the otherwise unknown ‘Statute of Beatrixes’ (or should it be ‘Beatrices’?), under which all female children in the West Midlands were required to be called Beatrix.]

GS

23/10/2020

(For more on bastardy in common law and canon law, and jurisdictional issues, in medieval England, including a 1364 case which might also support the idea of particular attention on this issue in this era, see, e.g. R. H. Helmholz, ‘Bastardy Litigation in Medieval England’, American Journal of Legal History 13, (1969): 360-83).

[i] VCH Warkwickshire (not going to pretend I can get to libraries at the moment): https://www.british-history.ac.uk/vch/warks/vol4/pp200-205

[ii] William de Tyryngton and Johanna his wife v. John Beauchamp del Holte and Joan his wife (1369).CP 40/435 m.387, 387d (IMG 773 and 1857(; Seipp 1369.059; YB 43 Edw. III Trin. pl. 5.