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"Insolent and contemptuous carriages"


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"Insolent and contemptuous carriages" re-conceptualizing illegitimacy in colonial British America
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Watkins, John ( John David )
University of South Florida
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ABSTRACT: This Master's thesis investigates one particular aspect of sexuality in colonial Anglo America--the products of non-marital intercourse. Earlier historical research emphasized the importance of economic considerations in the creation of bastardy laws and the prosecution and punishment for violators of these statutes. Undoubtedly, financial anxieties were a major concern in out-of-wedlock births, but they were only one concern of many. Class, race, and gender dynamics were prominent in colonists' conceptualization of illegitimacy and largely defined who was at risk for having an "insolent and contemptuous carriage" and the resulting punishment for the debauched act. Elite, white officials made women, servants, and Africans increasingly vulnerable to bastardy prosecution, thereby, marginalizing a large segment of the colonial populace. Gendered relations, class biases, and racial inequities structured colonial society, and, therefore, merit consideration in a study of illegitimacy. This research aims to culturally describe and analyze bastardy within the context of the Chesapeake and New England regions. There is more to the study of colonial illegitimacy than economic concerns. Thus, applying cultural factors to a study on colonial bastardy further explores one of the many concerns that influenced colonists' understanding of illegitimacy.
Thesis (M.A.)--University of South Florida, 2003.
Includes bibliographical references.
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"Insolent and contemptuous carriages"
h [electronic resource] :
re-conceptualizing illegitimacy in colonial British America /
by John Watkins.
[Tampa, Fla.] :
University of South Florida,
Thesis (M.A.)--University of South Florida, 2003.
Includes bibliographical references.
Text (Electronic thesis) in PDF format.
System requirements: World Wide Web browser and PDF reader.
Mode of access: World Wide Web.
Title from PDF of title page.
Document formatted into pages; contains 83 pages.
ABSTRACT: This Master's thesis investigates one particular aspect of sexuality in colonial Anglo America--the products of non-marital intercourse. Earlier historical research emphasized the importance of economic considerations in the creation of bastardy laws and the prosecution and punishment for violators of these statutes. Undoubtedly, financial anxieties were a major concern in out-of-wedlock births, but they were only one concern of many. Class, race, and gender dynamics were prominent in colonists' conceptualization of illegitimacy and largely defined who was at risk for having an "insolent and contemptuous carriage" and the resulting punishment for the debauched act. Elite, white officials made women, servants, and Africans increasingly vulnerable to bastardy prosecution, thereby, marginalizing a large segment of the colonial populace. Gendered relations, class biases, and racial inequities structured colonial society, and, therefore, merit consideration in a study of illegitimacy. This research aims to culturally describe and analyze bastardy within the context of the Chesapeake and New England regions. There is more to the study of colonial illegitimacy than economic concerns. Thus, applying cultural factors to a study on colonial bastardy further explores one of the many concerns that influenced colonists' understanding of illegitimacy.
Adviser: D., Philip Levy Ph.
Dissertations, Academic
x History
t USF Electronic Theses and Dissertations.
4 856


“INSOLENT AND CONTEMPTUOUS CA RRIAGES”: RE-CONCEPTUALIZING ILLEGITIMACY IN COLONIAL BRITISH AMERICA by JOHN WATKINS A thesis submitted in partial fulfillment of the requirements for the degree of Master of Arts Department of History College of Arts and Sciences University of South Florida Major Professor: Philip Levy, Ph.D. John Belohlavek, Ph.D. Gary Mormino, Ph.D. Date of Approval: November 21, 2003 Keywords: bastardy, fornicat ion, race, class, gender Copyright 2003 John Watkins


i Table of Contents Abstract ii Chapter One Introduction 1 Chapter Two Sex, Marriage, and Illegitimacy in the British Colonies 12 Chapter Three “A World of Wanton Wenches and Potent Patriarchs: 25 Gender Inequities in Bastardy Cases” Chapter Four ‘“The Hazard of Bearing a Bastard was a Hazard of Being a 41 Servant’: Class Dimensions in Colonists’ Understanding of Illegitimacy” Chapter Five ‘“Spurious Issue’ and ‘Abominable Mixtures’: Racial 57 Inequities in the Conceptualiz ation of Colonial Bastardy” Chapter Six Conclusion 70 Bibliography 73


ii “Insolent and Contemptuous Ca rriages”: Re-conceptualizing Illegitimacy in Colonial British America John Watkins ABSTRACT This Master’s thesis investigates one part icular aspect of se xuality in colonial Anglo America—the products of non-marital in tercourse. Earlier historical research emphasized the importance of economic consider ations in the creati on of bastardy laws and the prosecution and punishment for viol ators of these statutes. Undoubtedly, financial anxieties were a major concern in ou t-of-wedlock births, but they were only one concern of many. Class, race, and gender dynamics were prominent in colonists’ conceptualization of illegitimacy and largely defined who was at risk for having an “insolent and contemptuous carriage” and the resulting punishment for the debauched act. Elite, white officials made women, servants and Africans increasingly vulnerable to bastardy prosecution, thereby, marginalizing a large segment of the colonial populace. Gendered relations, class biases, and racial inequities structured colonial society, and, therefore, merit consider ation in a study of illegitimacy. This research aims to culturally describe and analyze bastardy with in the context of the Chesapeake and New England regions. There is more to the st udy of colonial illegitimacy than economic concerns. Thus, applying cultural factors to a study on colonial bastardy further explores one of the many concerns that influenced colonists’ understanding of illegitimacy.


1 Chapter One Introduction During a routine December day in 1656 at Maryland’s Kent Island County Court House, two court members became ensnared in a heated war of words. Thomas Ringgold and Joseph Wickes shouted insults at one anot her in front of a courtroom audience. A verdict finding Wickes guilty of impregnating Mary Hartwell, a Virginia widow, with an illegitimate child init iated the barrage of words between him and Ringgold. According to one witness, Ringgold lambasted Wickes, decl aring “it was not fiting Any whore Master should sett at Table There [preside as a member of the court].” In response to this assault against his masculinity, Wickes proclaimed “ it was better [to] be a whore Master Then A Thiefe as he [Ringgold] was.”1 As evidenced by the uproar over Wickes ’ depraved act, bastardy was a base condition that elicited opprobrium and dis honor. Siring an illegitimate child was a criminal act in British America that imperile d an individual’s reput ation. Joseph Wickes, a respectable court magistrate, faced re buke and a potential loss of status for The title originates in part from the following passage in the Records of the Court of Assistants of the Colony of the Massachusetts Bay, 1630-1692 Vol. 2 (Boston: The County of Suffolk, 1904), 93: “George Hurne is Comited to bee layd in irons and to be whipped tomorrow for his insolent and contemptuous carriage.” The words “insolent carriage” and “cont emptuous carriage” are used synonymously with illegitimate births in this study. 1 Mary Beth Norton, “Gender and Defamation in Seventeenth-Century Maryland,” in the William and Mary Quarterly 3rd Series, 44:1 (1987), 15-16. Norton relies on William Hand Browne, ed., Archives of Maryland: Proceedings and Acts of the General Assembly of Maryland (Baltimore: Maryland Historical Society, 1883-1912), Vol. LIV, 85-86; Vol. X 493. See also Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and th e Forming of American Society (New York: Alfred A. Knopf, 1996), 337. Norton explained that Mr. Wickes hastily married Ma ry Hartwell, thereby allowing him to avoid serious consequences barring a temporary suspension from his position in the court.


2 impregnating a woman outside the confines of marriage. Before considering why bastardy precipitated an outpouri ng of disdain and shame, it is first necessary to define the term. Defining illegitimacy is tenuous because its meaning changes according to customs, culture, location, time, and numerous ot her variables. With this disclaimer in mind, this study describes an illegitimate child as progeny whose conception and birth transgressed the institutional rules that governed society, including the norms of reproduction. Simply put, bastardy refers to offspring whose parents were not married at the time of their carnal engagement.2 These progeny were illegitimate because their birth violated the law and/or establ ished custom. Colonial author ities lumped bastards with a “motley crowd” of whores, thieves, begga rs, and other reprehensible people who composed a throng of miscreants.3 Clearly, bastardy fostered outrage among colonists, yet the reasons behind the contempt and anger were less apparent. This Master’s thesis contends that cultural factors, such as class, race, and gender, influenced British colonists’ understanding of bastardy and shaped lawmakers’ efforts to combat and discipline the tr ansgression. Courts effec tively used the language of economics to veil social inequitie s in the construction of illegitimacy. This is not to deny the importance of economic motivations, whic h served a prominent role. Yet social dynamics also figured prominently into whom courts targeted for conceiving a child out 2 Jenny Teichman, Illegitimacy: An Examination of Bastardy (New York: Cornell University Press, 1982), 80. Southern colonies were more lenient about the exact time that sex occurred, as long as the parents were married prior to the child’s birth. Conversely, Puritans considered offspring who were conceived before their parents’ marriage illegitimate, even if the parents wedded before the birth of the child. 3 Peter Laslett, Karla Oosterveen and Richard M. Smith, editors, Bastardy and Its Contemporary History : Studies in the history of illegitimacy and marital nonconformism in Britain, France, Germany, Sweden, North America, Jamaica and Japan (Cambridge: Harvard University Press, 1980), 71. In Chapter Two, Alan Macfarlane quoted Kingsley Davis’s “Ille gitimacy and the social structure” (page 21).


3 of wedlock and the punishment the couple received.4 Lawmakers throughout colonial America crafted discriminatory bastardy laws to buttress their ow n authority, as they subjected others to a more rigorous enfor cement of these rulings. As a result of both financial and social issues, elites ensured that women, subservient classes, and non-white colonists would suffer the most from bastardy laws because of their diminished economic means and lack of recourse to challenge white, male hegemony.5 The words “legitimate” and “illegitimat e” differentiate between births that conformed to societal values and distinguish those children whose ar rival into the world marked an infringement of the law and a direct challenge to institutional authority. Bastardy is culturally construc ted, meaning that it is co ntingent upon the historical period, ruling institutions, and social forces. Therefore, non-marital births represented something different to each community. 6 Since this study more broadly focuses on the British colonies in general (primarily dea ling with Virginia, Maryland, South Carolina, 4 Else K. Hambleton, “‘The World Fill’d with a Ge neration of Bastards’: Pregnant Brides and Unwed Mothers in Seventeenth-Century Massachusetts” (Ph. D. diss., University of Massachusetts Amherst, 2001), 118-20. Hambleton claimed that she “would agree that economic factors played a major role in determining rates, but cultural factors are also important.” 5 A few notes on terminology. Puritan region and New England are used interchangeably in this study. This does not mean that every inhabitant of New England was a Puritan. Though not everyone living in New England was a Puritan, all inhabitants, regardle ss of religious beliefs, had to obey the region’s governing officials who were Puritans. Puritans shaped and ruled New England society, regardless of the fact that many of its residents were not “saints.” Furthermore, the expressions Anglo, European, English, and white all refer to someone with white skin color and of Anglo-Saxon descent. Moreover, the terms servant, indentured laborers, bonded laborers, and house maids all imply that an individual was of the subservient class. The word “slav e” is used sparingly because the ins titution of slavery did not technically develop until the end of the seventeenth century. Since this paper deals with the mid to late seventeenth century, the line between slave and servant crosses severa l times. Before slavery became codified (1690s), it was common for both whites and blacks to serve as in dentured laborers. For more information on race and class, see Kirsten Fisc her’s recently published book, Suspect Relations. 6 Richard Adair, Courtship, Illegitimacy and Marriage in Early Modern England (New York: Manchester University Press, 1996), 4; Ann Twinam, Public Lives, Private Secrets: Gender, Honor, Sexuality, and Illegitimacy in Colonial Spanish America (Stanford: Stanford University Press, 1999), 128. For instance, officials in colonial Spanish Ameri ca provided for the legitimization of bastard children if their parents eventually married, yet no such system existed in the British colonies. A system similar to that of the Spanish colonies existed in Scotland as well. See Rosalind Mitchson and Leah Leneman, Sexuality and Social Control: Scotland 1660-1780 (New York: Basil Blackwell, 1989), 79.


4 North Carolina, Connecticut, and Massachusetts), which means that there is not a single conceptualization of illegitimacy that applie s equally to all colonists. There were, however, certain beliefs about bastardy that we re endemic to all col onies. Rather than compare and contrast the New England and Ch esapeake regions, this research highlights similarities and differences be tween colonies themselves with minimal regard to regional geography. Before the infusion of social dynamics in to bastardy laws, governing officials and colonists alike viewed fornication and illeg itimate children as sinful and immoral transgressions that endangered the most important soci al unit in British America—the family. Court officials passed laws aime d at preserving families, punishing sin, and encouraging morality through public example.7 Economic considerations, however, gradually supplanted ethical be havior in the regulation of bastardy, emerging earlier in the Chesapeake than in New England. Fo r instance, Virginia lawmakers relegated matters of morality to the churches, while th ey focused upon issues of politics, law, and economics. Bastardy cases remained the only ty pe of fornication that Virginia courts continued to prosecute, primarily due to their financial impact. Between 1694 and 1770, there were only seven presentations for non-marital sexual intercourse in Richmond County (Virginia) courts, while numerous single women appear ed before judges on bastardy charges.8 Historians use this information and other similar data to delineate 7 Christine Daniels and Mi chael V. Kennedy, ed., Over the Threshold: Intimate Violence in Early America (New York: Routledge, 1999), 176. S ee also Laslett, Oosterveen, and Smith, Bastardy and its Comparative History 355. See Kirsten Fischer, Suspect Relations: Sex, Race, and Resistance in Colonial North Carolina (Ithaca: Cornell University Press, 2002), 113. 8 Peter Charles Hoffer and William B. Scott, eds., Criminal Proceedings in Colonial Virginia: Richmond County, 1710-1754 in American Legal Records series, vol. 10 (Athens: The University of Georgia Press, 1984), X. See also Lee Gladwin, “Tobacco and Sex: Some Factors Affecting Non-Marital Sexual Behavior in Colonial Virginia,” Journal of Social History 12, no. 1 (1978), 69. By the end of the seventeenth century, few lawmakers felt compelled to stamp out non -marital sex. If the intimate act bore fruit,


5 between illicit sex and illegitimate offspring as evidence of the change from a moral to an economic paradigm in bastardy cases. Scholars generally have considered moneta ry concerns as the major stimulus for lawmakers’ development and enforcement of bastardy laws. In 1938, Julia Cherry Spruill argued that court justices were more concerned with finding someone to defray the pecuniary costs associated with bastard ch ildren than the “preservation of morality for its own sake.” Spruill belie ved that judges were more in tent on ensuring the financial security of bastard offspring than punishi ng the parents for forn icating. Spruill’s contention that financial motives drove ba stardy prosecutions was corroborated by other historians throughout the remainde r of the twentieth century. Nearly forty years after Spruill’s wate rshed work, G. R. Quaife claimed: “Economics, not morality, was the prime consider ation of the parish.” Quaife’s analysis of the correlation between fi nancial motives and bastardy prosecutions focused in England, though it was representative of coloni al America as well. Lawrence Stone, also an English historian, contended that the prim e reason for authorities’ harsh treatment of illegitimacy was due to its financial “dra in” on the parish. John Demos described a comparable situation in the Plymouth colony. Demos explained that officials took steps to limit illegitimacy because of bastard ch ildren’s economic strain on the community, while he downplayed the role of morality and other social factors in the decision to crackdown on non-marital births. For exam ple, Plymouth authorities attempted to uncover the child’s paternity, be cause if the father remained anonymous and the mother was destitute, the parish had to defray th e expense of illegitimate offspring. Quaife, however, authorities were likely to punish the woman. This explains why many single women appeared before the court on charges of bastardy, but relatively few faced prosecution for illicit sex.


