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Punishment for Bastardy in Early Seventeenth-Century England

Published online by Cambridge University Press:  11 July 2014

Walter J. King
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The first half of the seventeenth century in England witnessed the growing strength of Puritanism and even a “Puritan Revolution.” Frequently it is assumed that in the intensely religious atmosphere of that period local, county, and national authorities imprisoned offenders in order to protect “the inferior sort of people,” those of low rank, from bad example, and to avoid incurring God's wrath for allowing sinners to go unpunished. After all, did not officials incarcerate numerous adulterers, fornicators, and unwed parents? A glance through the documents, however, fosters the conclusion that it was an economic and not moral basis upon which many committals were made. This is suggested by the number of debtors incarcerated and the number of persons found innocent of alleged offenses, yet imprisoned for lack of sureties. Ralph Kershaw and his wife from Audenshaw near Manchester, for example, were found innocent of stealing £9 14s. in cash, but both were jailed until they paid 12s. to the clerk of the peace for their fees. A careful review of seventeenth-century legal records refines first impressions, and suggests that authorities imprisoned women for moral reasons and men for economic considerations. Probably everyone in the seventeenth century would have agreed with the justices who committed to the house of correction in Preston (Lanes.) Alice Robinson of Manchester for having four bastards “by maryed men and others,” and Thomas Greenhalgh of Atherton for fathering seven bastards. But they would not have agreed on whether the male and female were equally guilty or whether the unwed father and mother should be punished similarly.

Type
Research Article
Information
Albion , Volume 10 , Issue 2 , Summer 1978 , pp. 130 - 151
Copyright
Copyright © North American Conference on British Studies 1978

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References

1 Lancashire Record Office [hereafter L.R.O.], Quarter Sessions Rolls [hereafter QSR7]26, Manchester, Easter 1629.

2 L.R.O.: QSR/34, Manchester, Easter 1637; and QSR/17, Wigan, Michaelmas 1620.

3 L.R.O., DDKe/2/14/2.

4 Earwaker, J. P., ed., The Constables' Accounts of the Manor of Manchester from the Year 1612 to the Year 1647, and from the Year 1743 to the Year 1776. 3 vols. (Manchester, 1891 and 1892)Google Scholar, All computations from these accounts are mine.

5 For example, L.R.O.: QSR/4, Ormskirk, Easter 1601 and Midsummer 1601; QSR/5, Ormskirk, Easter 1602 and Midsummer 1602; QSR/6, Ormskirk, Easter 1603; and QSR/7, Manchester, Michaelmas 1604.

6 For example, L.R.O., QSR/18, Ormskirk, Midsummer 1621.

7 For example, L.R.O., QSR/14, Ormskirk, Easter 1617 and Midsummer 1617.

8 For example, L.R.O.: QSR/15, Lancaster, Michaelmas 1618 and QSR/25, Ormskirk, Easter 1628.

9 L.R.O., QSR/27, Ormskirk, Easter 1630. Also see L.R.O.: QSR/44, Ormskirk, Easter 1650, and QSR/52, Preston, Epiphany 1658/59.

10 L.R.O.: DDHo for 1634 and 1636; QSR/19, Ormskirk, Easter 1622; QSB/1/154/52, Ormskirk, Midsummer 1635.

11 Rev.Gibson, Thomas E., Lydiate Hall and its Association in two parts: Antiquarian and Religious (London, 1876), p. 264Google Scholar.

12 The difference is significant at the .06 level. Of the 81 unwed fathers punished by Lancashire JPs during the two-year periods of 1601-02, 1608-09, 1617-18, 1628-29, 1637-38, 1647-48, and 1657-58, the socioeconomic status is recorded for only 49, 22 of whom were husbandmen. Data came from the Lancashire Quarter Sessions Rolls [hereafter QSR] and Recognizances [hereafter QSB].

