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Enforced Bastardry in Colonial America – A DNA Monkey Wrench

Roberta Estes

Sometimes when men Y DNA test, their results are returned with matches to different surnames, meaning surnames other than their own. In fact, it’s not unusual, but hopefully, they will also match several men who carry their own surname with the idea that those matches will help the tester further their genealogy by being able to connect to ancestors further back in time.

Best case, to identify the actual ancestor.

Worst case, to find hints to lead to their own ancestor through the matching DNA of others.

The Holy Grail

The Holy Grail, for many genealogists, is to find a Y DNA surname match overseas, in a small village, where the local church still has records. That’s what we did in both the Estes and Speak Y DNA projects. The DNA matches confirmed where those lines originated and the church and other traditional genealogical records confirmed we had discovered the origin location of the actual immigrant ancestor.

You can read one of several articles about the trip back to Lancashire for the Speak line here and to Kent for the Estes line here. DNA made confirming the connection between the American/New Zealand lines and the British lines possible.

However, for some, that overseas match never arrives. I’m here to tell you, 16 years and waiting on my Moore line and we still have only a few matches, and only from the brickwall ancestor in Virginia to current – nothing before and no matches with any other Moore line.

Patience may be a virtue, but it isn’t one of mine!

In some cases, like my Moore line, the surname in question only matches people downstream from the known ancestor.

Talk about frustrating.

Surname Matching Issues and Indentured Servitude

One of the reasons surname matching issues can occur, but that we seldom think of, is the situation in colonial American where indentured servants, those who sold away from 5 to 9 years of their life in exchange for for passage to America, were forbidden to marry.  Therefore, if a female became pregnant, she was forced to have the child outside of marriage – meaning the child took her surname.

If a male indentured servant impregnated someone, he too was forbidden to marry – so the child took the mother’s surname and life went on.

Based on the court notes from Richmond County, Virginia, beginning in 1692, and from Rappahannock County, before that, this was a lot more common that one would think.

Now, fast forward 300 years – the surname and the Y DNA don’t match. Better stated, the person carrying a particular surname today doesn’t match any or many people of the same surname.

Making matters worse, according to the records in North Farnham Parish, in Virginia, beginning in 1600s when the area was Old Rappahannock County and reaching through the 1800s when it was Richmond County, “bastard” children don’t appear in the baptismal records. Having said that, the records are known to be incomplete, even for children born to married parents, but given the number of illegitimate births, it’s difficult to believe that somehow all of those records just happen coincidentally to be missing.

Richmond County is lucky to have any church records. Many locations don’t.

So, if your ancestor was one of the illegitimate children born, there is:

If you’re lucky, a court record will exist where the mother was brought before the court and prosecuted for “the sin of fornication” and with having a “bastard child.” Generally, that’s not the kind of record a genealogist is looking for. They are looking for males with their specific surname in wills and deeds, not court cases involving female indentured servants bearing children out of wedlock.

As punishment, the woman’s indenture was extended, from a year in early cases, as seen in the examples below, to 5 years in a later case in Halifax County, Virginia.

Sometimes in these cases, the pregnancy causes the woman to fall into perpetual indentured servitude, as we can see in the Thatchill case.

The father? What happened to him?

Sometimes he had to pay a fee of tobacco to the church to assure that the church would not end up paying to raise the child – because an unwed mother was generally condemned to a life of misery and poverty – unable to support her child after her indenture was over.

Furthermore, many indentured servants didn’t survive. While working a slave to death was counterproductive, because the owner wanted the slave to live long and reproduce for the economic benefit to the owner, indentured servants only served for a number of years, so masters often worked these people relentlessly and maintained them in the poorest of conditions.

Enforced Bastardry

While researching my ancestors in Richmond County, Virginia, I stumbled across the three following cases of what I’m terming “enforced bastardry.” I find it somehow ironic that the very men, court and church that condemned these women for “fornicating” had arranged and condoned the very system that forced them to remain unmarried – in essence forcing them to bear those “bastard” children.