6 Stone, and Demos performed their research in the mid to late 1970s, a time of dynamic change in the writing and theo rizing of history. Interestingl y, the views of Quaife, Stone, and Demos on bastardy remained consistent with earlier scholarship, as they contemplated economics concerns while excluding social factors. Despite the proliferation of social an d cultural history in the 1980s and 1990s, historians continued to deal with illegitimacy in a fashion similar to the pioneers of the study more than a half century ago. In a 1980 cross-cultural analysis of bastardy, Robert Wells explained that the motive behind punishin g illicit carriages wa s to limit the number of offspring chargeable to the parish. Wells continued that the ec onomic implications of bastardy were of the utmost significance. Ma rk Jackson also substantiated bastardy’s monetary strain on the parish. He claimed that the fiscal stress on the community was more important to legislators than the belief that bastardy wa s to “the great Dishonour of Almighty God.” Holding views similar to Stone and Jackson, Helena Wall emphasized financial considerations above al l others. According to Wall, Virginia officials’ foremost goal was to prevent illegitimate offspring fr om ruining the financial solvency of the parish.9 Though most historians in the 1980s and 1990s dealt with bastardy in a matter similar to their predecessors, there were some paradigm changes in the works. In 1982, 9 Julia Cherry Spruill, Women’s Life and Work in the Southern Colonies (New York: W. W. Norton & Company, 1972), 176-77, 315; G. R. Quaife Wanton Wenches and Wayward Wives: Peasants and Illicit Sex in Early Seventeenth Century England (New Brunswick: Rutgers Univ ersity Press, 1979), 245; Lawrence Stone, The Family, Sex and Marriage in England, 1500-1800 (New York: Harper & Row, 1977), 324-25; Laslett, Oosterveen, and Smith, ed, Bastardy and Its Contemporary History, 355-56; Mark Jackson’s New-Born Child Murder: Women, Illegitimacy, and the Courts in Eighteenth-Century England (Manchester: Manchester University Press, 1996), 30, 130; Helena M. Wall, Fierce Communion: Family and Communion in Early America (Cambridge: Harvard University Press, 1990), 65; John Demos, A Little Commonwealth: Family Life in Plymouth Colony (New York: Oxford University Press, 1970), 152-53. See also John Ruston Pagan, Anne Orthowood’s Bastard: Sex and Law in Early Virginia (New York: Oxford University Press, 2003), 128; Fischer, Suspect Relations 102; Gladwin, “Tobacco and Sex,” 69. There are many more books that could be referenced, yet because they reach similar conclusions, the above historiography will suffice.


7 Jenny Teichman completed an influential study of illegitimacy. She explored bastardy in a theoretical framework, defining the criter ia for who is a bastard and explaining authorities’ motives for differentiating betw een “legitimate” and “illegitimate.” Teichman argued that the regulation of sex was a form of social control.10 Colonial authorities’ active regulation of childbirth rewarded those who conformed to social institutions’ idea of the proper channels for marriage and reproduction. Colonial officials’ policing of children’s birth status figured prominen tly into a hierarchal social structure. Moreover, in a recent study of co lonial North Carolina, Kirsten Fischer used sexual relations as an arena to discuss race. Fischer challenged the work of prior historians who studied the relationship between sex and cultural factor s. Despite offering a fresh look at colonial sexuali ty, Fischer stressed the impor tance of monetary concerns in bastardy trials, thereby continuing the l ong historiographical trad ition started by Julia Spruill.11 Scholars have pointed to the financial so lvency of parishes as the impetus for prosecuting bastardy. Undeniabl y, economic considerations were significant. Historians’ treatment of bastardy, however, suffers from their disregard of cultural factors, which profoundly shaped colonists’ understanding of insolent carriages. This study will focus less on financial considerations and, instea d, rely upon social fact ors to account for colonists’ conceptualization of bastardy. Identifying financial motives as a monocausal explanation of bastardy ignores the complexity of the topic. Peter Laslett contended that bastardy resulted from “an interplay of factor s” rather than a single cause. To more completely address illegitimacy, Richard Adair stressed the need for casting a wider net 10 A similar claim will be made about the intrusiveness of bastardy laws in this thesis. 11 Teichman, Illegitimacy 1-10; Fischer, Suspect Relations 1-11.


8 when discussing it. There exists no theory persuasive enough to explain bastardy that does not incorporate the “kaleidoscopic and multifaceted” nature of the subject.12 Cultural dynamics, such as race, class, and ge nder, are noteworthy forces that impact and shape the past, thereby, meriting further scholar ly inquiry. These social factors deserve due consideration within the context of illegi timacy in colonial British America. While bastardy is a useful tool of hist orical analysis, the study of illegitimacy must be conducted with caution. Colonial records are episodic a nd partial, providing scholars with fragmentary evidence.13 Historians must make sense out of these incomplete accounts to construct meaning. To no scholar’s surprise historical sources are often flawed. Further complicating the study of bastardy is its clandestine and controversial nature, which makes the historical record even more difficult to navigate. Court records contain numerous inconsistencie s, but none more glar ing than the problem of confusing bastardy with other forms of sexual misbehavior (nonmarital intercourse, slander cases, common law marriages, adulterous relations, illicit se xuality, etc.). Court proceedings often identify all forms of unlaw ful copulation simply as fornication. For example, in Robert Wells’s study of illegitim acy in colonial America, there was a county record consisting of eleven cases of se xual misconduct and only one of these cases directly involved bastardy. The numerous obstacles to the study of bastardy is a 12 Peter Laslett, Family Life and Illicit Love in Earlier Gene rations: Essays in Historical Sociology (Cambridge: Cambridge University Press, 1977), 108; Adair, Courtship, Illegitimacy and Marriage in Early Modern England 227. 13 Lawrence Stone Uncertain Unions Marriage in England, 1660-1753 (New York: Oxford University Press, 1992), 7. Stone writes: “The actors in this dr ama [the past] emerge from the shadows; strut a while upon the stage; expose in intimate detail a story which may cover only a few years or decades of their lives up to that moment; and then once the trial is over, abruptly vanish into the darkness of unrecorded history.”


9 motivating force to further investigate the topic, for the subject is worthy of historical analysis.14 Another problem facing scholars dealing w ith non-marital births is that many bastard children were never formally labeled illegitimate. Most bastards were never baptized, which meant that their illicit status remained obscured. Moreover, there stood a very real chance that illegitimate progeny would not survive childbirth. The risks for miscarriage and stillbirth were elevated. Even a successful delivery did not end the precarious situation for newborns, who continue d to face the prospect s of death in their first years of life.15 Incidences of mothers who dispos ed of their socially-tabooed child by either infanticide or abortion also sk ew the records of illegitimate births.16 Without knowing how many women employed these tec hniques, historians cannot accurately quantify the number of illegitimate children. The secrecy and deception associated with illegitimacy make statistical figures te nuous and uncertain, thus minimizing their presence in this study. Instead, primary accoun ts and a theoretical framework are relied upon to explore and explain why social factors influenced what constituted a bastard and the punishment meted out to forbeare rs of illegitimate children. 14 Laslett, Oosterveen, and Smith, Bastardy and Its Contemporary History 352. 15 Quaife, Wanton Wenches and Wayward Wives 203. 16 For the most complete accounts on in fanticide and abortion, see Jackson, New-Born Child Murder, all pages; Cornelia Hughes Dayton, “Taking the Trade: Abortion and Gender Relations in an EighteenthCentury New England Village” William and Mary Quarterly 3rd Series, 48:1 (1991): 19-49; and Peter C. Hoffer and N. E. H. Hull, Murdering Mothers: Infanticide in England and New England, 1558-1803 (New York: New York University Press, 1981). Fo r additional information see Kirsten Fischer, Suspect Relations 105; Irmina Wawrzyczek, “The Women of Ac comack Versus Henry Smith: Gender, Legal Recourse, and the Social Order in Seventeenth-Century Virginia,” in Virginia Magazine of History and Biography 105:1 (1997), 10, 13-14; James Horn, Adapting to a New World: English Society in the Seventeenth-Century Chesapeake (Chapel Hill: The University of North Carolina Press, 1994), 358; Stone, The Family, Sex and Marriage 401; Antonia Fraser, The Weaker Vessel (New York: Alfred A. Knopf, 1984), 66-67; Spruill, Women’s Life and Labor 323, 325-26; and John D’Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (New York: Harper & Row Publishers, 1988), 34.


10 Before launching into a discussion of cu ltural issues and bastardy, the following chapter takes a more general look at sex, marriage, and illegitimacy in the British colonies. Chapter Two provides background in formation on colonists’ understanding of copulation and beliefs about carnal involvement Moreover, an examination of marriage in the colonial context complements colonists’ views of intimacy. Marriage is inherently linked to illegitimacy because the delineation between “legitimate” and “illegitimate” rests on the parents’ marital status. This chapter concludes with a look at bastardy in British America, focusing on issues such as frequency, punishment of the transgression, and differences between the colonies. The correlation between gender, class, and race and bastardy cases will be dealt with respectively in Chapters Three, Four, and Five. The decision to separate gender, class, and race into their ow n chapters was strictly for organizational purposes. These social factors overlap and are related and, ther efore, should not be thought of as isolated dynamics.17 The chapter on gender considers wo men’s increased vulnerability to bastardy charges, while it e xplores men’s ability to evade punitive measures. Primary source material reveals that women were puni shed more frequently and severely than their male counterparts for committing the same transgression. Discrimination based on social status also occurred with in bastardy cases. Chapter Fo ur investigates the role of class-based issues in courts’ handling and punishment of illegitimacy. Juxtaposing the increased probability of servants suffering pun itive measures for bearing illegitimate fruit with privileged men’s ability to contravene the bounds of prope r sex with minimal fear of punishment illustrates social rank biases. Al ong with gender and cla ss inequities, many 17 Kathleen M. Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill: The University of North Carolina Press, 1996), 4.


11 colonists endured the injustices of racial prej udices. Chapter Five examines the role of skin color on judges’ response to and penaltie s for bearing a child out side of marriage. Men of reputation and wealth crossed the racial divide in pursuit of female partners without fear of rebuke or punishment. C onversely, white women who fornicated with non-whites faced severe and swift penalties. For instance, Virginia officials banished white women who were intimately involved with an African from the British mainland colonies. Similarly, men of color who particip ated in an interracial relationship endured stiff and often brutal punishments for their act ions. Courts, however, seldom castigated non-white women for miscegenation. Ch apter Five explores the dynamics of miscegenation in the colonial era and applie s racial inequities to the study of bastard y.


12 Chapter Two Sex, Marriage, and Illegitimacy in the British Colonies Sexual intimacy was a central part of colonial life. Individuals frequently familiarized themselves with the illicit pleasur es of the opposite sex. These sexual rendezvous occurred in localitie s that dotted the colonial land scape, including places such as crowded, single-room dwellings, barnyards, and slave quarters. These cramped and unpleasant venues did not deter couples from co pulating. Children grew up hearing cries of ecstasy emanating from their parents’ se xual intercourse in the nighttime hours. The half-muffled erotic sounds filling the air and cramped living quarters guaranteed that most children possessed first-ha nd knowledge of procreation. Michel Foucault described the seventeenth and eighteenth centuries as a time when “bodies made a display of themselves.”18 To limit carnal excesses, religious offici als narrowly defined appropriate sexual relations. Acceptable copulation occurred onl y if a number of conditions were met. Every detail was of concern to governing offici als, including the timi ng of coitus. Sexual relations were not supposed to occur on certain days of religi ous significance or to take place during particular physiological c onditions (i.e. menstruation, pregnancy, or following a recent childbirth). Regulation of sexual positions was another point of interest (or control) to clergy. Missionary style was the only sanc tioned way for couples 18 Laurel Thatcher Ulrich, Good Wives: Image and Reality in the Lives of Women in Northern New England, 1650-1750 (New York: Vintage Books, 1991), 95. Michel Foucault, The History of Sexuality Volume 1: An Introduction, translated by Robert Hurley (New York: Vintage Books, 1990), 3.


13 to have intercourse. Authorities’ foremost concern with intimate behavior was that it occurred solely between married partners.19 Officials in both New Engl and and the Chesapeake mandated that copulation happens only within the confin es of marriage. In terms of controlling sexuality, the regions resembled each other more than th ey differed. There were a few factors, however, that specifically affected sexual patt erns in the Chesapeake. Most importantly, the Southern colonies experi enced a gender imbalance, with nearly four men for every one woman. With a shortage of suitable marriage partners, men had a difficult time finding women to satisfy their sexual desi res. Conversely, women found the gender disparity empowering. An overabundance of men afforded Chesapeake women with greater marriage opportunities than their Puritan counterpa rts. Another demographic factor that affected sexual relations was the deluge of indentured servants arriving on the eastern shores. Lawmakers did not allow bonded men and women to marry (unless they had their master’s permission), which furt her reduced the pool of eligible marriage partners. Additionally, colonists were widely dispersed across the colonial landscape. The distance separating indivi duals made it more difficult for Chesapeake residents to find sexual partners. Many colonists chose to engage in illicit affairs because marriage options were limited and the prospects of gett ing caught were low (the sparsely populated community was not conducive to effective supervision). As long as these relationships were kept quiet and did not threaten the so cial hierarchy, lawmakers generally ignored these unlawful acts. Though initially opposed to non-marital intimate relations, New England officials also grew less concerned w ith the debauched relati ons after the 1660s. By the end of the seventeenth century, th e regions’ response to illegitimacy grew 19 Quaife Wanton Wenches and Wayward Wives 38.


14 increasingly similar, though differences c ontinued to exist betw een and within the Chesapeake and New England.20 Defining sexuality in British America is inherently complicated and nuanced, as colonists’ views on intimacy existed within a broad continuum of ideas and attitudes. At one end of the spectrum were the “evangelical s” who emphasized sexual repression. For instance, a dogmatic minister condemned copul ation as a “base and contemptible thing” that beasts would “naturally abhorre” if there were not physical pleasure in it. A “genteel” model of sexuality represented the opposite end of the spectrum. This paradigm provided for the open expressions of desire and mirrored European libertinism, as personified by the self-indulgent rakes. In between these two extremes were moderate Protestants that confirmed the importance of intercourse, but advocated moderation within carnal affairs.21 Court records reveal that col onists, including Puritans, possessed a familiarity with the sins of the flesh, s uggesting that they were neither prudish nor sexually ascetic. Colonists accepted that phys ical intimacy was an essential aspect of life, yet they approached sexual rela tions with ambivalence and anxiety.22 Pleasures of the flesh were necessary fo r procreation, and, therefore, responsible for populating the colonial landscape. The “u se of the Marriage Bed” was “founded in mans Nature” and it served as the only appropriate avenue for sexual gratification. Colonial officials understood the necessity of intercourse and exp ected nuptials to 20 D’Emilio and Freedman, Intimate Matters 9-14. 21 Philip J. Greven, Jr., The Protestant Temperament: Patterns of Child-Rearing, Religious Experience, and the Self in Early America (New York: Alfred Knopf, 1977), 248, 314, 316; See also D’Emilio and Freedman, Intimate Matters 19. 22 Francis J. Bremer, The Puritan Experiment: New England Society from Bradford to Edwards (New York: St. Martin's Press, 1976), 114. See also Edmund Leites, The Puritan Conscience and Modern Sexuality (New Haven: Yale University Press, 1986).


15 properly channel it.23 Ministers hoped that wedded couples experienced sexual fulfillment because colonists believed that bo th partners had to orgasm to conceive a child. Moreover, unsatisfied marriage part ners had a greater proclivity to commit adultery. Puritans and other colonists alike beli eved that if lustful cr avings were pent up, in time they would explode with detrimental c onsequence. When faced with an epidemic of sexual misconduct, Plymouth Governor Willia m Bradford explained that when society suppresses matters of the flesh there remains an underlying desire to engage in illicit behavior. He compared restrained sexua lity to dammed up water—once it “get[s] passage they flow with more violence, and make more noys and disturbance, then when they are suffered to rune quiet ly in their owne channels.”24 Colonists believed that intercourse serv ed a higher good, for it glorified God. Each experience, including coitus, was of, by, and for God. For Puritans, the central objective of life was to exalt the Almighty and earthly pleasures had to complement this goal, not hinder it. One Protestant minister warned married couples not to become “so transported with affection” that they consid er “no higher end than marriage itself.” While excesses between wedded couples concerned relig ious officials, sensual transgressions outside of marriage disappointed and infuriated spiritual leader s. Non-marital intercourse was an egregious sin against G od, a blatant violation of the la w, and a direct challenge to the authority of governing and religious offici als. Clergy condemned fornication because it threatened familial stability—the bedrock of colonial life. The family provided the 23 Edward Taylor, Commonplace-book, 1638-1725 (Massachusetts Historical Society, Archival Material). As quoted in Edmund S. Morgan, “The Puritans and Sex,” in The New England Quarterly 15:4 (1942), 592-92. 24 William Bradford, History of Plymouth Plantation, 1620-1647 Vol. 2 (New York: Russell & Russell, 1912), 309.


