Anne Orthwood's Bastard: Sex and Law in Early Virginia

by John Ruston Pagan

In 1663, an indentured servant, Anne Orthwood, was impregnated with twins in a tavern in Northampton County, Virginia. Orthwood died soon after giving birth; one of the twins, Jasper, survived. Orthwood's illegitimate pregnancy sparked four related cases that came before the Northampton magistrates -- who coincidentally held court in the same tavern -- between 1664 and 1686. These interrelated cases and the decisions rendered in them are notable for the ways in which the Virginia colonists modified English common law traditions and began to create their own, as well as what they reveal about cultural and economic values in an Eastern shore community. Through these cases, the very reasons legal systems are created are revealed, namely, the maintenance of social order, the protection of property interests, the protection of personal reputation, and personal liberty. Through Jasper Orthwood's life, the treatment of the poor in small communities is set in sharp relief.

Anne Orthwood's Bastard was the winner of the 2003 Prize in Atlantic History, American Historical Association.

Genres: History, American History, Nonfiction, Crime, Law

232 pages, Paperback

First published October 31, 2002

Reviews

[Artie · Rating 4 out of 5]

Read for an internship I’m doing with my university’s history department! I really strong balance of readability with good historical research. A lot of hot gossip in this one.

It does get bogged down in some boring legal proceedings but it does serve the greater book. I think the author introduces too many “characters” as well, it’s difficult to learn a new persons background in each chapter.

(My reading challenge is so dry right now because of school but these historical books are going to push me to succeed!)

[Allie Gallagher · Rating 3 out of 5]

I read this for my women’s history class. Anne’s story is fascinating and even though you don’t know her or even that much about her it’s easy to feel really bad for her. Historians love to tell you exactly what everyone who vaguely crossed paths with the person of interest owned and did and knew lol.

[Abby Hollister]

Nonfiction text:
Anne Orthwood’s Bastard: Sex and Law in Early Virginia by John Ruston Pagan
1. I found many of the facts presented in this book very interesting. I thought it was interesting how the laws morphed from equal punishment to men and women in cases of fornication and illegitimate children, into mainly reserving punishment for the women only. In the beginning, both sexes would be publicly humiliated and lashed, and the male would have to compensate the masters of the women for their maternal break from work, and the cost of the child. Then it turned into women being scorned for their sin while the men usually got off pretty easily.
2. This novel really changed the way I view colonial society. I realize now how many colonists were merely interested in rising to the top and how insignificant family bonds were. Illegitimacy was quite common so many grew up not knowing where they came from or what their genealogical roots were. Widows and Widowers wasted no time in finding new spouses, usually trying to marry higher up and just added on to previous families.
3. The author of this book gives proper consideration to all sides of the issue. She wrote chapters about all people involved in the court cases, including the accused, the petitioners, the judges, the jury members, etc. She thoroughly went through each background and described where they were coming from regarding their decisions and what they would gain or lose depending on the outcome of the verdict.
4. I would recommend this book to anyone interested in law and the colonial time period. It had very interesting detail and facts that made the era come alive and seem more real than learning about it out of a textbook. However there were some areas that seemed repetitive and dry, so it was a bit of a slow read.

[Wyatt Anderson · Rating 4 out of 5]

In Anne Orthwood’s Bastard, John Pagan thoroughly researched how an illegitimate birth
in 1667 reveals a multitude of information about colonial Virginia’s legal, social and family
structures (p. 3). He tells Anne Orthwood’s life story in which he mentions that Anne was a
young servant whose illegitimate child became the center of lawsuits in 1667 (p. 11). As a matter
of fact, Anne Orthwood’s bastard is the cause of four different major trials. One of which was
enacted by her illegitimate son Jasper Orthwood (p. 131). Pagan did a wonderful job making the
story entertaining and to read it felt like reding juicy newspaper story from that period. The story
had many references to historic records which are great (pp. 151-193). While reading it there are
a lot of different aspects the reader can take note of related to family history research. Pagan
shows how law, sexuality, and kinship shaped ordinary people’s lives, and this helps family
historians understand the context of early American ancestors (p. 147).

Anne Orthwood was an indentured servant from Bristol, England (p. 11). She came to the
Virginia Colony in hopes of a bright future and hoped for even marriage. She especially fancied
John Kendall who was the nephew of William Kendall, her second master (a successful
plantation owner and government official who built his life from nothing) [p.27, 103]. During
her service to William Anne was exploited by John and the fornicated a few times at a tavern.
She hoped John would eventually marry her. As a result, Anne became pregnant with twins, and
unfortunately her contract was sold two more times before it was discovered that she was
pregnant. She later gave birth to both twins but only Jasper survived (p. 131). This story tells
those that study family history a few things. It shows how indentured servants were vulnerable to
exploitation. Many early Americans came under similar conditions, so genealogists should
examine shipping lists, servant contracts, and county records.