In the following cases, the word “master” does not denote a master/slave relationship in the sense of an African or Native American slave who was a slave for life. These were white European immigrant women who were indentured for a set period of time, to be freed after their indenture was served, assuming they survived, not permanently enslaved.

Permanent slaves never officially “married” within the law, and were not prosecuted for “fornication.” In fact, their owners wanted them to reproduce because children of slaves were born into the status of the mother. If the mother was a slave, so were the children.

This was a very profitable arrangement for the slave owner, because slaves that had to be purchased were expensive and in early America, often in short supply. Very occasionally, slave children were baptized, but when so, they were listed under the master’s name, generally not the name of the child and never the name of the parent or parents.

Case 1 – Katherine Thatchill and Catherine Perry, servants to Abraham Marshall

Richmond County Court Order Book, July 2, 1701 – Katherine Thatchill servant to Abraham Marshall by and with her own consent is ordered to serve her master or his assignes the full terms of one years after her time by indenture custome or otherwise be fully expired being for the payment of her fine for committing the sin of fornication.

This day Abraham Marshall confesed judgement to the churchwarden of Farnham Parish for the use of the parish for 500 pounds good tobacco in cask which this court have ordered to be paid with costs of suit. Exo. Being the fine due from Katherine Thatchill for committing the sin of fornication.

Ordered that Katherine Thatchill do serve Abraham Marshall her present master according to act for the care and trouble of her childbirth of a bastard child.

It being evidently made appear to the court that Catharine Parry, servant to Abraham Marshall did fugitively absent herself from her said master’ service the space of 15 days and that her said master hath expended 300 pounds of tobacco for percuring her againe, the court have ordered that the said Katherine do serve her said master or his assignes the full terms of one years after her time and be fully expired being for the payment of her fine for committing the sin of fornication.

These items appeared in consecutive order on the same court order page on the same day. Given the fourth paragraph, it appears that indeed, there were two women, one Katherine Thatchill and one Catharine Perry.

Amazingly, Catharine Perry only “missed” 15 days of “work” but she paid for it with another year of her life, because her master paid her fine.

Court Order Book May 6, 1702 – Capt. John Tarpley one of the churchwardens of the parish of North Farnham certifying to this court that Thomas Tatchall being a parish charge and Abraham Marshall being willing to discharge the said parish of ye said Thomas, the court have ordered that the said Thomas Tatchall do serve the said Abraham Marshall and Thomazin his wife their heires and assignes until he shall attaine to the full age of 21 years.

Apparently, Katherine Thatchill’s child lived and is now also indentured until he is 21. The only way Katherine can be with her child it to remain on Abraham Marshall’s plantation, assuming she is still alive. In essence, Abraham Marshall has now obtained two indentured servants for the next 21 years.  By that time, where is Katherine Thatchill going to go and how will she survive?  She will probably remain a servant for her entire life, in exchange for food and shelter.  Perhaps her son will do better.

Case 2 – Elinor Hughes, servant to James Gilbert

Richmond County, Virginia Court Order Book, Nov. 4, 1702 – Appearing to this court that Elinor Hughes has by her own confession fugitively absented herself out of the service of her master, James Gilbert, the space of 23 days, the court have ordered that she serve her said master or his assignes the space of 46 days after her time by indenture custome or otherwise be fully expired.

Elinor Hughes, servant to Gilbert Jones being presented to this court for having a bastard child, the court have ordered that she serve her said master or his assignes according to act in consideration for the trouble of his house during the time of her childbirth.

This day James Gilbert confessed judgement to the church wardens of North Farnham Parish for the use of the parish for 500 pounds tobacco it being the fine of Elinor Hughes for committing the sin of fornication and having a bastard child to be paid with costs also.