16 means to transfer property, instill values, and maintain order. Governing officials agreed that sexual intercourse outside of marriage must be prohibited.25 Community, church, and courts alike made a concerted e ffort to restrict sex to only married couples, thus limiting illegitimate carriages. Marriage was the quintessential element of colonial society, for it was the only natural state for man and woman. Nuptials were intricat ely defined and involved set proc edures. A minister had to perform the service; otherwis e the union was unofficial and unlawful. For those couples wishing to unite, authorities required them to publicly a nnounce their plans. Virginia officials mandated that the partners publicize their “bannes.”26 Massachusetts enacted similar legislation, demanding “noe psons shalbee joyned in marriage” before the intention of the parties to marry was “publis hed at some time of pub like lecture or towne meeting” in plain sight fo r at least fourteen days.27 Another obstacle to marriage was partners’ responsibility to secure a marriage license. If these procedures were not strictly adhered, colonial officials did not sanction the pair’s vows. An unofficial marriage left a couple vulnerable to fornication charges and, if they conceived a child together, they were likely to stand trial for bastardy. While marriage was necessary for legitimate sexual relations, its functionality extended beyond the bedroom. Happily wedded c ouples were the surest way to prevent 25 Michael Zuckerman, “Pilgrims in the Wilderness : Community, Modernity, and the Maypole at Merry Mount” in The New England Quarterly 50:2 (1977), 265; Morgan, “The Puritans and Sex,” 593-94; Merril D. Smith, Sex and Sexuality in Early America (New York: W. W. Norton & Company, 1972), 87. Though their efforts varied by location and time period, colo nial leaders in both New England and the Chesapeake sought to channel sexual intimacy into the confines of marriage. 26 William Waller Hening, The Statutes at Large: Being a Collection of all the Laws of Virginia from the First Session of the Legislature in the Year 1619 Vol. 2, (Charlottesville: University Press of Virginia, 1969), 50-51. 27 Nathaniel Shurtleff, Records of the Governor and Company of Massachusetts Bay in New England Vol. 1 (Boston: The Press of William White, 1853), 275; The Colonial Laws of Massachusetts. Reprinted from the Edition of 1660 with the Supplements to 1672. Containing also the Body of Liberties of 1641 (Boston: Published by order of the City Council of Boston, under the Supervision of William H. Whitmore, Record Commissioner, 1889), 171-72.


17 non-marital sexual escapades and othe rs forms of illicit carnality.28 The spoken vows shared between husband and wife created a familial unit to raise and care for progeny. Moreover, wedded couples maintained a mu tual support system; thereby, providing stability and a modicum of financial security in a precarious world.29 The parents’ marital status was the deciding factor wh en differentiating between legitimate and illegitimate children. A foremost goal of matrimony was to validate intimate behavior, which resulted in socially acceptable offspri ng. Alternatively, sexual intercourse outside of marriage was a sinful transgression that eroded moral purity and distanced individuals from God’s grace.30 Within the patriarchal social structur e of British America, men found an added use for marriage. The patriarchal status of a husband/father ensured that he had unfettered access to his wife’s body, dominati on over his family and labor supply, and the right to control and punish members of his household.31 As husband and wife, a man’s power went unchecked in colonial house holds, as the woman submissively followed orders. Matrimony ensured the continuation of male lineage, preserved a man’s private property, and supplemented the hu sband’s wealth and power by transferring to him all of his wife’s land claims. Moreover, a child’s pa ternity was uncertain if couples were not in a monogamous union. A colonial court warned in 1654 that wh en couples “live together like man and wife one can never know when the woman will again be pregnant by him.” 28 Morgan, “The Puritans and Sex,” 604. 29 Teichman, Illegitimacy, 83. Jenny Teichman defines marriage as “a relationship between a man and a woman such that the children born to the woman are recognized as the legitimate offspring of both parents.” Teichman outlined four characteristics of marriage: (1) marriage sanctions sexual intercourse; (2) marriage sanctions reproduction; (3) marriage is an economic and domest ic arrangement designed for the support and maintenance of children; and (4) marriage is a mutual support system designed for the maintenance of the married partners. 30 D’Emilio and Freedman, Intimate Matters 4, 38; Stone, Uncertain Unions 17. 31 Brown, Good Wives, Nasty Wenches and Anxious Patriarchs 3-5. Brown explains that patriarchy was a “highly contested form of domestic authority.” See also Norton, Founding Mothers & Fathers 5


18 Following the public recital of vows, a ma rried man could confidently assert the legitimacy of his children and th e continuation of his surname.32 Thus far this chapter has focused on intim acy and nuptials in the British colonies; the conversation now turns to the fruits of c opulation outside of marri age. To appreciate colonial authorities’ reaction to and handling of bastardy cases it is necessary to consider the frequency of unlawful birt hs. The efforts by ministers and lawmakers to prevent illegitimacy achieved mixed results. Evidence shows that these officials were able to limit insolent carriages, though they were unable to eliminate them completely.33 The fear of public ignominy and corporal punishme nt was so great that it usually attenuated colonists’ libido. In a study of seventeenth -century Essex County, Massachusetts, Else Hambleton found that there were 126 documen ted non-marital pregnancies in this New England county during a fiftytwo year period. Considering the ineffectiveness of birth control and primitive state of abortive techni ques, the birth of 126 bastards was relatively few (naturally not all illicit carriages were recorded). Essex Count y was not an anomaly, for a number of other coun ties throughout Anglo America also had relatively low numbers of non-marital births according to their historical records. In Rowley, Massachusetts, the illegitimacy rate was roughly two percent between the years 1640 and 1692, with the number increasing to three pe rcent as the seventeenth century ended.34 32 Stone, The Family, Sex and Marriage in England, 1500-1800 37; A.J.F. Van Laer, ed., Minutes of the Court of Fort Orange and Beverwyck, 1652-1660 (Albany: University of the State of New York, 19201923), 189, as quoted in Wall, Fierce Communion 65. For more on the transfer of private property see Robert C. Tucker, ed., The Marx-Engels Reader 2nd edition (New York: W. W. Norton & Company, 1978), 81-93, 159-60. 33 See Morgan, “The Puritans and Sex,” 591, 595-96. Morgan contends that “illicit sexual intercourse was fairly common” and that it was so fr equent in fact, that Puritans “b ecame inured to sexual offenses.” Morgan explained that Puritans could tolerate such misconduct because humankind was flawed since the fall of Adam. 34 Hambleton, “The World Fill’d with a Generation of Bast ards,” 81-82, 343. While this study is important, the actual number of bastards may bear little resemblance to Hambleton’s statistics. It is impossible to


19 Similarly, the illegitimacy rate in Prince Georges County, Maryland, in the years from 1696 to 1699, came in nearly equal at 2.6 bastards per 100 births.35 The paucity of recorded bastardy cases s uggests two possible rationales. First, colonists who surrendered to the temptations of the flesh attempted to conceal their contraventions. Thus, colonial officials and judges failed to uncover an unknown number of non-marital births. For instance, in 1654, Martha absconded from New Haven after conceiving a child out-of-wedlock. To “avoyde the shame” of bearing a bastard, Martha and her sexual partner, John Richardson, c overed up their liaison by moving to Boston.36 Colonists who used this tactic and a host of others, such as concealed births, bribery, abortions, and infanticide, found a degree of success in their e ndeavors based upon the dearth of seventeenth-century illegitimat e births that appear in trial records.37 An alternative explanation to the low number of bastard births was that the consequences were so harsh that colonists decided the risk s were not worth it. Many colonists preferred abstinence over the stern punishments meted out to bastard bearers. Effective methods of account for the number of illegitimate that remained concea led and unknown to the community. Additionally, there is no telling how many bastard proge ny died during or after birth, whether intentionally or accidentally. 35 Laslett, Oosterveen, and Smith, ed, Bastardy and Its Contemporary History 354; D’Emilio and Freedman, Intimate Matters 33. The middle colonies (New Yo rk, New Jersey, Pennsylvania, and Delaware) experienced far fewer bastardy cases than its neighbors to the north and south. Between 1693 and 1707, only one in a thousand births occurred out of wedlock in Albany, New York. The first documented illegitimate offspring in Quaker congregations did not appear until 1780. 36 Charles J. Hoadly, ed., Records of the Colony or Jurisdiction of New Haven, from May, 1653, to the Union (Hartford, 1858), 122-23. See Cornelia Hughes Dayton, Women before the Bar: Gender, Law, and Society in Connecticut, 1639-1789 (Chapel Hill: The University of North Carolina Press, 1995), 175. Upon their return to New Haven, rumors surfaced about thei r illicit affair. Consequently, Martha and John faced criminal charges. 37 Roger Thompson, Sex in Middlesex: Popular Mores in a Massachusetts County, 1649-1699 (Amherst: The University of Massachusetts Pre ss, 1986), 29. Thompson discussed a wide variety of methods used to cover up an illegitimate birth. In addition to the ones already mentioned, Thompson explained other strategies including, deceiving midwives, paying midw ives to lie about the ch ild’s condition, bribing officials, agreeing to tricked marriages, and remaining within private accommodations when pregnant. Thompson’s study of the Middlesex County records reveal that colonists became increasing reliant on these deceptive tactics during th e second half of the seventeenth century.


20 veiling pregnancies and fear of repercussions largely explai n why bastardy cases did not saturate colonial court records. Puritan officials better monitored intimate behavior than their counterparts in the Southern colonies, increasi ng their likelihood of discoveri ng women who got big with child outside of marriage. Colonial settle ment was more dispersed in the Chesapeake, making efforts to regulate sexual conduct a Herculean task. The rural character and sparse population of Southern colonies provi ded ample opportunities for individuals to satiate their sex drive wit hout fear of getting caught. Furthermore, Chesapeake inhabitants had access to African women, who were unlikely to disclose the wrongdoings of white men. New England towns proved more conducive to supervising private matters because of the neighbors’ proximity to each ot her. Thus, New England authorities were more likely to uncover carnal misbehavio r than their Chesapeake counterparts.38 Initially, all colonies adamantly opposed sexual misconduct and desperately tried to curb immoral activity. As early as 1612, William Strachey, a chronicler and governing official, articulated Virginia’s opposition to fornication. Stern punishments were in place for those who violated sexual mores. Virgin ia officials punished an early seventeenthcentury couple for copulati ng outside of marriag e by forcing the pair to stand upon a stool in the middle of church with a white wand in hand.39 In 1619, the House of Burgesses, Virginia’s representative a ssembly, met for the first time. Among the legislative body’s first actions was instructi ng ministers and churchwardens to “seeke to presente all ungodly disorders.” Fornication was among these “disorders” that officials 38 D’Emilio and Freedman, Intimate Matters 12. 39 Gladwin, “Tobacco and Sex,” 69.


21 attempted to stamp out during th e early years of colonization.40 Up until the midseventeenth century, Chesapeake courts regul arly punished moral transgressions with swift and stern justice. As the Southern population grew and disper sed westward in the second half of the seventeenth century, efforts to prosecute sexual misconduct declined. For example, Mabel Hackney, daughter of W illiam and Elizabeth Hackney, grew fond of her neighbor, Francis Dodson. Unfortunately fo r Mabel, the object of her affection was already spoken for. Dodson’s wife and fa mily, however, did not dissuade Mabel from copulating with him. Their ill icit relationship resulted in a pregnancy. To avoid public humiliation and legal charges, William Hackne y married his daughter off to Nicholas Paine. The solution worked; there were no charges brought against either Mabel or Francis. In the time between the exampl es of William Strachey (1612) and Mabel Hackney (1687), Virginia courts grew less c oncerned with unlawful sexuality, especially when it involved non-bonded white colonists whose child did not pose a financial burden to the parish.41 Generally, the courts in the mother c ountry and the Chesapeake region rendered more lenient sentences in re sponse to carnal misbehavior th an did New England judges. This is not to say that these courts allowed for illicit affairs and impropriety to go unchecked. Similar to their New England c ounterparts, Southern colonists considered serious sexual crimes, such as bastar dy, rape, sodomy, and buggery, as grounds for 40 Laslett, Oosterveen, and Smith, ed, Bastardy and Its Contemporary History 356. 41 Darrett B. Rutman and Anita H. Rutman, A Place in Time: Middlesex County, Virginia, 1650-1750 (New York: W. W. Norton & Company, 1984), 121.


22 prosecution. Yet Chesapeake courts had a tendency to prosecute fewer people for a smaller number of crimes and in a less severe manner than did the Puritan legal system.42 By the end of the colonial era, New Engl and courts dealt with sexual immorality in a fashion similar to Southern judges’ reaction to the transgression. During the seventeenth century and the early part of the eighteenth century, however, Puritan officials maintained an arsenal of punishme nts for those who engaged in non-marital sex. Puritan judges handed down sentences rangi ng from “enjoyning [couples] to marriage, or fine, or corporall punishmt,” or some combination of these punitive measures. The penalty for sexual misconduct was somewhat arb itrary because Puritans believed that the real punishment was spending an eternity in hell.43 The Plymouth colony dealt with improper sensuality quite similar to the neighbor ing Puritans. Separati st officials ensured that both guilty partners faced retribution, which usually en tailed a public whipping or a fine of ten pounds. 44 Puritans and Pilgrims’ reaction to fornication in the seventeenth century was more stiff than was their southe rn neighbor’s handling of the transgression, though the differences faded by the end of the colonial period. The motivation behind prosecuting sexual mi sconduct differed in the two regions. New England courts were more concerned with punishing unlawful sex than the consequence of the action—illegitimate childre n. For example, Connecticut decided not to punish bastardy up until 1650, even though the colony crafted legislation that dealt 42 Norton, Founding Mothers & Fathers 324, 357. Norton described Chesapeake courts as being “more passive than active.” 43 Shurtleff, Records of the Governor and Company of Massachusetts Bay in New England Vol. 2, 21-22; Kai T. Erikson, Wayward Puritans: A Study in the Sociology of Deviance (New York: John Wiley & Sons, Inc., 1966), 90. 44 Demos, A Little Commonwealth 152.


23 harshly with fornication.45 Furthermore, New England courts had the sole distinction of prosecuting couples who conceived a child be fore saying their wedding vows. Because the couple was not married at the time of c onception, courts charged the man and woman with premarital copulation and deemed the child ill egitimate. Partners who engaged in sex prior to marriage composed more than tw o-fifths of all fornic ation charges in the New England region. Colonial Massachusetts re cords are filled with instances of courts indicting couples for having intercourse befo re their wedding. For example, a Puritan judge fined John Downham “20s ” for “getting his wife wth child” prior to exchanging wedding vows. Likewise, a Massachusetts cour t “enjoyned” Thomas Scot and his wife to stand at the marketplace for an hour with a “paper with great le tters, on their hatts” because the pair committed uncleanness (i.e. copulated prior to marrying).46 Conversely, Southern colonies and Engl and showed leniency to couples who married after participating in intercourse, regardless if the woman was already pregnant.47 The illicit fruit of fornication was of prim e concern to residents of England and the Chesapeake, not the act of conceiving the child. Nearly half of all sex-crime prosecutions in the Southern colonies were for bastar dy, while non-marital intercourse represented fewer than twenty percent of the cases. Th e complete opposite held true for Puritan45 Hambleton, “The World Fill’d with a Generation of Ba stards,” 344; Laslett, Oosterveen, and Smith, ed, Bastardy and Its Contemporary History 355-56. 46 Norton, Founding Mothers & Fathers 336; Records of the Court of Assistants of the Colony of the Massachusetts Bay, 1630-1692 Vol. 2, 94, 124; Edgar J. McManus, Law and Liberty in Early New England: Criminal Justice and Due Process 1620-1692 (Amherst: The Univers ity of Massachusetts Press, 1993), 53. McManus explained that the Old Testament allowed premarital fornicators to partially square things through marriage; Wall, Fierce Communion 65. Wall explained that Plymouth officials displayed a degree of leniency if the couple could prove that thei r sexual intimacy began “before marriage, but after contract.” For more on premarital pregnancies see Da niel Scott Smith and Michael S. Hindus “Premarital Pregnancy in America, 1640-1971: An Overview and Interpretation” in Journal of Interdisciplinary History 5:4 (Spring, 1975), 537-70. 47 D’Emilio and Freedman, Intimate Matters 10. Considering that up to one-third of all immigrant brides in the Chesapeake delivered a baby within the first nine months of marriage, it was almost necessary to overlook this transgression.


24 controlled colonies. In New E ngland, fornication totaled fifty percent of the prosecutions for sexual misconduct, while just one in ten cases involved illegitimacy.48 This chapter has highlighted colonial au thorities’ role in the regulation of marriage, sex, and illegitimacy in British America. Authorities throughout the Chesapeake and New England regions defined what constituted a proper marriage and prescribed the appropriate bounds for intimate behavior. Governing officials regulated copulation and social unions to buttress th eir own authority while limiting the autonomy of others. Elites were not above manipula ting bastardy as well. Authorities punished illegitimacy not only to protect the financia l solvency of the parish, but also to discriminate against non-whites, women, a nd servants. The remainder of this study investigates how and why coloni al authorities used race, clas s, and gender inequities to single out the more vulnerable members of society. 48 Norton, Founding Mothers & Fathers 336. For more statistics on the Southern colonies, see Horn, Adopting to a New World 361. Horn contends that moral offenses comprised between twenty to thirty percent of the cases that came before Charles, Lancas ter, and Lower Norfolk courts, of which bastardy was by far the most common transgression.