13 Data came from Lancashire for the years mentioned in the previous footnote; from Somerset for 1608-17, 1625-29, 1647-48, and 1654-59; from Warwickshire for 1625-60; and from Hertfordshire for 1619-60. The years in the Lancashire and Somerset samples were chosen on the basis of the completeness or near completeness of their records. For Lancashire, see L.R.O., QSR and QSB. For Somerset: Rev.Bates, E. H., ed., Quarter Sessions Records for the County of Somerset, Vol. 1, James I, 1607-1625; Vol. 2, Charles I, 1625-1639; and Vol. 3, Commonwealth, 1646-1660, Somerset Record Society, Vols. 23, 24, and 28 (London, 1907, 1908, and 1912)Google Scholar. For Warwickshire: Ratcliff, S. C. and Johnson, H. C., eds., Warwick County Records, Volume I, Quarter Sessions Order Book, Easter, 1625, to Trinity, 1637; Volume II, Michaelmas, 1637, to Epiphany, 1650; Volume III, Easter, 1650, to Epiphany, 1657; Volume IV, Easter, 1657, to Epiphany, 1665; and Volume VI, Quarter Sessions Indictment Book, Easter, 1631, to Epiphany, 1674 (Warwick, 1635–1641)Google Scholar. For Hertfordshire: Le Hardy, William, ed., Calendar to the Sessions Books and Sessions Minute Books and Other Sessions Records of the County of Hertford, 1619 to 1657 and … 1658 to 1700, Vols. 5 and 6 (Hertford, 1928 and 1930)Google Scholar.

14 Ashby, A. W., “One Hundred Years of Poor Law Administration in a Warwickshire Village,” in Oxford Studies in Social and Legal History, ed. Vinogradoff, Paul, Vol. 3 (Oxford, 1912), p. 86Google Scholar.

15 Axon, Ernest, ed., Manchester Sessions, Notes of Proceedings before Oswald Mosley (1616-1630), Nicholas Mosley (1661-1672), and Sir Oswald Mosley (1734-1739), and Other Magistrates, Vol. I, 1616-1622/23, Record Society for Lancashire and Cheshire, Vol. 42 (London, 1901), p. 53Google Scholar.

16 SirCoke, Edward, The Second Part of the Institutes of the Laws of England, Vol. 2 (London, 1797), p. 733Google Scholar.

17 Hair, Paul, ed., Before the Bawdy Court: Selections from church court and other records relating to the correction of moral offences in England, Scotland and New England, 1300-1800 (London, 1972), p. 22 and note 1Google Scholar. For a fourteenth-century conflict between Church and State over jurisdiction in bastardy cases, see Helmholz, R. H., “Bastardy Litigation in Medieval England,” The American Journal of Legal History, Vol. 13, No. 4 (Oct. 1969): 360–83CrossRefGoogle Scholar.

18 SirPollock, F. and Maitland, F. W., The History of English Law Before the Time of Edward I (2nd ed; Cambridge, 1968), I: 130, and II: 543Google Scholar; and Hair, , Before the Bawdy Court …, pp. 22–23 and 232–38Google Scholar. Also see Canon 109 of 1604 quoted in Hill, C., Society and Puritanism in Pre-Revolutionary England (2nd ed; New York, 1967), pp. 301–02Google Scholar.

19 Ashcombe, Lord, ed., “A Charge Given by Hugh Hare, esq. J. P., at the General Quarter Sessions for the County of Surrey, Holden at Dorking, 5th April, 1692,” Surrey Archaeological Society, Vol. 12 (London, 1895), p. 127Google Scholar.

20 See, for example, the case of Wright, Elizabeth and Bayes, Thomas in Ratcliff, and Johnson, , Warwick County Records …, Vol. 2, pp. 72–73, 77, and 112Google Scholar.

