Anne Orthwood's bastard trial
Anne Orthwood's bastard trial took place in 1663 in the relatively new royal Colony of Virginia. Anne Orthwood was a 24 year old maidservant when she became pregnant with her illegitimate twins. The father was the nephew of a powerful Virginian politician who felt that Anne's pregnancy would tarnish his family’s reputation. Unfortunately for Anne Orthwood she died during childbirth leaving behind her only surviving son, Jasper, with no one willing to claim him as their own. The four different cases that stem from the original trial of Anne Orhtwood give a glimpse into the world of America in the seventeenth century as well as highlight the reasons legal systems are created in the first place.
Anne Orthwood was a 24 year old indentured servant who immigrated to Virginia from her home in Bristol, England about one year previous to meeting John Kendall. John Kendall was a bachelor in his early twenties from Norfolk, England. He lived with his uncle Colonel William Kendall, who was one of the most powerful politicians in Virginia at the time. It was on Colonel Kendall’s Newport House Plantation that the two had met. Colonel Kendall held Anne’s indenture so she worked as a servant woman in the plantation house while John helped his uncle run the plantation. Colonel Kendall found out about Anne and John’s clandestine relationship and grew worried about what would happen if someone else were to discover it as well. He thus sold his contractual rights to her services to one of his fellow Virginia plantation owners Jacob Bishop. Anne and John were reunited on the 28th of November 1663. Northhampton County did not have a proper court house until 1665, so when official matters had to be discussed the councils would meet at Webbs Inn to hold their proceedings. Anne and John conceived twin boys during the weekend that the court proceedings took place, but unfortunately for Anne she found herself without the aid of her illicit lover. In order to shield herself from public shame and punishment Anne hid her condition as long as was possible before her pregnancy became known however her indenture was sold yet again to Lieutenant Colonel William Water, a justice of the peace and plantation owner. When Anne’s condition became known she was arrested and interrogated. Anne for reasons that were never explained did not want to divulge the father’s name. The county kept her in jail where she eventually went into child birth, during which they denied her the aid of a midwife until she revealed the father’s name. After intense pain she finally named John Kendall as the twin’s father. Unfortunately Anne and one of her twin sons died during childbirth. Four distinct cases stemmed from this original crime of fornication the first was Waters v. Bishop a case where Waters sued Bishop for selling him damaged goods (Anne’s pregnancy left her unable to work thus making her indenture useless), the second was Ex Parte Kendall was a civil liability for child support case against John Kendall, third was Rex v. Kendall is a criminal fornication charge lodged against John by the Northhampton County Grand Jury, and the third and final case was Orthwood v. Warren where Jasper Orthwood at the age of 21 sued his then master John Warren for his freedom after Warren initially refused.
Waters v. Bishop
When Jacob Bishop sold Anne Orthwood’s indenture to Lieutenant Colonel William Waters he had assured Waters that as far as he knew Anne was in perfect health and still a virgin. At some point between April and June 1664 Waters became aware of Anne’s condition; at which point he tried to cancel the sale and recover his down payment (the specific amount of money was never specified). Bishop refused to take Anne back and return Waters down payment stating that the contract was valid and Waters had no legal obligation to support her. Waters believed that the contract was voidable because Bishop had provided a false description of Anne’s physical condition since it was not possible for Anne to have not been pregnant at the time that Waters bought her indenture. In English law (which was generally used in the colonies at that time) if a servant became pregnant before a master hired her he was able to fire her from his household but if she had conceived the child during her time in that masters house then the master must continue to provide the necessities of life and is not permitted to turn her out. So in order to “fix” his bad purchase of Anne’s indenture he had to convince a panel of five judges (his colleagues as he was also a justice of the peace) that he was not obligated to care for her as she did not become pregnant during her stay in his home and sue Bishop for the return for his down payment. Before the case could go to trial Bishop asked for a stay of the trial as he had business out of town he needed to attend to. During this time he was away Anne gave birth to Jasper Orthwood and subsequently died due to complications. Thus there was no longer any need for Waters to put forth to the panel of judges his request to turn out Anne from his home. He still however sued Bishop for his down payment and the costs for the suet which the county court ruled in his favor saying it was a breach of contract when Bishop misdescribed the condition of his maid servant. It was ruled that Bishop must pay back Waters full down payment and his suet costs.