25 Chapter Three “A World of Wanton Wenches and Potent Patriarchs: Gender Inequities in Bastardy Cases” Priscilla Willson, a sixteen-year-old orphaned resident of Hammersmith, Massachusetts, conceived a child during an out-of-wedlock sexual rendezvous. The judge found Willson guilty of fornication, yet he failed to uncover the father’s identity. The Hammersmith community presumed that Samuel Appleton was the progenitor. The court, however, refused to act on this susp icion. Witnesses insinuated that Appleton forced himself upon the young and vulnerable Willson, who neighbors testified “behaved herselfe soe modestly and Civilly all her ti me before this transgression.” The sexual encounter caused Willson to get big with chil d, thereby indicating that she took pleasure in the experience.49 Puritan judges believed that Willson’s impropriety warranted punishment, regardless of whether Appleton wa s responsible for her carnal misdeeds. Court officials permitted the gender double stan dard to influence who faced prosecution and the severity of the sentence. Judges acquitted Appleton, who in all likelihood either seduced or raped Willson, from all charge s of wrongdoing. Conversely, court officials punished Willson for fornication and bastardy, even though her consent to sexual relations was dubious. The gender discrimination present in this case was representative 49Anglos believed that women had to sexually climax to conceive a child. Since society equated pregnancy with orgasm, courts exonerated me n who sexually assaulted women from rape charges if she became “big with child.” For instance, in 1680, John Hunkins, a sexual predator who had already impregnated one young woman, forced himself upon Sarah Lambert, another adolescent girl. Pregnancy resulted from Hunkins’s dastardly deed. Consequently, the court exonerated Hunkins of rape charges and prosecuted Lambert for fornication. See Hambleton, “The Wo rld Fill’d with a Generation of Bastards,” 319-320.


26 of both the large and small indignities a nd injustices facing women across colonial America.50 The court’s decision in the Willson-Appleton case illuminates the role that gender played in bastardy cases. This chapter doe s not refute that ille gitimacy laws were intertwined with financial concerns; rather it considers bastardy charges as a means to discriminate against women. Gender figured pr ominently into the courts’ prosecution of bastard bearers. Men often evaded legal ch arges for siring children outside of wedlock, while women committing the same transgression more frequently faced criminal charges. Another disparity between the sexes was th at they received unequal punishments for committing the same sexual contravention. Befo re investigating the correlation between gender and bastardy prosecutions, it is important to define what is meant by gender. Kathleen Brown defined gender as “the hi storically specific discourses, social roles, and identities defining sexual differen ce and frequently deployed for the purposes of social and political order.”51 Gender is neither a biological term, nor is it a description of male and female anatomy. Rather the word describes the culturally-assessed attributes assigned to the two anatomical models. Gender is a social construct that is defined by the traits ascribed to male and female. Ther efore, the concept is dependent upon time, location, and culture. The prevailing belief among white colonists was that an indivi dual’s sex (physical quality) was inherently linked to a gender role. The presen ce of a penis and testicles 50 M. G. Thresher, ed., Records and Files of the Quarterly Court of Essex County, Massachusetts Vol. 9 (Salem, Mass.: Essex Institute, 1975), 64; Smith, ed., Sex and Sexuality in Early America 1, 89. 51 Brown, Good Wives, Nasty Wenches and Anxious Patriarchs 4. Since this paragraph largely deals with the theoretical framework of gender, much of this information is up for debate. This paragraph does not intend to enter into a historical debate about the mean ing of gender, but rather the objective is to provide the reader with a brief understanding of gender.


27 translated to a certain gender role, while the absence of these anatomical parts represented a different gender role. Colonists believed that gender denoted much more than sexual organs, for it determined one’s abilities, aptitude, intelligence, and responsibilities. Colonial leaders relied upon the gender double standard to discriminate against women, much as they utilized racial inequities to oppress non-whites. Ultimately, the gender double standard was another met hod of preserving white, male supremacy in the British colonies.52 Gender biases were numerous and diverse in colonial America. The two major stimuli behind these inequalities were a male desire for power and a religious-based belief in female inferiority. By primarily implicating women on bast ardy charges, judges allowed their brethren wide latitude in sexua l relations. Men could participate in carnal affairs without fearing the re percussions of their actions. Meanwhile, women did not have the same freedom to express their sens uality. Men wielded power over their wives and daughters by controlling female sensua lity. Without autonomy over their own sexuality, women increasingly mirrored a form of property. Elites’ objectification and disempowerment of women buttressed the patr iarchal system and legitimized men’s right to rule. Colonial authorities used religion to justify a system of male supremacy. Hugh Latimer, a prominent sixteenth-century mart yr, expressed a commonl y held view among colonists: “For a woman is fr ail, and proclive unto all ev ils; a woman is a very weak vessel, and may soon deceive a man and bring him unto evil…” Designed in an image 52 See Keith Thomas, “The Double Standard” in the Journal of the History of Ideas 20:2 (1959), 195-216; Hambleton, “The World Fill’d with a Generation of Ba stards,” 58-59. Hambleton argued that a strong sexual double standard usually resulted in higher illegitimacy rates because men felt entitled to a woman’s sexuality. Additionally, men did not fear punishment because the judicial system tolerated such behavior.


28 and likeness of Eve, women had limited, if any, chance of transce nding their ancestral legacy and assert religiou s or political authority. All women possessed the same characteristics as Eve—weakness, instability, and naivety. These qua lities explained why Eve ate of the forbidden fruit and why colonial women could not be relied upon. Furthermore, men looked to John Milton’s Paradise Lost for confirmation of man’s natural superiority over the weaker sex: “h e for God only, she for God in him.” Though Southern colonists did not possess the same religious intensity as their Puritan counterparts, they shared a common belief in women’s sinful and flawed nature.53 Women’s inherent wickedness coupled with men’s thirst for power created a legal system that disproportionately penalized wo men for sins of the flesh. Adulterous relations and contemptuous carriages serve as prime examples of the gender double standard. New England judges charged women who engaged in extra-marital affairs with adultery, yet men who committed the same tr ansgression were guilty of fornication, not adultery. The difference between the two vi olations was not a matter of semantics. Rather it was an issue of life and death because extra-marital affairs were a capital crime, while non-marital sex was not.54 Gender inequities were more prominent in the Southern colonies. Chesapeake judges generally did not burden themselves with cases of husbands cheating on their wives. In the reverse s cenario, however, judges did not hesitate to punish the female offender. For instance, in Northampton County, Virginia, an adulteress was tied to the back of a boat and dragge d through the water for violating the law.55 53 Lonna M. Malmsheimer, “Daughters of Zion: New England Roots of American Feminism” in The New England Quarterly 50:3 (1977), 484-85; Ulrich, Good Wives 97; Demos, A Little Commonwealth 82; For more on religion in the Southern colonies see Edward L. Bond, Damned Souls in a Tobacco Colony: Religion in Seventeenth-Century Virginia (Macon: Mercer Univer sity Press, 2000). 54 Hambleton, “The World Fill’d with a Generation of Bastards,” 57. 55 Northampton County Records Vol. 1645-51, p. 148-49; Philip Alexander Bruce, Institutional History of Virginia in the Seventeenth Century Vol. 1 (Gloucester, Mass.: Peter Smith, 1964), 48. For more on


29 The gender disparity present in adulterous affairs also occurred in fornication and bastardy cases. Initially, coloni al courts disciplined bastar dy with a semblance of gender equality. It did not take long for Southern colonies to shift from gender neutral punishments to penalties that discriminated on the basis of sex. In the Chesapeake, roughly the same number of women stood tria l alone for bearing illegitimate progeny, as did so with their male partner. Since it requires both a man and woman to conceive a child, the fact that only half the fathers of illegitimate of fspring faced bastardy charges indicates the presence of ge nder inequalities. Of those men who stood trial along with their female mate, only one out of every thr ee of them received the same penalty as did their partner. Much as the Chesapeake lega l system shifted away from applying the law equitably to women, the Puritan justice sy stem followed a similar path. During the first decade of settlement, th e Puritan legal system sought out both partners in cases of insolent carriages and punished them with equal severity. By the 1640s and thereafter, however, New England courts were indicting more women than men on bastardy charges. Judges seldom prosecuted men for their unlawful embraces, unless the activity was particularly repul sive or egregious (i.e., bestiality, homosexuality).56 Conversely, women remained as vul nerable as ever to the whims of the court. For instance, from 1640 thr ough 1665, Essex County courts convicted 104 women of pre-marital sex after bearing an il legitimate child, while finding only thirtyfive men culpable of the same offense. Between 1665 and 1689, non-marital intercourse colonial adultery, see Norton, Founding Mothers and Fathers 238, 341-46, 39; Smith, Sex and Sexuality in Early America 290-91, 298-99; and Lyle Koehler, A Search for Power: The “Weaker Sex” in SeventeenthCentury New England (Urbana: University of Illinoi s Press, 1980), 146-53, 315-22. 56 Pagan, Anne Orthowood’s Bastard 128; Dayton, Women before the Bar 198, 206; Norton, Founding Mothers & Fathers 144; Ulrich, Good Wives 94. Ulrich argues that prosecution and punishment were more equitable than stated above, yet she is one of the very few historians to make such a claim. Based on the research for this thesis, the quantitative and primary data suggests a huge gender disparity.


30 accounted for forty percent of all female crim inal transgressions in Massachusetts, an increase of twenty-five percent from the pr evious twenty-five y ear period. Moreover, after 1710, anytime New Haven officials brought fornication charges against a man, they would indict the female partner as well. Naturally, the opposite did not hold true. Twenty years later, New Haven women rema ined susceptible to prosecution for sexual misbehavior, but their male partners, who we re “Equall with her in Transgration,” were strangers to the criminal process. New Haven officials decreased their efforts to apprehend the reputed fathers of illeg itimate progeny and, eventually, courts decriminalized non-marital intercourse.57 Along with men’s ability to elude prosecution for siring progeny out-of-wedlock, they received less severe sentences than their female counterparts. For instance, in the Willson-Appleton case, the judge exonerated Appleton for his impropriety while Willson faced the court’s wrath even though her cons ent to the illicit affair was dubious. Moreover, in Accomack County, Virginia, lawm akers ordered the father of a bastard to confess his sinful transgression before the ch urch congregation. Meanwhile, the mother suffered a stern punishment of thirty lashes on her bare back for having an illegitimate child.58 Religious convictions and gendered assumptions ensured that promiscuous women faced a more severe punishment than their equally guilty male counterparts. Generally, judges imposed a monetary fine on male bastard bearers, while women 57 Hambleton, “The World Fill’d with a Generation of Bastards,” 13; Norton, Founding Mothers & Fathers 346; Koehler, A Search for Power 354; Dayton, Women before the Bar 198, 206. 58 Bruce, Institutional History of Virginia in the Seventeenth Century Vol. 1, 47-48.


31 received a sound whipping, pecuniary fine, or an expanded period of servitude (if a servant).59 When a court found a man guilty of siring illegitimate offspring, the punishment was often financial. According to the Colonial Laws of Massachusetts any man convicted of fathering a bastar d child “shall be at the care and charge to maintain and bring up the same.” For instance, William F lint engaged in an extramarital relationship with a “slutt.” The debauched woman conceive d a child during the affair. Consequently, William had to pay a twenty pound fine, half went to the “Publique” and the remainder went to defray the cost of the bastard.60 Similarly, in Virginia, the punishment for an alleged father of illicit progeny was “keepi ng the child and saving the parish harmlesse [i.e., compensating the cost of the child].” Once men satisfied the monetary penalty or settled the charges for the ch ild’s upbringing, male bastardbearers reestablished their good name. Considering that judges typically prosecuted male servants for impregnating women outside of marriage, it was quite co mmon for men not to satisfy the courtimposed fines. If the father was a bonded la borer and/or could not afford to support the minor, safeguards were in place to ensure that he would eventually settle the charges. Instances when a “basterd is gott by a [male] servant” the parish cared for the child until the conclusion of the father’s indentured pe riod. Afterwards, the progenitor “shall make sattisfaccon” to the parish by reimbur sing the cost of the youth’s upbringing.61 In the meantime, fathers could avoid physical punish ment by performing community service. 59 Norton, Founding Mothers & Fathers 346; Laslett, Oosterveen, and Smith, ed, Bastardy and Its Contemporary History 359. 60 Records of the Court of Assistants of the Colony of the Massachusetts Bay, 1630-1692 Vol. 2, 137. The document spells the defendant’s name as William Fflin t. I dropped the second “f” in Fflint because it appears to be a misprint. 61 Hening, The Statutes at Large Vol. 2, 168, Vol. 8, 375. Additionally, see Virginia Magazine of History and Biography Vol. 5 (Richmond: Virginia Historical Society, 1928), 157.


32 Once a man served his punishment, he regained his reputation and social standing. The following anecdote aptly illustrates a man’s ability to transcend his carnal impropriety. Samuel Terry of Springfield, Massachusetts personified the c ourts’ toleration of male sexual misconduct. During a Sabba th sermon, young Samuel stood outside the meeting house “chafing his yard [penis] to pr ovoak lust.” Terry received a lashing for masturbating in public. In 1661, just eleven ye ars after his first offense, Terry’s wife delivered the couple’s first child after only five months of marriage. Clearly, Terry and his wife engaged in premarital sexual relations For their transgress ion, Terry paid four pounds for his unlawful sensuality. Twelve y ears later, judges sentenced Terry and eight other men to pay a fine for their performa nce of an “immodest and beastly” play. Notwithstanding his sexually illicit behavior Terry avoided a tarn ished reputation and remained in good standing among his peers. Th e repeat offender went on to serve as the town constable. Furthermore, a Puritan court entrusted Terry with custody of John Matthew’s infant son. Court records reveal that carnal misconduct was not uncommon in seventeenth-century Massachusetts and col onists took these violations in stride, particularly from elites and highly-skilled craftsmen.62 Though Terry’s impropriety caused a brief loss of honor, he and other men of wealth and reputation could take solace in the fact that the cons equences of sexual contraventions were temporary. A further example of the ge nder inequities involved th e indictment of Robert Wyar and John Garland “for ravishing two yong girles.” Upon a sear ch of the victims’ bodies, the Massachusetts Court of Assistants found Sarah Wy thes and Ursula Odle had been “defloured.” Despite a preponderance of evidence suggesting that the duo sexually 62 Stephen Innes, Labor in a New Land: Economy and Societ y in Seventeenth-Cen tury Springfield (Princeton: Princeton University Press, 1983), 132-33; D’Emilio and Freedman, Intimate Matters 15.


33 assaulted the victims, the jury found Wyar and Garland not guilty of violating the “Capittal Law.” The court sentenced the young men to a public whipping on market day in Boston and another flogging during Lectur e day in Cambridge. Garland and Wyar also paid a small fine to their masters. Shockingly, judges found Wythes and Odle, the young girls who were sexually victimized, guilt y of “wickedness” and ordered them to “bee severely whipped” in the “prsence of the Secretary.” The fact that the aggressors and victims received comparable sentences clearly indicated inherent gender unfairness in the prosecution of sexual crimes.”63 Men faced disciplinary action for non-marital intercourse and bastardy less often than their female counterparts not because there was an absence of punishments, but rather due to a handful of dynamics th at spared them from judicial fury.64 Courts hesitated to chastise one of their equals [i.e. a socially prominent or wealthy man]. Judges seldom reprimanded elites whose st atus often overrode their transgression. Another factor limiting a court’s ability to c onvict alleged fathers was the difficulty of establishing paternity. Whereas bystanders could look at a woman and tell if she was pregnant, there was no obvious way of dete rmining the father. Other than possibly bearing a physical resemblance to each other, the only way to link a father and child was by a woman’s admission. Often women were not forthcoming with this information, thereby allowing the father to escape legal charges. In a patriarchal society, women had the difficult and potentially dangerous option of either revealing or concealing their se xual mates. Disclosing the father’s name 63 Records of the Court of Assistants of the Colony of the Massachusetts Bay, 1630-1692 Vol. 2, 121. 64 This may seem contradictory because a number of me n were punished. While this is true, men faced prosecution less often than did their female counterp arts. Additionally, in cases where courts found a man guilty of sexual misconduct, there was often an a dded circumstance making a man’s sexual transgression particularly appalling.