21 Axon, Manchester Sessions …, passim.

22 Ecclesiastics handed down 72 judgments to the 412 offenders: 2 attachments, 40 purgations, and 30 punishments. EDV 1/12b, 13, 14, 15, 17, 19, 21, 22, 23, 24, and 26 at the Cheshire Record Office; and V 1629-30/CB and V. 1632/33 CB. 2B (old references: R. VI. A. 22 and 23) at the Borthwick Institute for Historical Research, York. Offenders resided in the parishes of Prescot, Huyton, and Farnworth.

23 Alternating of male and female names was assumed to indicate fornicating or adulterous partners. In some cases the conjunction “and” was inserted by the clerk. “Case” refers to an instance in which only one or both partners were presented. Thus, for fornication when the 19 times in which only one partner was presented are added to the 134 cases in which both were presented, the result is 287 individuals.

24 L.R.O.: DDPt/22 for 1595; and QSB/1/194/46, Wigan, Epiphany 1637/38.

25 For example, L.R.O., DDC1/1141, Lytham, for 1627.

26 L.R.O., QSB/1/70/48, Wigan, Easter 1630.

27 L.R.O., QSB/1/91/39, Manchester, Midsummer 1631.

28 L.R.O., DDPt/22 for 1606.

29 L.R.O., QSR/5, Ormskirk, Easter 1602.

30 L.R.O., QSR/24, Ormskirk, Midsummer, 1627. Also see QSB/1/30/8, Wigan, Michaelmas 1627.

31 L.R.O., QSP/140/32, Manchester, Epiphany 1656/57.

32 This hypothesis was tested by analyzing all cases of sexual immorality for which justices dispensed punishments and which are recorded in the Lancashire Quarter Sessions documents for the years 1601-02, 1608-09, 1617-18, 1628-29, 1637-38, 164748, and 1657-58; all cases of bastardy for which Somerset justices dispensed punishments for the years 1608-17, 1625-29, 1647-48, and 1654-59; and all cases of bastardy, regardless whether they resulted in punishments for Warwickshire for 1625-60 and Hertfordshire for 1619-60. The kind and amount of data included in Quarter Sessions documents differed from county to county, and this difference precluded applying each analysis to all counties. Data came from the sessional records mentioned in footnote 13; from Tait, James, ed., Lancashire Quarter Sessions Records, Volume I, Quarter Sessions Rolls, 1590-1606, Chetham Society, n.s., Vol. 77 (Manchester, 1917)Google Scholar; and from Rev.Atkinson, J. C., ed., The North Riding Record Society, Volume I, Quarter Sessions Records (London, 1884)Google Scholar. Even today “it looks as though persons identified as sex offenders are often picked out of the population because of their social backgrounds, rather than as a direct result of their criminality.” See Gibbons, Don C., Society, Crime and Criminal Careers: An Introduction to Criminology (Englewood Cliffs, N.J., 1968), p. 379Google Scholar. The majority of modern sex offenders are “relatively normal in personality structure” and “tend to be socially disadvantaged individuals of generally low intelligence and economic position.” See ibid. For a study on the normality of users of pornography, see Human Behavior, Vol. 3, No. 8 (Aug. 1974): 51–52Google ScholarPubMed. The reader may recall the allegation by women's organizations that rape is a crime of violence and not a sex crime.

33 The only obvious case of sexual discrimination occurred in 1608 when the unwed mother received ten stripes of the whip and the reputed father received five. L.R.O., QSR/10, Manchester, Easter 1608.

34 L.R.O., QSR/16, Ormskirk, Easter 1619.

35 The 51 mothers with chargeable bastards include 23 cases in which the issue was the settlement of the mother and child. In many of these cases two parishes disagreed over which should accept the mother and child as settlers and as additions to their relief rolls. The 51 unwed mothers with chargeable bastards and the 74 without exclude an additional 27 unwed mothers about whom it could not be determined whether their children were chargeable.