As a result of her pregnancy Anne was interrogated by the midwife during her delivery of
her children where it came to light that John Kendall was the father (p. 81). Colonial law
criminalized fornication, and responsibility was placed on men for illegitimate children (p. 103,
117). Women however bore the brunt of the social stigma, and bastardy cases were frequent.
Some critical sources for genealogists tracing lines where fathers were absent or unnamed are
bastardy bonds, parish registers, and court records.

In indentured servitude pregnant female servants were vulnerable, their terms of service
were extended and their masters often sued for compensation of lost labor (p. 27). In many ways
this discouraged women from seeking deserved justice and increased their dependency on their
masters (p. 11). Had Anne not died in childbirth her term of service would have indeed been
extended. If an ancestor married late or acquired land/property later than peers, it may reflect
extended indenture due to pregnancy, illness, or disputes recorded in courts.

Jasper Orthwood, the son of Anne, became the subject of custody disputes (p. 131).
Because he was an illegitimate child he could not inherit anything from the Kendall family
despite his biological father John being the nephew of a wealthy plantation owner (p. 103, 131).
This was because the courts upheld strict rules of legitimacy. When tracing wills illegitimate,
children often disappear from records, instead you can find records of these children through
guardianship record or apprenticeship records.

Court testimony from this incident reveals that neighbors gossiped and knew about
Anne’s pregnancy, showing how small communities monitored morality (p. 11, 81). Word
spreads around fast and in the small communities of the time gossip likely spread fast. The
court’s judgment was not only legal but also reinforced community standards. This illustrates
how community standing shaped records. Looking at witnesses and neighbors in documents can
help genealogists map social networks around ancestors.

In conclusion, Pagan explains how Anne Orthwood’s case matters: it connects law,
family, and society in a way that explains both individual experience and broader colonial
structures. It was extremely unfair for women in the era of Anne Orthwood to get proper
representation and to avoid being exploited by those who would seek to take advantage of them.
Also, Jasper got screwed out of an inheritance because of the sins of his father and mother,
which wasn’t fair at all. From reading this book I feel it encourages the readers and even family
historians to see genealogy not only as lineage but also as reconstructing the social and legal
context of ancestors' lives.

[Jan · Rating 3 out of 5]

John Ruston Pagan uses the Eastern Shore archives to write a case study illustrating how and why the early Virginia colonists changed traditional English law to suit the local circumstances. Contrary to what a reader might believe from the subtitle - Sex and Law in Early Virginia – the book is only partially about how the sex act (fornication) was treated under colonial criminal law.

Pagan’s thesis is that colonial law diverged from English law because the colonial justices interpreted and applied civil and criminal law in their own economic, political, and social interests. Underlying this thesis is the assumption that the justices should have been disinterested parties instead of responding to their own situation, and that of their neighbors, friends and family. Pagan, in fact, goes to great lengths to trace the intricate family, friendship, business, and religious ties pressuring the magistrates to rule as they did. It was not so much that the justices acted in their own interests, but that they acted in the best interest of their communities.

Pagan makes his argument by describing the circumstances and outcomes of the four civil and criminal cases brought because Anne Orthwood, an indentured servant, and John Kendall, nephew of a prominent planter and county justice, had sex in the local tavern. According to Pagan, the primary reason for the divergence between English and colonial law was economic. The labor-intensive tobacco-based economy required changes in laws governing how the labor contracts of indentured servant were bought and sold. For example, in England, neither employer nor employee could unilaterally change a labor contract. Yet in the colonies, Anne’s labor contract was sold three times without her consent. Pagan concludes that colonial law diverged from English law to “maintain a free-flowing labor market, unimpeded by the troublesome matter of worker preferences.”

Because those contracts could be bought and sold, cases like Waters v. Bishopp were adjudicated by the county courts. Pagan uses Waters v. Bishop to tell the fascinating story of yet another divergence from English law: colonial jurisprudence abandoned caveat emptor (buyer beware) in favor of caveat venditor (seller beware). (pp. 71-78) Jacob Bishopp, Anne Orthwood’s second owner, told William Waters, a prospective buyer, that he believed Anne was “a Maid and aileth nothing to the best of my knowledge.” (p. 74) In fact, Anne was pregnant with twins. After Anne died as a result of complications from the birth, Waters sued Bishopp for the return of his down payment and cancellation of his further debt and won. Pagan claims that magistrates perceived themselves as consumers of labor, and they wanted a measure of protection from unscrupulous sellers who sold servants from newly arrived ships. (p. 77) But caveat venditor didn’t apply only to indentured servants. It applied to any transaction involving the scarce resources of the colonists. The magistrates were acting in the interests of community members by protecting them from the consequences of any seller misrepresenting his wares.

