Sex, law, and society in late imperial China Book

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.