34 transferred financial responsibility for the offs pring to him, thereby alleviating the mother of this burden. A woman who confessed the identity of the father, however, faced possible retaliation. The fear of revenge led many women to remain quiet on the matter. Alternatively, some women’s reticence to discuss the affair was the result of the man’s promise of incentives for remaining tacitur n. Either way, judges did not find women’s silence particularly troubling because they held women financially accountable for contemptuous carriages in the absence of a ma n. According to a North Carolina law, a woman that concealed the name of her partne r had to pay fines and provide “sufficient security to keep such Child or Children from being chargeable to th e Parish” or sentenced to prison. The unfortunate woman withered aw ay in jail until she settled the fines or disclosed the child’s father.65 Had lawmakers punished bastardy for financia l motives, as most historians claim, why did they continually prosecute women of meager financial means with such vigor? Although the answer remains el usive, court officials (i.e., elite men) likely punished women to bolster male control in the colony a nd to create an inexpensive labor source for plantation owners. Courts singled out the “fairer sex” for prosecution and sentenced them to harsher punishments. Women suffe red physically, emotionally, socially, and religiously for bearing an illegitimate child. A bastardy conviction left an indelible mark on a woman’s social standing, particularly in the New England colonies. Unless a woman came from a privileged family, engagi ng in non-marital copulation transformed an estimable virgin into a disreputable slut Such behavior further confirmed women’s 65 Walter Clark, ed., The State Records of North Carolina Vol. 23 (Goldsboro, NC: Nash Brothers, Books and Job Printers, 1904), 174.


35 innate lustfulness. Female promiscuity caught the ire of clergy, w ho already blamed the “weaker vessel” for humankind’s fall from grace.66 Furthermore, the loss of sexual purity je opardized a woman’s two most important functions—to marry and raise a family. A life of solitude was the most dreadful punishment that a Puritan woman could endure. Her primary objectives in life were to serve her husband, bear child ren, and worship God. Puritan women who were convicted of fornication or bastardy found their ma rital options severely limited. A study of bastard-bearing women in New England revealed that only twenty-nine percent of them went on to wed a man other than the child’s father. A much smaller number of women celebrated the vows of marriage with the men who impregnated them. The absence of a marriage partner significantly impacted a woma n’s ability to raise a family because there could be no legitimate children without exchanging the sacred vows of matrimony.67 In the Southern colonies, giving birth to illegitimate progeny did not necessarily prevent women from finding su itable marriage partners. Female scarcity in the Chesapeake ensured that women had ample opportunities to wed, regardless of a blemished reputation. A study of seventeenth -century Maryland re vealed that once a woman completed her period of servitude, she could find a suitable male partner notwithstanding her physi cal attractiveness (or lack ther e of) and socio-economic status.68 For instance, Jane Palldin of Maryland forni cated with a planter a nd, resultantly, got big with child. Palldin married a different man two years later despite her sexual contravention. In another incidence, Lucie St ratton and Arthur Turner engaged in sexual 66 Koehler, A Search for Power 74. 67 Koehler, A Search for Power 74; Hambleton, “The World Fill’d with a Generation of Bastards,” 190, 49-50. 68 Lois Green Carr and Lorena S. Walsh, “The Planter’s Wife: The Experience of White Women in Seventeenth-Century Maryland,” in the William and Mary Quarterly 34:4 (1977), 550.


36 intercourse outside of marriage. Stratton refused to spend the rest of her life with Turner, declaring that “hee was a lustfull man.” Stra tton’s rejection of Turner illustrated that Southern women felt confident that they would find an appropriate mate for life, regardless of their previous misconduct.69 Moreover, Dorothy Holt felt so empowered by the shortage of women in the S outhern colonies that she openly entered into an adulterous affair. Mrs. Holt bemoaned that her “h eart was soe hardened” by her husband, Robert Holt, that she “would never darken his door again.” Mrs. Holt left her husband and moved in with Edward Hudson, despite that her marriage to Robert Holt was still legal. Mrs. Holt’s conspicuous relationship with Hudson ultimately led to her imprisonment. While female scarcity extended greater righ ts and authority to women, they remained vulnerable to the whims of the court. Notwithstanding Mrs. Holt’s punishment, her confidence to flagrantly violate colonial laws illustrates a level of autonomy among Southern women.70 A similar degree of authority was not found among their Puritan equals. Whereas sullied Puritan women had to settle for who would have them, their Southern counterparts exercise d greater influence when choosing a mate. Though bastard-bearing women in the Ch esapeake often found marriage partners, the double standard thrived in the Southern colonies. Men receive d reduced punishments and transcended the shameful vestiges of ba stardy, whereas women faced judicial wrath and an eternal stain on their character. Judges were much more likely to convict a woman of bastardy than her male equal, de spite the couple’s mutu al responsibility for conceiving a child. When courts found both partners guilty of bearing illegitimate 69 Browne, Archives of Maryland Vol. 10, 516 and Vol. 41, 432-33 and 291-94; D’Emilio and Freedman, Intimate Matters 11. 70 Browne, Archives of Maryland Vol. 10, 109-112; Norton “Gender and Defamation in Seventeenth Century Maryland,” entire article; D’Emilio and Freedman, Intimate Matters 11.


37 offspring, the woman received a more rigorou s sentence. Women endured a barrage of penalties for sexual misbehavior, which grew more severe during the seventeenth century. For instance, the Virginia Assembly decided that penalties originally intended for men, should apply to women as well. It ruled that wo men were “lible to equall punishment” with the opposite sex. Not surp risingly, the reverse sc enario did not hold true. The Assembly ruled that in the absen ce of a man to defray the expenses of an illegitimate child, the mother assumed financial liability.71 Transferring the cost of “insolent carria ges” was an effective means of weakening female autonomy, while simultaneously st rengthening male control. Making women financially accountable for bast ardy was exploitative at its ve ry core. This legislation empowered men by ignoring their sexual misc onduct, while it increased the penalties women suffered for the same unlawful act. Th is meant that men could engage in illicit affairs without fearing harsh consequences or financially-drai ning repercussions. Women, however, grew more dependent upon me n because they could not afford to pay for the child. No group of women was more vul nerable to this new le gislation than house maids, who formed the largest demographic of bastard bearers. A variety of factors resulted in servants’ increased susceptibility to punitive measures. House maids frequently remained silent a bout their partner’s identity, en abling the court to stick these bonded women with financial responsibility. To make matters worse, servants possessed limited financial resources. Masters often de frayed expenses incurred by a female servant’s “contemptuous carriage,” but in return, she struggled through a lengthened 71 Quaife, Wanton Wenches and Wayward Wives 225. A comparable situation arose in the mother country. English courts increasingly expected women to settle the cost of illicit offspring. In approximately half of all bastardy cases, judges required the mother to keep and raise the child. Courts ordered the mother to pay someone else to care for the child in one out of twenty cases concerning illegitimate offspring


38 period of service. Judges not only absolved me n of their illicit rela tions, but also created for them a cheap labor force of bastardbearing women. Bastardy, a contemptible condition for women that carried with it viol ent lashings on bare skin and a sullied reputation, now profited male elites.72 Concurrent with Virginia’s new legisl ation, Massachusetts passed a law that pardoned men for their sexual lapses so l ong as they financially provided for any illegitimate offspring stemming from their activity. This 1668 amendment absolved men from bastardy and fornication convictions, while women remained vulnerable to these charges. Courts’ requirement of meager child support payments was a sign that male incontinency was less important than the promiscuity of their female counterparts.73 Judges did not intend for child support paymen ts to benefit the mother in any way, but rather to prevent parishes from enduring th e expense of rearing the child. Community support of bastards equated to a major tax burden on New Englanders. As the number of offspring born out-of-wedlock swelled, Pu ritan authorities believed it was more important to protect the economic solvency of the community than to punish male transgressors.74 Thus, Puritan leaders crafted a bast ardy law that shielded colonists from 72 Pagan, Anne Orthowood’s Bastard 84-85; Hening, The Statutes at Large Vol. 2, 114-15. Female servants either had to pay a fine of two thousand pou nds of tobacco or perform an additional two years of service. 73 John D. Cushing, The Laws and Liberties of Massachusetts, 1641-1691 Vol. 2 (Wilmington: Scholarly Resources Inc., 1976), 55; Hambleton, “The World Fill’ d with a Generation of Bastards,” 6, 30, 62, 95-97, 111, 260. 74 Around 1660, there was a notable shift in the per ception of illegitimacy and Puritan courts handling of the transgression. Several factors were integral to the change: decline in patriarchal control, young people became increasingly less truthful, increase of pare ntal permissiveness, emergence of the Half-Way Covenant, and rise of non-marital (including bridal) intercourse and pregnancies. See Thompson, Sex in Middlesex 104-105.


39 increased taxes and allowed men to circumvent punitive measures for their offense, while it unfairly targeted and rigorously disciplined women.75 Interestingly, the Puritans’ efforts to tr ansfer the economic co sts of illic it children to men had the unintended consequence of in creasing rather than decreasing the excesses of carnality. Though women remained suscep tible to corporal punishment and public shame, they no longer worried about the ec onomic consequences of fornication. New England women effectively distanced themse lves from financial responsibility for illegitimate offspring. Since judges expect ed men to cover the economic costs of a bastard youth, some historians assert that courts served the interests of the mother.76 Though judges seldom ruled in favor of female defendants, not all women allowed their subjugated status to prevent them from seeking justice. For instance, in June 1693, Christopher Wormeley impregnate d Margaret Devorage, a servant on his Middlesex (Virginia) plantation. Wormeley disciplined Devorage for conceiving an illegitimate child by increasi ng her period of servitude by two years. Challenging the punishment, Devorage maintained that she w ould perform no additional work once her 75 Morgan, “The Puritans and Sex,” 600-601; Fischer, Suspect Relations 103. 76 Fischer, Suspect Relations 104, 110, 113; Laurel Thatcher Ulrich, A Midwife’s Tale: The Life of Martha Ballard, Based on Her Diary, 1785-1812 (New York: Vintage Books, 1990), 149-151; Thompson, Sex in Middlesex 24; Edmund S. Morgan, The Puritan Family: Religion and Domestic Relations in SeventeenthCentury New England (New York: Harper & Row Publishers, 1975), 130; Morgan, “The Puritans and Sex,” quoted in the Middlesex Court Files Folio #30. Although female empowerment seems tangential to a study of gender inequities in bastardy cases, it is wort h considering. It cannot be stressed enough that the vast majority of women abided by the patriarchal system. There were a handful of women, however, that challenged the male-dominated system. Colonial women had no legal recourse (or at least very limited) and were essentially voiceless, tw o factors that did not bode well for female autonomy. Empowerment took many forms, including displacing responsibility for the child, abortion, infanticide, bribes, etc. The fear of severe punishment did not decrease bastardy, but rather left many women searching for ways to dispose of the evidence. Abortion and infanticide served as two methods of female empowerment because women avoided punishment for bast ardy and fornication if the tech niques were successful. Moreover, women falsely accused men of siring their illicit offsprin g either to avoid financial liability or protect the identity of the true father. For example, Elizabeth Wells, a Middlesex County, Massachusetts, maidservant announced “if shee should bee with child shee would b ee sure to lay it un to one who was rich enough [and] abell to mayntayne it whether it were his or no[ t].” When Wells conceived a child with Andrew Robinson, but falsely accused her master’s son, James Tufts, of impregnating her. Similarly, in an unsigned letter discovered in Middlesex revealed a similar incident.


40 “Servis is Expired.” Devorage filed lega l charges against Wormeley because he “Refused to sett your pettitionr [Devorage] free & to pay her Corne & Cloathes According to the Custome of this Country.” 77 Devorage, along with a plethora of nonwhites, women, and bonded individuals, understood that the construction and enforcement of colonial bastardy laws was i nherently unfair and cr eated an arrangement that permitted privileged white men to thrive at their expense. As evidenced by both the Willson-Appleton case (at the beginning of the chapter) and Devorage’s pursuit of justice, cultural factors merged with elite me n’s greed to transform bastardy from a moral issue into a discriminatory condition based on gender (as well as race and class as will be seen in subsequent chapters). 77 “Virginia County Court Records” Virginia Magazine of History and Biography Vol. 12 (Richmond: Virginia Historical Society, 1928), 191-193. See also Hening, Hening’s Statutes Vol. 2, p. 167.


41 Chapter Four “‘The Hazard of Bearing a Bastard was a Hazard of Being a Servant’: Class Dimensions in Colonists’ Understanding of Illegitimacy” Anne Orthowood, a twenty-four year old unmarried indentured servant, left behind her life in Bristol, Engl and, to start anew on the Easter n shores of Virginia. After settling into her new environment and beginni ng her term of bonded se rvice, Anne grew fond of John Kendall. Kendall was quite a catch by the standards of the time—a nonbonded, bachelor and nephew of Colonel William Kendall, a gentleman of great influence and status. A socially-sanctione d marriage was not an option for Anne and John because of the vast class disparity be tween them. Consequently, the young lovers concealed their passion behind closed doors. The couple’s affair yielded twins, yet because they were not married, the progeny we re illegitimate. Colonel Kendall opposed John and Anne’s secret affair and believed he had a duty to prevent illicit fornication involving laborers. Colonists f eared that non-marital sex wo uld lead to bastard births, thereby financially straining the parish a nd raising the tax burden for the wealthy. Furthermore, a carnal liaison between a pers on of privilege and a house maid challenged the social hierarchy.78 Sexual intercourse served as more than an intimate physical act between individuals in the colonial era. Physical pleasure and romance existed in sex, but these 78 Pagan, Anne Orthowood’s Bastard 3-6, 150.


42 qualities were not necessarily th e sole objectives of intimate involvement. Sex served as an arena for power, an act that involved ma le domination, and, most importantly, a locus to establish gender and social standing. Status and social rank were endemic to sexual relations, as fornication served to reify the so cial order. Social st atus predicted whether an individual faced prosecution for unlawful be havior and determined the severity of the punishment. Thus, class is a useful tool of hi storical analysis for exploring bastardy cases in the colonial era. While confirming historians’ contention th at financial considerations were of prime concern in illegitimacy cases, this chap ter investigates what role social status played in bastardy cases. 79 Wealthy individuals (mostly men, but some women), who could afford to pay the costs of rearing ill icit offspring, usually avoided prosecution. Conversely, colonial authorities primarily prosecuted bonded laborers not so much to protect the parish from the costs associated w ith insolent carriages, but rather to buttress their social control and w ealth. For instance, in th e Orthowood-Kendall example, Kendall could afford to raise the illegitimat e fruit of his relatio nship with Orthowood. Financial concerns were not the major issue in this case; inst ead, the fact that Kendall and Orthowood’s relationship crossed class lines e licited social condemnation. Furthermore, bastardy punishments illustrate the extent of rank-based discrimination, as class factors influenced the severity of the sentence. To apply class as an inst rument for historical study, it is necessary to define the con cept and explain how the social dynamic functioned in the British colonies. 79 The terms “social status” and “rank” are used intercha ngeably in this chapter. Class is also used as a synonym for status, but the reader s hould ignore the Marxist connotations associated with the word. The analysis of class in this chapter refers to a person’s social standing, rather th an a Marxist study of class (which is only marginally applicable to the Anglo co lonies). For more on the difference between class and rank, see Mary Beth Norton, Founding Mothers and Fathers 18.


43 Class represents the “inequa lity of human beings from the standpoint of social power.” In other words, cla ss is a socially-constructed c oncept that ranks individuals according to their prestige with in the community. Certain factors, such as wealth, ethnicity, race, and lineage, coalesced to create social identity, which, in turn, formed the basis of class groupings. These groupings were another instrument of social control, analogous to racial and gender inequalities. Colonial aut horities crafted a hierarchal social structure to buttress th eir own authority by stripping away all vestiges of power from the subservient class. Elites equa ted servants’ bonded status with inferiority, thereby making non-bonded colonists superior. The subjugated status of the subservient class was made all the more important when considering th at bonded individuals composed a major demographic segment. In fact, more than one-half of all immigrants arriving before 1776 at ports south of New England were servants. 80 Though servants were more frequently pr osecuted for bastardy and punished more harshly for the offense, people of all social cl asses were guilty of this crime. Bastardy did not happen only between subser vient or impoverished classes.81 Illegitimacy refers to the birth of a child to a couple that is not married and, theref ore, can occur irrespective of social status. Social status however, remained one of, if not the most, important factors in the prosecution and punishment of bastardy. Similar to gender disparities, class-based 80 Barbara J. Fields, “Ideology an d Race in American History,” in Region, Race and Reconstruction J. Morgan Kousser and James M. McPherson, eds. (New York: Oxford University Press, 1982), 150; Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs 4; Fischer, Suspect Relations 101. 81 Hambleton, “The World Fill’d with a Ge neration of Bastards,” 83, 54; Dayton, Women before the Bar 201-203. A study of seventeenth-century Massachusetts found that close to half of all women bearing illegitimate children were from families of middle or higher status. Connecticut prosecutions for nonmarital births further confirm a degree of vulnerability among men of privilege during the early years of colonization. Approximately twenty percent of Anglos charged with bastardy from 1670 to 1740 had a father that held a militia post or possessed an estate valued at five hundred pounds or greater. The preponderance of couples involved in conceiving a child out-of-wedlock in Connecticut was from middling families. Even in the Southern colonies, men and wo men of privilege sometimes found themselves facing prosecution for unlawful carnality.