In Ex Parte Kendell, John Kendall tried to avoid both a civil verdict finding him responsible for supporting his bastard, and potential charge for the crime of fornication. He lost the civil case, Pagan argues, because the JPs invented the notion of irrebuttable presumption of paternity. That is, if a woman accused a particular man of fathering her child, that man was automatically deemed responsible for supporting the child. Pagan claims that the Justices were sensitive to the perceptions and needs of the taxpayers who would have to support the bastard child if there was no paternity finding. Again, the justices were acting to protect the interests and scarce resources of the citizens in their communities.

Because of the narrative structure of the text, it is not easy to understand that “fathering a bastard” is a civil court problem, and “fornication” is a much more serious criminal charge. The punishment for fathering a bastard is basically a fine. On the other hand, the punishment for fornication is public flogging or a fine, and being “deemed ‘incapable of being a wittnes between partie and partie, and of bearing any publique office in the government of this collony.’”) (p. 35) In Rex v Kendall, John Kendall was required to defend himself from a criminal fornication charge. This case illustrates that justices did act in their own self-interest when they changed the rules of evidence pertaining to fornication cases. The policy of “zero tolerance for sexual immorality” lost out to the pressures of the honor culture and the need to protect the political aspirations of many young men with relatives and mentors among the JPs.

In Orthwood v Warren, Anne’s bastard son Jasper sued to be released from his indenture and won. The justices allowed a 1672 Virginia law that lowered the age of emancipation to 21 to trump a 1601 English Poor law that set the age of emancipation at 24. Pagan argues that by then, all the good land was taken, hence the magistrates weren’t worried about any economic, social, or political competition from a servant freed three years early. He also argues that Jasper won because he got an experienced lawyer, and his opponent didn’t. The point here is not so much that the justices acted in their own interest, but that the process of bringing criminal and civil suits was changing. The precedents set by local law cases over time caused Colonial law to diverge more and more from English law. Any litigant had a better chance of winning his case if he hired a knowledgeable and experienced lawyer.

Pagan does not seem to like the magistrates very much. He refers to them as “parvenus,” (p. 94) “manqués,” (p. 62), “arrivistes,” and “grandees” (p.131) leaving the reader with the impression Pagan finds their efforts to gain wealth and social status malign, and their judicial decisions suspect. Similarly, Pagan’s text is peppered with details that he can’t possibly know. He asserts what Anne is thinking and feeling: “Her image of the New World came mostly from promoter’s propaganda, which she found irresistible.” He describes what she thought of her old life, and how she perceived what her new life would be like. (p16)

Pagan does not limit himself to describing only Anne’s motives and emotions. He tells us that William Kendall, John Kendall’s uncle “parted with Anne after growing increasingly concerned over her budding romance with his kinsman John, a relationship the colonel considered altogether unsuitable.” (p.35) He claims that the justices “worried constantly about maintaining their newly minted status, feeling insecure in ways unknown to well-born local leaders in England.” (p. 51) While these types of statements would be appropriate for character development in a novel, they are distracting and out of place in a historical work.

Pagan’s case study of the lawsuits brought because of Anne Orthwood’s bastard does support his thesis that Colonial law diverged from its English roots in response to the particular economic, social and political needs of the Virginia colony. Yet that divergence was not just the result of the magistrates acting in their own interests. Even Pagan concludes: “This story reminds us that seventeenth-century jurisprudence was very much a community affair.” (p. 149) Pagan’s book is a compelling story of how the intricate family, religious, economic, and political, issues influenced the decisions of the magistrates and brought about the divergence of English and Colonial law.

[Monica · Rating 4 out of 5]

I have spent some time on the Eastern Shore. I have no idea why this volume was in my TBR pile, but it has been there for years. I wrote no research papers on anything in here, and I didn't go to law school, so...

But it is actually a pretty cool little book about the establishment and actual workings of law in Northhampton County VA on the Eastern Shore from the early 1600s until late 1600s. Using the son of Anne Orthwood and four different court cases that came about due to this moral sin was a great way to showcase how Virginia law ended up differing from English law because of culture, and the necessities required in that society, and the lack of inherited authority meaning a greater need for accommodation that kept the community consent to be governed.

[Katherine Rampley · Rating 4 out of 5]

It took me a minute to get into, but Anne Orthwood's Bastard ended up being a fascinating little microhistory. Pagan has a habit of making assumptions about peoples' motivations (especially those of women) that I don't necessarily agree with or think is even backed up by much data; still, nothing wais way too egregious and those assumptions do help move the narrative along, so I forgive them for the most part. Pagan does a particularly good job of covering how and why attitudes towards men, women, and sex shifted at different times throughout the 17th century in England and America.

