Tag Archives: bastardy

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 Lorde 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

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.