44 inequities afforded elites greater sexual free dom, while they limited sexual liaisons of the subservient class. For less pr ivileged members of society, thei r status ensured that judges would look unfavorably upon them. There was a direct correlation between an individual’s social standing and the punishment that the person received. Servants faced widespread discrimination a nd harsh treatment in British America. Colonial planters characteri zed their bonded laborers as “f ilth and scum,” “miserable Wretches,” and “insolent young scoundrels.” Masters considered their servants dishonest, disloyal, and de praved. Bonded laborers received treatment nearly commensurate with Africans.82 Just as colonial officials re garded Africans as a licentious group, they attached an increased sexual de sire to the subservient class. Servant promiscuity was corroborated by court cases as laborers composed the bulk of defendants. Many of these trials focused on servants’ carnal misconduct, with bastardy ranking as the most common sexua l offense. As the number of servants increased, there was a subsequent rise in the illegitimacy ra te. Lois Green Carr and Lorena S. Walsh succinctly described the correlation between subs ervient status and insolent carriages as the “hazard of bearing a bastard was a h azard of being a servant.” Between 1658 and 1705, one in five female servants who immigrated to Charles County, Maryland, appeared before county courts on charges of conceiving a child outside of marriage. Conversely, judges prosecuted only a handful of free women for the same unlawful behavior. The offspring resulting from non-marital relationships between non-bonded colonists usually avoided the shame associ ated with the conditi on of their birth. Evidence from the mother country also suppor ts the conclusion that servants were 82 Philip D. Morgan, Slave Counterpoint: Black Culture in the Eighteenth-Century Chesapeake & Lowcountry (Chapel Hill: The University of No rth Carolina Press, 1998), 271.


45 particularly susceptible to bastardy charge s. A study of illegitimacy in early modern England found that a large proportion of bastar dy cases included indentured individuals. In the mother country, the majority of wo men prosecuted for non-marital births between 1570 and 1640 were domestic servants. There is a consensus within co lonial records and among historians that judges selectively ta rgeted servants for bastardy throughout the British world, yet the motivation behind their actions were less certain.83 Servants represented one of, if not, the most important and profitable form of property in the seventeenth century. Colonial official s regarded bonded laborers as “more advantageous…than any other commodity es.” It took less than a year for a servant’s production to exceed hi s/her initial cost, meaning that masters enjoyed years of essentially free labor. Anything interferi ng with laborers’ productivity was of great importance to the master. Thus, servants’ in timate behavior remained of interest to planters. Masters expected servants to work, not to fornicate and ri sk becoming pregnant. Elite Virginians claimed that bastardy among their labor force was “prejudiciall to the masters and mistresses of servants” because it interfered with a woman’s ability to carry out her duties. The birth of a bastard meant that the mother would take time off from work, thus creating poor dividends on the master’s investment.84 In addition to a servant’s lack of productivity while with child, there was a very real possibility that she 83 Bruce, Institutional History of Virginia in the Seventeenth Century Vol. 1, 48-49; Carr and Walsh, “The Planter’s Wife,” 547-48; Adair, Courtship, Illegitimacy and Marriage in Early Modern England 84. Adair describes a study found in Blaikie’s Illegitimacy Sex and Society: Northeast Scotland 1750-1900 In nineteenth-century Rothiemay, 94.5 percent of mother s of illegitimate children were listed as servants in the record books; See also Hambleton, “The Worl d Fill’d with a Generation of Bastards,” 35-36. 84 As will be discussed later in this chapter, master s used a servant’s pregnancy to their own economic advantage. Planters extended the indentured contract of servants who became pregnant before their term of service expired. The woman’s labor more than compensated for the cost of the child.


46 could perish during the pregnancy. The d eath of a maid meant that the planter completely lost out on his original investment.85 The regulation of servant fornication was not solely an issue of economics, but also a matter of control. Consequently, elit es often prohibited nuptia ls between servants, as a way to secure their labor force. Bonded individuals could marry only with the blessing of their master. Without the sacred vows of matrimony to legitimize their union and offspring, a servile couple faced criminal charges for satisfying each others sexual needs. Servants continued to enjoy the pl easures of the flesh despite the prohibitions placed upon their sensuality. The proximity of indentured workers translated into numerous opportunities for sexual rendezvous. Often carnal temptations proved too great, as servants’ libido prompted th em to contravene colonial laws. 86 For instance, Joshua Fletcher, a New England servant, admitt ed to sneaking out afte r bedtime to visit a fellow maid, Gresill Juell. Fletcher carried a ladder with him to climb through Juell’s window and, once there, he “kept company” with her. Most servants did not have to leave home to find a willing sexual partner b ecause there were ample indentured laborers located in the same dwelling. Even with the absence of privacy and cramped living space, it was not impossible for servant couples to copulate.87 While masters were unable to prevent servants’ promiscuous behavior, th ey did find ways to use it to their own 85 Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton & Company, 1975), 175; Carr and Walsh, “The Planter’s Wife,” 548; Pagan, Anne Orthowood’s Bastard 4; Bruce, Institutional History of Virginia in the Seventeenth Century Vol. 1, 45. 86 Fischer, Suspect Relations 110; Norton, Founding Mothers & Fathers 69; Mitchson and Leneman, Sexuality and Social Control, 183. Mitchson and Leneman describe an analogous situation in Scotland. They wrote, “A young man and a young woman serving together in the same household would be thrown together frequently, and the large portion of cases invol ving fellow servants shows that this temptation was indeed difficult to resist.” 87 Manuscript Files of Middlesex, Massachusetts, County Court folder 47, as quoted in Morgan, “The Puritans and Sex,” 598-99.


47 advantage. Courts bolstered planters’ authority and enlarged the labor force by criminalizing intimacy among servants. Judges’ decision to prosecute the subser vient class illustrates the presence of a status inequity in bastardy cases that often allowed men of privilege to evade punitive measures for siring an illegitimate child. Co lonial officials coul d dismiss illicit sex, adulterous relations, and liaisons with prostitu tes as lapses of elite men, but they sternly punished these offenses among men and women of inferior social standing. In other words, the violator’s class st atus was more important than the infraction itself. Elite status afforded men many opportunities that there less fortunate brethren did not have access to. It is incorrect to assume that pr ivileged men had a sexual carte blanche, but restrictions were few in number a nd mild in severity. A tacit toleration of elite men’s sexual exploits was found throughout the British world, including the Puritan controlled coloni es. Social classes in New England were somewhat problematic because many of the servants were sons and daughters of local farmers. Unlike in the Chesapeake, Puritan colonies did not rely primarily upon single, kinless immigrants as their la bor source. If a master sexua lly exploited his indentured laborers in New England, the victim could rely upon her family for security. Even with these protections, class inequities thrived in the New England colonies. During the second half of the seventeenth century and beyond, Puritan officials distanced themselves from a single standard for bastard bearers as social status influen ced who was prosecuted and the severity of the penalty. After 1668, Massachusetts men of social prestige and wealth “validated their virility” by simply pa ying two years of child support and enduring a modicum of public shame. This provided me n of financial means with sexual freedom,


48 while impoverished and bonded men faced soci al contempt, emphatic punishment, and a lifetime of indignities fo r their illicit behavior.88 A heated debate erupted in eighteenth -century Connecticut exemplifying the status dimensions of fornication cases. Th e nearly fifty year dispute centered upon who should be spared from fornication charges. On one side of the debate stood evangelicals, who sharply criticized the class biases present in the legal system. E lites’ ability to evade punishment angered evangelicals, who believe d that everybody had a responsibility to conduct themselves morally and honorably. Thes e pious men insisted that all fornicators should be held to the same standard, allowing neither gender, race, nor class to affect who judges prosecuted for bastardy and the punitive measures me ted out to the defendant. Conversely, newspaper commentators and mi ddle-class youths contended that class disparities were appropriate. They insisted th at courts should neith er indict respectable men and women for sexual misconduct nor prohib it them from freely engaging in carnal affairs. Meanwhile, this outspoken group believ ed that laborers and destitute individuals ought to be held to a different standard th at prevented sexual freedom. Connecticut judges were stuck in the middle of the debate, but tended to si de with socially aspiring adolescents and newspaper commentators. Courts increasingly distanced themselves from calling all sinners to account equally for their transgressions. Consequently, judges selectively targeted poverty-stricken servan ts while sheltering men (and a fewer number of women) of reputation and affluence.89 88 Fischer, Suspect Relations 122; Hambleton, “The World Fill’d with a Generation of Bastards,” 40. New England judges became more discriminatory in their handling of bastardy, as th e condition shifted from a religious to secular crime. 89 Dayton, Women before the Bar 65, 208-09.


49 Similarly, Southern courts directed th eir legal wrath against servants, while overlooking the sexual exploits of the wealthy and propertied. Planters had numerous opportunities to find bed mates because of the abundance of servants and slaves extending across the Chesapeake. Even if colonists did not sa nction elites’ sexual immorality, they refused to openly condemn the practice. Likewise, courts seldom punished the carnal misconduct of elites. In fact, illicit affair s did not affect a gentleman’s ability to climb the social ladder. Promiscuous colonial officials were held in high esteem despite their lascivious nature Had courts went after a man of reputation and wealth, he could avoid legal chastisem ent by making private compensation to his paramour.90 English officials also were tolerant of sexual licentiousness among men of status. Aristocrats did not fear rebuke for their sexual escapades. In 1739, an anonymous English writer asserted that extramarita l intercourse among gentlemen was “rather esteemed a fashionable vice than a crime. ” Men looked upon women of equal or lesser status as lustful. Therefore, these immo ral women were appropriate objects of sexual desire. Gentlemen’s decision to fornicate wi th “inferior” women was neither socially accepted nor condemned, rather the act rema ined largely unmentioned. The English aristocrat and Virginia planter, William Byrd, personified the sexual permissiveness among the English gentry. Byrd’s countless se xual conquests usually involved women of lower social standing. On October 4, 1718, By rd paid a visit to Mrs. A-l-n’s house in London, but she was not there. Rather than returning home unsatisfied, Byrd “committed uncleanness” with the maid. Byrd’s sexual appetite was not satiated and, upon Mrs. A-ln’s return, he “rogered” her. Byrd faced no shame or punishment for enjoying the carnal 90 Smith, ed., Sex and Sexuality in Early America 133.


50 pleasures of two women in one night, despite bein g married to neither of them. As a member of the gentry, Byrd involved himsel f in scandalous affairs and adulterous liaisons and lived according to a common set of values that endorsed pleasure, promiscuity, and indulgence.91 Relationships between elite men and se rvant women were a relatively common practice that partially account for the la rge number of bastard births among the subservient class. Planters’ countless opportunities to exploi t female laborers were too great of a temptation for many of them to avoid. Moreover, in a patriarchal society, women understood that rejecting a planter’s offer to copulate was futile. There were no safeguards in place to prevent a master from having his way with laborers. The odds of successfully prosecuting a planter for rape were negligible, as judges did not like to punish men of reputation and financial means. Without legal recourse, servants had to submit to their master’s whims and wishes.92 Though masters’ exploitation of female laborers was mo re widespread in the Chesapeake, a similar pattern of abuse occurr ed in the New England colonies. In the colonial era, women remained vulnerable to their master’s sexual advances. In Middlesex County, Massachusetts, Elizabeth Dickerman brought legal charges against her master, John Harris, for “profiring abus to her by way of forsing her to be naught with 91 Stone, The Family, Sex and Marriage in England, 1500-1800 330, 339; Quaife Wanton Wenches and Wayward Wives 181-82; William Byrd, The Prose Work of William Byrd of Westover: Narratives of a Colonial Virginian Louis B. Wright, ed. (Cambridge: The Belknap Press of Harvard University, 1966), 14. 92 Spruill, Women’s Life and Work in the Southern Colonies, 322; Fischer, Suspect Relations 108; Adair, Courtship, Illegitimacy and Marriage in Early Modern England 85. Masters unquestionably used their authoritative position to seduce young women and coerce them into having sex. Some intimate relations were consensual, but the very environment that they occurred in compromised a woman’s ability to choose. Adair studied sexual relationships between master and servant in 250 parishes. In several incidences, the master and servant had intercourse on a number of occasions, suggesting a degree of mutual acceptance. In a case in Buckinghamshire, John Wansel and his housekee per, Joane Norris, had five children together over the span of fifteen years before later marrying.


51 him.” Harris warned Dickerman of serious consequences if she divulged the event. Accordingly, Dickerman lamented that if she co ntinued to “liwe ther shee shall be in fear of her lif.” While sexual manipulation was common in New England, it approached epidemic levels in the Chesapeake region. Southern planters had access to numer ous bonded women who were defenseless to the master’s sexual whims. Not on ly could Chesapeake men sexually victimize subservient women without fear of punishment but they could also profit from the relationship. For example, in Middlesex C ounty, Virginia, Jane Floyd received an added year of service to her contract for “having a bastard begotten by her Master.” Rather than punish the master, the court required Floyd to serve Matthew Kemp, a local planter, for one year. Kemp paid the parish five hundred pounds of tobacco in return for Floyd’s services. This was a very lucrative deal for Kemp because Floyd’s productivity far exceeded the worth of five hundred pounds of tobacco. Furthermore, in England, Anne Hunthatche had an illegitimate child with an anonymous part ner. Reports surfaced that Hunthatche’s master, Roger Beckley, impregnate d her. Four days later, English officials discovered Hunthatche drowned in a brook. A jury found the se rvant “gyltie of her owne deathe.” The court defiled the servant’s lifeless body by placing stones on top of the corpse and driving a stake through it. In all likelihood, Beckley se xually violated his servant and, when she got big with child, he murdered the young maid. Not only did the master avoid any punishment whatsoever, but Hunthatche suffered punitive measures even after her death.93 93 Hambleton, “The World Fill’d with a Generation of Bastards,” 82; Manuscript Files of Middlesex, Massachusetts, County Court folder 94 as quoted in Morgan, “The Puritans and Sex,” 600 (The master was whipped, but still a minimal penalty); Registers of Churchill in Oswaldslow as quoted in Adair, Courtship, Illegitimacy and Marriage in Early Modern England 83-85; See also Ramon A. Gutierrez,


52 In instances where a judge found a plan ter guilty of impregnating one of his servants, punishment was not necessarily forthcoming. In the event that they faced criminal proceedings, influential men utili zed various techniques to avoid a guilty verdict. Commonly, masters employed servants to “fix” a potentially shameful situation. For instance, in 1705, Anne Webb, a servant in Middlesex County, Virginia, appeared before the court for bearing a bastard chil d. Webb misleadingly claimed that Daniel Hughes, an overseer at John Wormeley’s plan tation, impregnated her. Thus, the “fix” protected the identity of the real father. Wormeley, the plantation owner, actually fathered the offspring but had one of his ove rseers take responsibility for the action to avoid a potentially tarnished reputation.94 Master-servant relationships were profita ble for the man, while exploitative and excessively punitive for the woman. Servants who were impregnated by their master had to perform two additional years of service beyond the expiration of their contract to compensate for the master’s “loss and troubl e” and pay a fine of two thousand pounds of tobacco. For instance, a North Carolina court convicted Elizabeth Fitzgarrett of bastardy during her term of service. Consequently, the judge orde red Fitzgarrett to serve her master, Thomas Speight, for “two yeares over and above the time she is to Serve.” The extension of laborers’ contract served a two-fold purpose. First, the additional year(s) of service greatly benefited planters becaus e labor was a highly-valued commodity in British America. Second, judges further dela yed freedom to servants. Augmenting the When Jesus Came, the Corn Mothers Went Away: Marriage, Sexuality, and Power in New Mexico, 15001846 (Stanford: Stanford University Press, 1991), 184, 199. A similar phenomenon occurred in the Spanish colonies. Aristocrats often conducted sexual relations with their slaves. Upon his death, a Santa Fe don admitted to taking the virginity of his Indian slave. Baptismal registers listed children born from these illicit relationships as “father unknown.” 94 Rutman and Rutman, A Place in Time 162-163.