I would recommend this for anyone interested in colonial American law or gender studies.

[Cadence · Rating 1 out of 5]

kind of a hard read, can get boring and more than half the book is just the court cases that have been recorded.

men really hate women bro. also pretty sure the main case of Anne Orthwood must have been biased as they’re only speculating on what must have happened. she definitely could have been SA’d yet they think it was just so she could get that bag like honey no

[sheereen · Rating 3 out of 5]

read for a great class i took this semester.. i enjoyed the authors use of narrative & law together, but ultimately wasn’t that memorable

[Suzette · Rating 5 out of 5]

First line: "Anne Orthwood and John Kendall first had sex on Saturday night, November 28, 1663, at John Webb's Inn near the site of modern day Cheriton in Northampton County, on Virginia's Eastern Shore." BOOM! Fascinating right out of the gate! It appealed to my prurient, legal, and early American historical interests all at once. The author looks at four court cases that arose from their having a weekend of sex:(1) Waters v. Bishopp, in which Anne's indentured servitude was sold to Waters before her pregnancy was obvious and he sued her previous master, Bishopp, because she was pregnant and she couldn't work as hard as he was led to believe; (2) Ex Parte Kendall, involving John's liability for child support; (3) Rex v. Kendall, a criminal fornication charge lodged against John by the Northampton County grand jury; and (4) Orthwood v. Warren, a case filed a generation later when Anne's bastard child sued for release from his indentured servitude. I love the way the author finds the silver lining in the whole operatic mess: "Their affair produced embarrassment for him and death for her. For us, however, the well-documented consequences of their misadventure yield much that is valuable." Ah, if only all of us could see the results of our actions 350 years later and learn from our mistakes. Poor Anne Orthwood. Men are cads.

[Anya · Rating 4 out of 5]

This book has an excellent pace and structure. It builds the world of seventeenth century Virgina well and constructs the narrative of Anne Orthwood in an informative and compelling way.

[Melissa · Rating 3 out of 5]

This book is quite boring to read, as you might expect of what's essentially a legal scholar's textbook. On that basis, I'd give it 3 stars. However, the subject is interesting, and I learned a lot about how laws changed over time and the role that social norms played in these laws.

Not long after I read this book, I read Bringing Down the Colonel: A Sex Scandal of the Gilded Age, and the "Powerless" Woman Who Took on Washington. That book takes into consideration the legality and social norms around an out-of-wedlock relationship, and was actually an interesting continuation of the themes of this book (it covers a later point in history)-and a much more engaging read.

[Amy · Rating 5 out of 5]

I had to read this for school, and when I saw this at the bookstore my heart sank. Like really? It looked like the most boring thing ever- Who wants to read about "sex and law in early Virginia?" But I read it (because I don't want to fail), and suprisingly I really enjoyed it. This book really changed my viewpoint of early Virginia and it was extremely informative. The best part was that it didn't even feel like a chore to read- its a collection of related stories about different people, and the information was fused into the stories. I would definitely recommend this book to someone even if they're not taking the class "Sex, Race, and Violence in the Chesapeake Bay." :D

[Stephanie · Rating 2 out of 5]

I will be honest. I had to read this book for class. I have absolutely no interest in 17th century Virginian law. However, since I had to read a book on this topic, I am glad it was this one. I sped through it, and the author made it as clear as possible. I would say this book is a must for legal historians.

[Vonze · Rating 4 out of 5]

Read this for my U.S. Women's History class. Overall, it was very interesting and I enjoyed learning more about early Virginia. However, the book introduces more people and legal cases than necessary. I wish it had focused more on the Orthwood/Kendell families and their affairs and less on supporting characters/people in their community. Good book if your interested in law.

[Leah · Rating 4 out of 5]

An interesting read in which Pagan presents the intersection between sexuality, labor politics, gender, and the law. The construction of sexual transgression rests squarely on the economics of a small settlement and a complex relationship with Britain that is used both for justification and shows clear divergence between Britain and the US colonies. I enjoyed this quick and illuminating read.

[Pennyroyal · Rating 5 out of 5]

Pagan uses many facts to give us a window to class and sexual treatment in colonial America and England. I thoroughly enjoyed the book and had a great time discussing the what ifs that couldn't be answered by the book.

[Alex · Rating 3 out of 5]

I read this for a survey course of U.S. history. Most of my class was bored with it... however, I thought it was an interesting history. I wouldn't read it again though.

[Celeste Hollerud · Rating 3 out of 5]

Interesting study of the role of morality in early colonial law. Also had to read for Legal History.