Ex Parte Kendall
This was a civil liability charge brought against John Kendall. It came before the Northampton County Court on August 29, 1664. The magistrate concluded that the case had two distinct issues; one being whether or not John was liable for Jasper’s support and the other was a moral question of whether or not John had actually had extramarital sex with Anne. The courts ruled that even though the timing of Anne’s pregnancy indicated that John was not in fact Jasper’s biological father, he was still responsible for providing for Jasper until the time that he could be bound into servitude. When deciding his moral guilt, however, the magistrate found John to be innocent of having extramarital sex with Anne. When asked about his ruling, the magistrate said he ruled in John’s best future interests in order to salvage his reputation. However, many believe that the magistrate ruled John responsible financially for Jasper in order to keep the financial burden of his well-being from being pushed on the tax payers. When a child was abandoned for any reason in the seventeenth century, the colonies were considered chargeable to the parish. This meant that the child would have to be clothed, fed, and sheltered at the public’s expense.
Rex v. Kendall
This was a criminal fornication charge brought against Kendall. The decision was already determined by the Ex Parte Kendall civil liability case, but they still had the formality of a trial. Kendall was found not guilty on the basis that from the date that Anne conceived to the day she gave birth to her twins was only seven months. In the seventeenth century, there was very little information that was widely known about twins and the unique circumstances that come with them; like the fact that most twins are born prematurely. The fact that Anne had only revealed the identity of the father under interrogation during labor, did not help her story's credibility.
Orthwood v. Warren
Anne’s son Jasper had been bound into servitude as an infinite by the parish. John Kendall did not take Jasper into his own home, but instead left him to the parish and made payments for the costs associated with his care. When Jasper turned 21, he requested to be released from his servitude. His then master John Warren, another wealthy landowner, refused his request citing the English Poor Law of 1601 which stated churchwardens may bind male bastards into servitude until the age of 24. In response to his master’s refusal, Jasper hired a lawyer and sued Warren for his freedom in the Northampton County Court. Jasper's defense relied on the 1672 act of the Virginia Assembly which stated male bastards could only be bound until the age of 21. This raised the question not only of whether or not Jasper was eligible to be freed, but also what laws were to be held supreme in the colonies; English laws of a government thousands of miles away or laws made by colony assemblies where they could be fit to the circumstances. In this particular case, the colony law ruled supreme and Jasper walked out of the courtroom a free man. This was not unusual, for more and more colonies were finding it hard to rule according to English law.
The Anne Orthwood's bastard case and the resulting four trials give a glimpse into the function of law in the seventeenth-century colonies. This time in American history was a period of transition. There was a unique mix of English, colony, and unwritten laws governing the people. Which laws the court would choose, rule by, or ignore was based on how the people in the community felt about the case begin prosecuted. The law maintained order, protected and improved property, and safeguarded reputations much as it still does today. However, unlike today's court system, the practice and distribution of law was more of a community affair, which meant it was easier to manipulate the law for one's own personal gain. Cases like Anne and Jasper's were fairly common in the seventeenth century; what was uncommon was the variety of cases springing from them. Property suet, acts of criminal conduct, and a paternity case giving the observer a clear view on how the court acted with each different case. With criminal conduct cases, the court acted upon moral justification rather than law. In paternity cases, they acted upon the community's best financial interests, finding a responsible part to take the burden off themselves. In the paternity case, they let John Kendall's uncle persuade them into ruling him not guilty of being the boy's father in order to save his future prospects. The ability for the law to be manipulated is why it stopped being a community affair.It was too easily manipulated when everyone had access to the moving parts of the court system (the judges, the jury, etc.).
- Pagan, John (2003). Anne Orthwood's Bastard Sex and Law in Early Virginia. Oxford University Press.
- Smith, Merril D. Women's Roles in Seventeenth-century America. Westport, CT: Greenwood, 2008. Print