53 period of servitude created a very lucrative arrangement for elites and allowed colonial authorities to more easily im plement their will upon laborers.95 While planters typically assumed fina ncial responsibility for illegitimate offspring, the laborer’s lengthened term of service more than compensated for the expense. In Massachusetts, masters could expect to pay three shillings a week to care for a bastard child. This was a paltry sum consid ering that the master increased the servant’s bonded period and bound out the illegitimate prog eny to another planter. The labor shortage in the Anglo colonies (particularl y in the Chesapeake) meant that augmenting the work force and extending periods of serv itude were profitable exchanges for the small expense of raising a child. To alleviate th e labor shortage, courts often did not bother locating the fathers of illegitima te offspring. Without a father to assume the cost of the child’s upbringing, the mother ha d to perform a longer period of service to compensate the master for defraying the progeny’s expense.96 Colonial authorities were unwilling to a llow servants to avoid prosecution for having an illegitimate child, regardless of whet her the master was responsible or not. If courts had exonerated women who “gott with child” by their master, “it might probably induce such loose persons to lay all their ba stards to their masters.” By not punishing 95 “Abridgement of Virginia Laws, 1694” in Virginia Magazine of History and Biography Vol. 5 (Richmond: Virginia Historical Society, 1928), 52; William L. Saunders, ed., The State Records of North Carolina Vol. 1 (Raleigh: P. M. Hale, Printer to the State, 1886), 655; Hening, The Statutes at Large, Vol. 8, 377. 96 Morgan, The Puritan Family 131; George F. Dow, Records and Files of the Quarterly Courts of Essex County Massachusetts (Salem, 1911-1921), Vol. 2, 68, 372 384 and Vol. 5, 410-411; Spruill, Women’s Life and Work in the Southern Colonies 321. Judges eventually limited the benefits for masters who got to know their servants carnally. In 1696, Virginia legisl ators reduced the servant’s se ntence from two years to one year, an act later replicated by North Carolina in 1741. Additionally, lawmakers prohibited the master and his executors and administrators from any claim ag ainst the maid for any reas on whatsoever. Virginia courts continued to lengthen the indentured period of servants, but rather than have them serve their masters, parish churchwardens sold the maids to another planter for a period of two years. By stripping away the masters’ personal gain, court officials hoped to limit planters’ sexual interest in their maids. See Hening, The Statutes at Large Vol. 6, 361; Walter Clark, ed., The State Records of North Carolina Vol. 23, 195.


54 female bastard bearers, elites feared that maids would claim that their master impregnated them and, thus, avoid disciplinary measur es. Colonial courts ensured servants’ powerlessness by holding them completely liab le for the fruits of illicit relations, notwithstanding if they consente d to it or not. Master-serva nt relationships represented two conflicting images for th e parties involved. For the master, the servant was an acceptable sexual release valve. A planter f aced no shame or punishment for his actions and, through most of the col onial era, he economically profited from the debauched affair. On the other hand, servants were in a precarious situation where they had little choice but to submit to their master’s wishes. It is not too hyper bolic to compare life on the plantation to one of Dante’s fiery layers of hell. Servants performed back-breaking labor, endured second-rate living conditions and always faced the possibility of unwanted sexual advances.97 Servants and other financially destitute colonists faced swift and stiff discipline for bearing illegitimate offspring. Laborers who engaged in illicit behavior endured a barrage of punishments for their physical in timacy, while society tolerated the same activity among higher society. The fact that labo rers were punished more severely than a master for bearing a bastard was the nature of colonial society. Status inequities were endemic to the British colonies and influe nced judges in both the New England and Chesapeake regions. The appli cation of fornication laws was never uniform or fair. Colonial elites understood that wayward beha vior among the subservient class challenged their authority and, therefore, leaders specifica lly targeted servants for prosecution. For instance, in 1696, Colonel Lawrence Smith of Gloucester County, Virginia, delivered a 97 Hening, The Statutes at Large Vol. 2, 167


55 proposition to the House of Burgesses “for Ease ing of parishes in th at Excessive Charge that lyes upon them by meanes of Ba stard Children born of Servant Women.”98 Female servants were not al one in enduring the wrath of colonial justice, for male laborers also suffered from their second-clas s status. Status in equities accomplished something that neither gender nor raci al discrimination could—it ended the invulnerability of (many) white men to legal punishment. Elites us ed the protections and privileges that status brought them to sepa rate themselves from other men who lacked money and influence. The social hierarchy en sured that servants suffered more often and more severely than men of privilege and wea lth for the same transg ression. For men who could not afford to raise an illegitimate chil d, court officials mandated that they “shall make Sattisfaccon” to the parish. Indentured men who impregnated a maid had to serve her master for one year or pay 1,500 pounds of tobacco to compensate for the woman’s lack of productivity while with child. In addition, courts mandated that male servants defray the cost of illegitimate progeny. For ex ample, a Virginia stat ute described placing the male laborer “in security to kepp the pari sh harmless.” Whereas most free, white men never faced prosecution for bastardy in Ch esapeake courts, judges often charged indentured men with the transgression.99 Meanwhile, non-bonded men and women relie d on their status to avoid or mitigate punitive measures. Courts seldom targ eted free whites for prosecution unless an illegitimate child resulted from their illicit sex. Even this did not necessarily entail legal charges against the couple. Free persons often faced a fine and, in the more extreme cases, they suffered a whipping. As the coloni al era neared its e nd, judges abated their 98 Norton, Founding Mothers & Fathers 132-33. Spruill, Women’s Life and Work in the Southern Colonies 315-316. 99 Hening, The Statutes at Large, Vol. 3, 140


56 practice of whipping free wome n for failing to pay pecuniary fines. Servant women, however, continued to endure relentless lashings on their bare skin. Moreover, nonbonded women were not as vulnerable as house maids to sexual exploitation by elite men because many of them already had a husband or suitor. Colonial authorities sought to protect the pureness of white women of st atus. Though society tolerated privileged men’s sexual liaisons with servants a nd slaves, it vociferously condemned the deflowering of a non-bonded, white virgin.100 Social rank remained a significant factor in the prosecution and punishment of bastardy in Anglo America. J udges’ decision to prosecute th e financially destitute while they pardoned the wealthy suggests that status inequities thrived in illegitimacy cases. The sexual conquests of influential men did not threaten the social structure or conflict with the established ruling class of the colony. Court o fficials, however, viewed sex among subservient populations as a societal ev il and a direct challe nge to elite, white male control. As the chapter’s introduc tion showed, Anne Orthowood and John Kendall, a servant and an influential gentleman re spectively, could not openly unite as husband and wife because their dissimilar social rank did not permit such a marriage. Kendall’s prominent uncle, Colonel William Kendall, cond emned relations between respectable and wealthy colonists and laborers and attempted to thwart union s that crossed class lines. Therefore, preservation of the class hierar chy and maintenance of social stability, together with monetary concerns, guided la wmakers’ discriminatory handling of bastardy cases. 100 Hening, The Statutes at Large, Vol. 8, 376.


57 Chapter Five “‘Spurious Issue’ and ‘Abo minable Mixtures’: Racial Inequities in the Conceptualiz ation of Colonial Bastardy” In May of 1694, Frances Driggus, an African -American servant, appeared before the grand jury of Northampton County, Virginia, for the “sin of fornication.” The judges ordered the young woman to serve her master, John Brewer, for an additional two years and to receive thirty lashings on her bare s houlder. Soon after, the court brought bastardy charges against Driggus for an illegitimate child stemming from her illicit affair. Recalling the court’s stern punishment for fornication, Driggus hoped to elude full responsibility for the bastard offspring by d eclaring that Brewer was the progenitor. Brewer categorically reject ed the assertion, contending he “never knew her or was concerned with her in any such way.” Despite Driggus’s assurance that Brewer impregnated her, judges ignored the accusati on because “what evil consequence such presidents [precedents] may futurely be if unduely grounded.” Rather than enforcing morality and holding the guilty accountable, th e lawmakers transferred the case to the Governor and the Virginia C ouncil because the grand jury re fused to recognize the oath of a black woman in “soe tender a case.” Meanwhile, the judges sentenced Driggus to either pay a fine (which she obviously could not afford) or su ffer another thirty lashings, while they exonerated Brewer.101 101 Northampton County Deeds, Wills, Etc., 1689-1698, 274, 279, 322. Quoted in Lois Green Carr, Philip D. Morgan, and Jean B. Russo, Colonial Chesapeake Society (Chapel Hill: University of North Carolina Press, 1988), 285.


58 The court case of John Brewer and Fran cis Driggus reveals that interracial copulation and illegitimate mulatto offspri ng precipitated public rebuke and contempt. This chapter explores colonists’ understand ing of race and how this cultural phenomenon influenced the creation and implementation of bastardy legislation, as well as the punishment for those who violated the law. The racial disparitie s found in the case of Brewer and Driggus and others like it are not adequately e xplained by financial concerns alone, for there were other factors that swayed judges’ decisions. In the Brewer-Driggus trial, the judge was unwilling to accept a bl ack woman’s testimony, thereby leaving her vulnerable to the whims of the court while Brewer did not face punitive measures. Miscegenation also occurred between African men and white women, a relationship that elicited the strongest condemnation among colonial officials. If r acial concerns were inconsequential to bastardy cases, why were elite men able to evade prosecution for interracial relations, while wh ite women faced stern and, occasionally, brutal punishment for the same act? To employ race as an inst rument of historical analysis, it is first necessary to define what is meant by the cultural dynamic and explain why the concept was used.102 Race was a method of rationalizing, legiti mizing, and scientifically explaining why non-whites were inferior to Europeans. White colonists relied upon skin color to determine an individual’s worth. Lighter complexions represented respectability and intelligence, while darker shades symbolized savageness and ignorance. Race signified an individual’s abilities aptitude, and potential and, above all these things it established a person’s worth. Colonists understood race as a fixed characteristic, yet in retrospect 102 Brown, Good Wives, Nasty Wenches and Anxious Patriarchs 4; Martha Hodes, Sex, Love, Race: Crossing Boundaries in North American History (New York: New York University Press, 1999), 1.


59 this belief was short sighted a nd highly flawed. The attachme nt of certain traits to the color of one’s skin pigment is culturally de fined, not biological or unalterable. The qualities associated with pigm ent color varied according to location, value system, and time period. In other words, race is a product of history, not of nature.103 In colonial America, elites effectivel y used skin tones to define authority, citizenship, marriage, and c ontrol. British colonists invoked racial categories to legitimize, buttress, and justify the distribu tion of power in Anglo America and maintain the social hierarchy.104 Elites used racial, class, and gender discrimination to divide the colonial populace and, by doing so, they were ab le to sustain their authority. An example of this was elite men’s ability to prohib it sexual relations between white women and African men. Thwarting sensual liaisons between the races preserved white women solely for white men and limited interracial cooperation. Colonial officials could not prevent these unlawful affairs from occurring, but they coul d decrease their frequency by policing racial boundaries. Therefore, authoriti es relied upon the severity of bastardy and fornication laws to serve as a deterrent to r acially-heterogeneous affairs. In other words, bastardy prosecutions were aimed at more than monetary concerns, for they were a way to limit interracial relations (particularly for white women and African men).105 From the outset, Europeans who co lonized America brought with them preconceived notions about th e inferiority of Africans. Englishmen believed their lifestyle, religion, knowledge, customs, and skin color were far superior to that of 103 Fields, “Ideology and Race in American History,” 152, 149. See also Colette Guillaumin, Racism, Sexism, Power, and Ideology (London: Routledge, 1995); Hannah Arendt, Origins of Totalitarianism 2nd Edition (New York: World Publishing 1969); and David Brion Davis, The Problem of Slavery in Western Culture (Ithaca: Cornell University Press, 1966). 104 Jennifer Michel Spear, “‘Whiteness and the Purity of Blood:’ Race, Sexua lity, and Social Order in Colonial Louisiana,” (Ph. D. diss., University of Minnesota, 1999), 29. 105 Nell Irvin Painter, “‘Social Equality,’ Miscegenation, Labor, and Power,” in The Evolution of Southern Culture Nurman V. Bartley, ed. (Athens: Un iversity of Georgia Press, 1988), 48.


60 Africans, who the British viewed as technol ogically primitive, spiritually empty, and culturally inept. Europeans extolled their own discoveries of new lands, breath-taking achievements in the arts and humanities, a nd advances in the sciences, while they disparaged Africans’ lack of progress. Due to the perceive d differences between whites and non-whites, the colonial era witnessed a ha rdening of racial at titudes. Africans’ sexual promiscuity and dark skin color ma de them disparate from whites. White colonists regarded Africans as more carnal, beastlike, and lascivious than themselves. Andrew Battell, an English explorer in West Africa during the Elizabethan era, wrote, “They [Africans] are beastly in their living fo r they have men in women’s apparel, whom they keep among their wives.”106 Once Africans disembarked from the rancid slave ships onto the eastern shores of North America, they were greeted with shackles and forced labor. Over the course of the seventeenth and eighteenth centu ries racial prejudices crys tallized. Initially, however, colonial officials were less vocal in their opposition to interracial unions before the entrenchment of slavery.107 White servants and blacks of ten empathized with each other, as their lives were marked by numerous sim ilarities. On several occasions, whites and Africans would socialize together, runaway t ogether, flout the law together, and engage in illicit sex together. Provi ded that Negroes composed a numerically insignificant part of society, there was little for white colonists to fear. As the number of Africans swelled, 106 D’Emilio and Freedman, Intimate Matters 35; Ernest George Ravenstein, ed., The Strange Adventures of Andrew Battell of Leigh, in Angola and the Adjoining Regions (London: Hakluyt Society, 2d Series 6, 1901) as quoted in Winthrop D. Jordan, White over Black: American Attitudes Toward the Negro, 15501812 (New York: W. W. Norton & Company, 1968), 32-33, 43; 107 D’Emilio and Freedman, Intimate Matters 34, 35. This statement is a generalization and, therefore, does not apply to each county or colony. In a broad se nse, British colonists were more receptive to the idea of interracial affairs during the ear ly years of colonization than they were towards the end of the seventeenth century. As the number of Africans incr eased and the institution of slavery became more vital (among other factors), offi cials grew more critical of interracial affairs.


61 however, colonial elites felt ever more th reatened by the amity between whites and blacks. They knew that the surest way to sa feguard the colonial pow er structure was to create hostility between poor Br itish colonists and Africans. The Virginia Assembly took the lead role in curbing interracial camarader ie by passing a series of acts to foster disdain and dislike between whites and non-whit es. Virginia officials prohibited free Indians and blacks from owning Christian sl aves after 1670. Just ten years later the Assembly ordered thirty lashes for any slav e that “lift up his hand in opposition” to any Christian (i.e. white colonist). This law pe rmitted British servants to lash out at slaves without fearing repercussions, while denying Africans the righ t to defend themselves or strike back. In 1705, the Assembly afforded indentured whites protection from their master’s whip, yet Negroes remained vulnerable to brutal physical di scipline. By casting black skin color as a mark of inferiority, el ites diminished the affinity between lowerranking Europeans and Africans.108 Colonial society grew more tolerant of sexual misconduct between whites in the eighteenth century, yet the period also witn essed increased opposition to interracial relations. Between the 1660s and the turn of the century, coloni al leaders and court officials increased the punishment for inte rracial fornication, making it incommensurate with the penalties for intra-r acial relations. By 1750, the entire Chesapeake region, parts of New England, and Pennsylvania had laws pr ohibiting sexual rela tions between whites and non-whites. Colonial lawmakers denounced miscegenation in what Winthrop Jordan described as “language dripping with dist aste and indignation.” A 1664 Maryland law referred to racially-mixed unions as “s hamefull Matches.” In 1691, the Virginia Assembly took action to prevent the “abominab le mixture and spurious issue” caused by 108 Morgan, American Slavery, American Freedom 327, 329, 331.


62 non-whites intermarrying with white women. Similarly, a North Carolina law declared that “no White man or woman shall intermarry with any Negro, Mulatto or Indyan Man or Woman under the penalty of Fifty Pounds for each White man or woman.” 109 Massachusetts also passed a bill that crim inalized sensuality and marriage between British colonists and non-whites. Rhode Is land banned interracial marriages, declaring them “absolutely null and void.” Delaware as well joined with other colonies in opposing racially-mixed relationships. T hough the colony did not outlaw interracial unions, Delaware authorities imposed a double fine in bastardy cases with mulatto children. There was universal opposition to interracial unions and the fruits stemming from these relations throughout Anglo Ameri ca, though the degree of resistance differed based on location and time.110 Male planters, who essentially dominated colonial society, typically evaded punishment for interracial sexual relations. Fo r instance, a member of Virginia’s House of Burgesses reportedly enjoyed the “darke imbraces of a Blackamoore, his slave.” The colonial representative suffered no shame or rebuke for his sensual misconduct. Even if 109 Laslett, Oosterveen, and Smith, ed, Bastardy and Its Contemporary History 358; Jordan, White over Black, 139; Morgan, Slave Counterpoint 15; Hening, The Statutes at Large, Vol. 3, 86-87; Hodes, Sex, Love, Race 115; Morgan, American Slavery, American Freedom 334-335. Not only was this statute blatantly racist, but it was also sexi st because it did not apply to white men. This law abandoned earlier sanctions placed on Anglo men’s ability to fornicate with non-whites; Clark, ed., The State Records of North Carolina Vol. 23, 65. The legislation prohibiting interracial marriages began in Maryland and Virginia in the early 1660s, Massachusetts in 1705, North Carolina in 1715, South Carolina in 1717, Pennsylvania in 1726, and Georgia in 1750. 110 Hodes, Sex, Love, Race 74; Jordan, White over Black 139; Samuel Sewall, The Diary of Samuel Sewall Vol. 1, 1674-1708, Edited by M. Halsey Thomas (New York: Farrar, Straus and Giroux, 1973), 532. Toleration of interracial relationships survived longer in New England than it did in the Southern colonies. New England had a smaller population of Africans (in 1700, there were only one thousand Africans and their descendants living in New England) and the abse nce of a gender gap meant that fewer whites looked to Africans for sexual satisfaction. Samuel Sewall, a Massachusetts official, warned against a law on miscegenation because he feared it might lead to “murders and other abominations” committed against the children of interracial relations. In the Chesapeak e region, many white men took Africans as sexual partners because slave women were plentiful and vulnerable and a gender imbalance in the region left many men searching for a female partner. Colonial officials expanded the parameters of appropriate fornication for themselves, as they limited it for others.