36 See note 13.

37 Until 1975, the state of Pennsylvania, while fining both unwed parents, placed financial responsibility solely upon the male. See The Ann Arbor News (Michigan), Vol. 141, No. 93 (April 3, 1975): 45Google Scholar.

38 It was assumed that in the documents the statement “to maintain the bastard” meant to provide financially, and “to keep and to maintain” implied living with the child.

39 Marchant, Ronald A., The Church Under the Law: Justice, Administration and Discipline in the Diocese of York 1560-1640 (Cambridge, 1969), pp. 224–25Google Scholar. Indeed, Lancashire JPs carefully avoided punishing twice for the same offense. In 1632 nine males from Warrington were charged with “acting a play of Henry the eight” in an alehouse on a Sabbath during divine service and received “condigne punishm[en]t.” Since “in respect by lawe they are not to bee punished twice for one offence,” the bench ordered “the Deane” not to proceed against them “in the Deane or ordinaryes Co[u]rt,” L.R.O., QSR/29, Ormskirk, Midsummer 1632.

40 Bates, , Quarter Sessions Records …, Vol. 1, p. xxxiiiGoogle Scholar.

41 Marchant, , The Church Under the Law …, p. 224Google Scholar.

42 Tait, , Lancashire Quarter Sessions Records …, p. xxiiiGoogle Scholar.

43 For example, L.R.O.: QSR/14, Manchester, Easter 1617; QSR/14, Lancaster, Michaelmas 1617; QSR/15, Manchester, Michaelmas 1618; and QSB/1/55/38, Manchester, Easter 1629.

44 Post-1619 results from Lancashire are clearly duplicated in other counties. To test whether the pre-1619 results from Lancashire are also duplicated, it is necessary to analyze punishments for bastardy dispensed in a county without a house of correction. The only published Quarter Sessions records of such a county come from the North Riding in Yorkshire which did not possess a house of correction until 1620, a few years after the investigated period of 1603-12. Unfortunately, the editor of the Quarter Sessions Minutes and Orders of the North Riding published only abstracts of all entries for 1605-12 and only selections from Michaelmas 1612 on. In any case, from 1605 to 1612 JPs dispensed direct punishments to at least seven of 39 males and to four of 40 females who were carted, stocked, whipped, or fined. The data are too few to support or negate any hypothesis. Clearly, more research is needed. See Atkinson, The North Riding Record Society.

45 EDV 1/12b, 13, 14, and 15 at the Cheshire Record Office.

46 The computations for Somerset exclude those punished for lack of sureties (2), those ordered to confess their faults or be whipped (8), those left to ecclesiastical law (8), and a male committed to jail for refusing to perform an order, because these punishments were only indirectly related to bastardy. With these exclusions, the punishments in Table 5 are 48 for 1608-17 and 1625-29. Those in the “neither punished” row include cases in which punishments did not directly relate to bastardy. In those cases where one of the two parents was punished directly for bastardy and the other indirectly, only the directly punished were included in the “male or female only punished” rows. The “10?” refers to ten women imprisoned for bastardy and evil course of life as noted in two calendars of prisoners in the houses of correction at Shepton Mallet and at Taunton for Epiphany 1656/57.

47 Strictly speaking, the number of cases before JPs are not comparable with those before ecclesiastical officials because tabulations of the former are based on the number of punished offenders, and tabulations of the latter on the number presented.

48 Bates, , Quarter Sessions Records …, Vol. 23, pp. 112–13Google Scholar.

49 Ibid., p. 112.

50 Ratcliff, and Johnson, , Warwick County Records …, Vol. 4, pp. 10, 24, and 142Google Scholar.

51 In 1598 West Riding JPs, unable to determine immediately who fathered a bastard, ordered two suspects to pay the child's cost until the matter had been settled. See Lister, John, ed., West Riding Sessions Rolls, 1597/8-1602, The Yorkshire Archaeological and Topographical Association, Record Series, Vol. 3 (London, 1888), pp. 117–18Google Scholar.