63 judges disciplined men of privilege for their carnal misbehavior, female slaves were in such a compromised situation that they woul d seldom, if ever, bring their story to the courts’ attention. The judicial system was largely unintereste d in the sexual exploits of society’s upper crust so long as the episode s were kept silent and carried out behind closed doors. Elites’ authority went unchecked in the colonial era, as evidenced by their (usually) forced relations with African wo men. Power relationships between black and white communities were skewed toward en suring that white men wielded complete control. By imposing their will on African women, white men were asserting their own dominance. This form of miscegenation did not challenge the racial hierarchy, but rather strengthened it.111 Moreover, white men did not fear fornic ating with Africans because they could easily “reject its fruits.” Men absolved themselves from any guilt or responsibility for mulatto progeny by declaring th at the children were non-white. This meant that British men did not have to provide for these illicit children. Virginians, in particular, were so fearful of miscegenation and its social consequences that th ey were willing to alter the English precedent of children assuming th e condition of their fa ther. In 1662, the Virginia Assembly affirmed that progeny conceived by a British man and African woman was “bound or free only according to the condition of the mother.”112 Therefore, if a 111 Peter Force, Tracts and Other Papers Relating Principally to the Origin, Settlement, and Progress of the Colonies in North America, From Discovery of the Country to the Year 1776 Vol. 1 (Gloucester, Mass.: Peter Smith, 1963), 46; Hodes, Sex, Love, Race 113; Smith, ed., Sex and Sexuality in Early America 173. A chapter of this book concerns Jamaican slave ow ners’ sexuality, which was remarkably similar to the planters’ exploits in the Southern colonies. It claimed: “The key fact about Jamaica’s sexual culture was that it allowed extreme latitude to white men, who acted virtually how they pleased, without needing to fear that they would suffer any social consequen ce for their persistent philandering.” 112 Jordan, White over Black 178; Hodes, Sex, Love, Race 115; Robert Beverley, The History and Present State of Virginia Louis B. Wright, ed. (Chapel Hill: The Univer sity of North Carolina Press, 1947), 271. Beverley wrote: “Slaves are the Negroes, and thei r Posterity following the condition of the Mother, according to the Maxim, partus sequitur ventrem .”


64 white man and Negro woman conceived a child together, the offspring was deemed black and received the mother’s status. The flood of new Africans into the Southern colonies troubled Maryland officials as well. The ar rival of sexually vulne rable, black women on to the Maryland shores increased the like lihood of mulatto births. Accordingly, the colony passed an anti-miscegenation law in 1664 declaring that progeny stemming from interracial fornication were slaves.113 Maryland, just like its neighbor Virginia, hoped that relegating mulatto children to the shack les of slavery would preserve the racial hierarchy. Despite judges’ lax response to elite me n crossing the racial divide to find a sexual partner, there was not universal accep tance of this practice. As early as 1630, Virginia officials displayed their contempt fo r interracial fornicati on. For instance, Hugh Davis, a white Virginian, received a se vere whipping for “abusing himself” and dishonoring God by “defiling” his body dur ing intercourse with an African.114 Ten years later, courts forced a Virginia gentleman to perform penance in church for “getting a negroe woman with child.” The gentleman suffered a blow to his “Reputacon and Creditt,” which was an ephemeral condition that would be mitigated in time. Meanwhile, the black woman received a sound whipping for participating in sexual relations.115 The case was typical of judges’ reaction to interra cial fornication: priv ileged men generally avoided a costly fine and corporal punish ment, while African women suffered a sound 113 D’Emilio and Freedman, Intimate Matters 35-36. Maryland’s anti-miscegenation law also punished white women choosing to unite with an African by forcing them to serve their partner’s master. This was aimed at deterring white women from taking African bed mates. 114 Laslett, Oosterveen, and Smith, ed, Bastardy and Its Contemporary History 358. 115 Jordan, White over Black 78; See Orders and Wills Number 14, 1698-1710, p.37 and Order Book and Wills Number 12, 1683-1689, p.269 in Records of Northampton County as quoted in Pagan, Anne Orthowood’s Bastard 110. There is a strong possibility that the African woman did not consent to the affair. Ultimately, judges did not care if the relationship was forced or not, they punished the woman just the same.


65 whipping. The heavy-handed bastardy punishme nts used against non-white women is further proof of the racial (in addition to class and ge nder) inequities present in illegitimacy cases. Colonial society did not tolerate, under any circumstance, wo men who engaged in carnal affairs with non-whites. A 1681 Mary land act described unions between British women and black men as “always to the Satisf accion of theire Lasc ivious and Lustfull desires, and to disgrace not only of the English butt allso of many other Christian Nations.” A non-bonded, white woman coul d change from a reputable and moral individual to a whorish servant by having intercourse with a black man on just one occasion. Although interracial copulation between white women and non-white men occurred less frequently than did interc ourse between white men and non-white women, colonists’ fear of miscegen ation was not unfounded. The act occurred more often than generally acknowledged.116 A newspaper advertisement illustrates one lucid example. In 1759, a Maryland man publicly denounced his wi fe, Mary Skinner, for sharing intimate embraces with an African. The husband claimed that he had provided Mary with “all the Love and Tenderness which could possibly be shown by Man to a Woman.” Despite the husband’s affection for his wife, Mary took “in my [the husband] stead, her own Negro slave” with who she conceived a child with. Consequentl y, the action caused so much 116 For instance, quantitative data from three Virginia counties illustrate the fre quency of English women conceiving a mulatto child. Between 1690 and 1698, fourteen white women in Westmoreland County had a total of nineteen non-marital births; at least four of these children were mulatto. White mothers delivered an equal percentage of racially-mixed offspring in Norfolk County (courts punished thirteen women for conceiving a child out of wedlock). Similarly, in the years from 1702 to 1712, Lancaster County officials convicted twenty-six white women of bearing a total of thirty-two bastards. Exactly one-quarter of illicit carriages were mulatto progeny in Lancaster County. These statistics indicate that for every three white bastards there was one mulatto child born out of wedlock in late seventeenth-century Virginia. Though there is no evidence to confirm it, the sample counties in Virginia were fairly indicative of other Southern colonies. This data suggests that illegitimate mulatt oes were a vexing problem for colonial leaders. See Morgan, American Slavery, American Freedom 336.


66 humiliation and shame to the husband and his fa mily that the he forbade Mary to see him anymore.117 To limit the base act of in terracial fornication, white women endured forceful punishment and social opprobrium for conceiving a child out-of-wedlock with a black or mulatto man. Even non-bonded women suffere d harsher disciplinary action when sexually involved with non-whites. For exam ple, Virginia courts required a payment of 1,500 pounds sterling for women’s re prehensible act of crossing the color line. If the woman could not afford this hefty fine, c hurchwardens indentured her for a five-year period. Additionally, white Southern women copulating with non-white men received a public whipping administered by the county sheriff.118 The disciplinary measures for bearing racially-mixed children increased in se verity over the course of the seventeenth century. According to Virginia statutes, a ny white woman, regardless of class status, intermarrying with an African, mulatto, or Indi an “shall be banished forever.” Typically, lawmakers exiled female transgressors to the West Indies.119 North Carolina officials also reviled interracial fornication and were swift and stern in their discipline. While women who conceived a bastard child with a non-white colonist either performed an additional two years of indentured service (i f she was a servant) or paid a six pound fine to the churchwardens. Non-bonded women faced a similar punishment—they either 117 Browne, Archives of Maryland Vol. I, 533-34; Vol. VII, 204; Annapolis Maryland Gazette, April 22, 1773, October 12, 1769; Both anecdotes are quoted in Jordan, White over Black 79-80, 138-139. 118 Philip Alexander Bruce, Economic History of Virginia in the Seventeenth Century Vol. 2 (New York: Peter Smith, 1935), 111. 119 Hening, The Statutes at Large Vol. 3, 87. In 1705, the Virginia Assembly ended its policy of deportation because the colony was losing a valuable source of revenue and labor. The Assembly decided that a prison sentence of six months and a fine of ten pounds was a sufficient punishment for female violators, while the punitive measures remained in the colony’s best interest See Hening, The Statutes at Large Vol. 3, 453-54; Morgan, American Slavery, American Freedom 335.


67 satisfied a charge of six pounds or church o fficials sold them off for a period of two years.120 If white women’s punishment for interraci al fornication seemed excessive, their black partners paid an even higher price. According to the colonial mindset, the libidinous Negro was guilty of robbing his param our of her virtue and respectability. The woman left the relationship as a soiled dove, stripped of all decency. As guardians of female virginity and morality, white men failed to protect women from the sexual advances of Africans. Though colonial author ities could not prevent the illicit affairs altogether, they tried to limit them by harshly punishing black men. In 1688, a New Haven judge found Toney, an African, guilty of interracial relations with a white woman and sentenced him to twenty lashes. Toney’ s punishment was largely symbolic because he was the first Negro prosecuted for this transgression in the New Haven colony. Whereas white fornicators no longer faced co rporal punishment for unlawful intercourse by the end of the seventeenth century, T oney and subsequent blacks found New Haven judges excessively hostile and punitive. The im age of a black man tied to a whipping post with his body bare of clothes, as a man me rcilessly lays lashes upon his back, was very powerful. For the next two decades every Negro appearing in a New Haven court for carnality with a British woman received the sa me brutal sentence. This stood in stark contrast to judges’ silence when white men had their way with African women.121 While interracial relations elicited vo ciferous condemnation, courts ignored nonmarital intercourse between blacks. Judges we re unconcerned by the f act that all African children were illegitimate according to Eng lish standards, which required marriage to 120 Clark, ed., The State Records of North Carolina Vol. 23, 65. 121 Dayton, Women before the Bar: Gender, Law, and Society in Connecticut, 1639-1789 184-85.


68 legitimize children. Since any progeny born to a female slave inherited the mother’s bonded status, slave owners stood to profit from sexual relations between enslaved blacks. In return for the augmentation to hi s labor force, the master assumed financial responsibility for slave children. This was a very lucrative exch ange for the master because the slave’s productivity more th an compensated for the paltry sum of maintaining him or her. Courts ignored fo rnication between slaves because the master ensured the economic security of the mi nor, thereby making the judicial system irrelevant.122 While historians recognize this as further proof of the essentiality of economic considerations in bastardy cases, they fail to appreciate the larger implications. By not holding slaves accountable to the la w, judges permitted masters to exercise complete control over the lives of African children. Thus, lawm akers’ solution to bastardy among blacks served the interests of elites, buttresse d the social hierarchy, and expanded the institution of servitude (and after 1691, slav ery). The regulation of Negro illegitimacy had little to do with the economic solvency of the parishes and everything to do with the financial interests of the planters. In the trial of John Brewer and France s Driggus (located in the chapter’s introduction), judges of the Northampton Count y Court in Virginia refused to recognize an African’s testimony against her white master who impregnated her. Court officials in this case and other such trials were unsy mpathetic to the sexual victimization of nonwhites, as they ignored the carnal misbehav ior of white men. Frances Driggus’s black skin color not only precluded her from receiving a fair trial, but dir ectly resulted in her 122 Laslett, Oosterveen, and Smith, editors, Bastardy and Its Contemporary History 358; Rutman and Rutman, A Place in Time 176. See Philip Bruce, Economic History of Virginia 113. Bruce argued that an African woman still faced punishment even if her partner was black as well. He wrote, “If a negress gave birth to a bastard child who was entirely of her own color, proving that its father was of African blood, she was sent by her master to the county s eat to be chastised by the sheriff.”


69 facing stiff punitive measures. Meanwhile, Brewer evaded disciplinary action and left the courthouse with his reput ation intact. Any children resulting from copulation between a white man and an African woman were unlikely to cause much alarm because colonial officials labeled these offspring as slaves. Elite men not only circumvented punishment for interracial fornication, but they actually benefited from the illicit affair (the addition of a new slave laborer). Conversely, women, both white and black, paid dearly for their involvement in mixed re lationships. White women bearing mulatto children were responsible for creating a fr ee, mixed-race populat ion that directly challenged the white/non-white racial groupi ngs present in British America. Elites considered sexual liaisons between an African man and a white woman a grievous violation of colonial law and responded with swift and severe disc ipline to combat the unlawful relationships. Whether it was the i llicit carnality of women, servants, or nonwhites, privileged men felt that it was their duty to regulate sexuality. Had the parish’s financial solvency been the sole objective in the prosecution of bastardy, why did courts target impoverished individuals (non-whites and women) for having illegitimate, mulatto children while exonerating wealthy men? This chapter suggests an additional explanation for the courts’ actions—control. The white, elite ruling class used racial inequities to satisfy their ow n sexual cravings and to cons trict the acceptable bounds of sexuality for white women and all other non-whites.


70 Chapter Six Conclusion Bastardy was a contemptible condition in British America that threatened the virtue and spiritual salvation of the col onial populace and the financial solvency of parishes. During the early years of coloni zation, colonial offici als targeted bastard bearers because their actions were morally re prehensible and conflic ted with Protestant religious beliefs. As the number of illegitimate children increased, colonial authorities feared that the cost of raising bastar d offspring would bankrupt parishes and communities. Historians have considered monetary expenses to be the driving force behind bastardy prosecutions. Undoubtedly, illeg itimate children’s financial drain on the community was of prime con cern to most judges. Cour t records, however, reveal inconsistencies within the prosecution and punishment of bastardy, thereby indicating that there was more at work than economic factors alone. Therefore, this study explored how social factors figured into colonial authorities’ response to and treatment of colonial illegitimacy. Authorities weaved gender, cla ss, and racial inequities into the regulation of contemptuous carriages. Coloni al officials crafted bastar dy laws not only to protect against charges to the communit y, but also for their own bene fit. Elite men relied upon their status to attain certain privileges, incl uding greater latitude in carnal matters, while excluding the remainder of society from these sa me rights. Men of wealth and influence circumvented bastardy laws, as women, indentured servan ts, and non-whites seldom


71 dodged legal charges because of their gender, cl ass, and race respectiv ely. For instance, Samuel Appleton eluded prosecution for impregnating Priscilla Willson, despite witnesses attesting to his guilt. Meanwhile Willson received stiff penalties for her involvement in the affair, even though the trial record suggests that Appleton forced himself upon her. Moreover, social class distinctions increased the vulnerability of servants and laborers to bast ardy charges. Anne Orthow ood, a young indentured servant, who became pregnant with twins during a non-ma rital affair with a neighbor, personifies the social distinctions that permeated th e British colonies. Orthowood was solely responsible for tending to the couple’s offspr ing because her partner, who was from a distinguished family, could not marry a servan t. Racial antagonisms also increased the susceptibility of non-whites and white wome n who fornicated with African men to bastardy charges. Virginia officials were so repulsed by white women’s decision to copulate with African men that authorities ac tually banished these licentious women from British America. Across colonial America, court officials targeted women, laborers, and non-whites for their sexual contraventions, while they generally excused promiscuous behavior among wealthy and influential men.123 Elites’ use of status to protect their social position is not a new revelation; however, it is new to the study of colonial illegitimacy. This thesis examined bastardy through a cultural paradigm, resu lting in a fresh and innovativ e way of re-conceptualizing a topic that is usually dism issed as purely economic (and in itially religious). Social dynamics do not replace monetary concerns as co lonial officials’ impetus for prosecuting illegitimacy. Instead, the issues overla pped and thrived simultaneously. While 123 Thresher, ed., Records and Files of the Quarterly Court of Essex County, Massachusetts Vol. 9, 64; Smith, ed., Sex and Sexuality in Early America 1, 89; Pagan, Anne Orthowood’s Bastard 3-6, 150.


72 privileged and wealthy men wrote, amended, and enforced bastardy laws to combat a costly problem of non-marital births, they also used these statutes to unfairly target and punish women, laborers, and non-whites fo r their sexual transgressions.


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