Ordered that Elinor Hughes servant to James Gilbert by and wither own consent do serve her said master of his assignes the space of one whole yeare after her time by indenture custome or otherwise be fully expired in satisfaction for his paying her fine for committing the sin of fornication and having a bastard child.

It’s appears that Elinor had to “pay” double the time she missed for “troubling” her master with her pregnancy, and a year for the fine he paid.  These laws and customs never benefitted the servant, always the master.

Case 3 – Ann Kelly, Servant to Thomas Durham

The drama involving Ann Kelly didn’t begin as anything unusual. Ann Kelly’s indenture to Thomas Durham begins like normal in 1699 when she was determined to be 14 years old. The court determined Ann’s age so that the length of her indenture could be determined and so that she could be taxed appropriately. Indentures of children not only involved a certain number of years, but lasted until they attained a specific age, minimally.

In 1704, in a deposition, Ann gave her age to be 20, which would have put her birth in 1684. If she were 14 in 1699, then she would have been born in 1685, so this fits.

Court Order Book Page 406, June 7, 1699 – Ann Kelly servant to Thomas Durham being presented to this court to have inspection into her age is adjudged 14 years old and ordered to serve her master or his assigns according to act.

However, by 1708, nine years later, Anne was 23 and circumstances had changed.

Court Order Book Page 372, July 7, 1708 – Anne Kelly, servant to Thomas Durham, being brought before the court by her master for committing the sin of fornication and having a bastard child and said Anne refusing to confess who was the father of the child, the court have ordered she be committed to the county goale there to remaine until such time as she shall confess who is the true father of her child and it is also ordered that she serve her master or his assignes after her time by indenture custome or otherwise shall be fully expired according to law in compensation for the trouble of his house during the time of her childbirth.

Imagine how intimidating this must have been for Ann. Not only did all those men, dressed in their finery and powdered wigs “know what she had done,” they were pressuring her for the name of the child’s father. Ann, a servant with nothing of her own, not even the right to direct her own body, stood firm, even when sentenced to jail.

Having none of this, Dorothy Durham, Thomas’s wife, steps in.

Court Order Book Page 372, July 7, 1708 – This day Dorothy Durham for on the behalf of her husband Thomas Durham confessed judgement to the church wardens of Northfarnham parish to the use of the parish for 500 pounds tobacco the same being the fine of Anne Kelly for committing the sin of fornication and having a bastard child which is ordered to be paid with costs.

I can’t even begin to explain how unusual this was. Not only did Dorothy appear at court, of her own volition, she clearly defied her husband to do so. Not only that, but Dorothy apparently controlled some financial aspects of the household, a very unusual situation for a woman in colonial Virginia. There seemed to be no doubt in anyone’s mind that Dorothy was capable and authorized to pay the 500 pounds of tobacco – even though Dorothy did say she was acting “on behalf of her husband.”

In every other similar case, some male community member steps forward and posts bail, or not, but no female ever steps forward like Dorothy did. I’m convinced that posting bail, in most cases, wasn’t so much to help the poor woman who had the child as it was to retain the services of the woman and not be inconvenienced. In Dorothy’s case, we’ll never know what motivated her to attend court alone, step up in place of her husband AND pay the fine for Anne Kelly. But she did!

Furthermore, in most cases, the female willingly named the child’s father. In this case, we do discover the name of the father the following March, and I wonder if Dorothy knew all along.

Court Order Book Page 4, March 2, 1708/9 – Anne Kelly came into court and made oath that Thomas Durham Jr. is the true father of 2 bastard children borne of her body in the time of her service with his father, Thomas Durham the elder. Upon motion of the Queen’s attorney ordered that Thomas Durham Jr. be summoned to next court to enter into bond with security for the indemnification of the parish and what charge may acrew to the parish for or by reason of the children aforesaid.

In March of 1708/09, Anne Kelly was dragged before the court a second time. This time, however, she named the father of the children – Thomas Durham Jr., the son of Dorothy and Thomas Durham Sr. While Thomas Jr. was summoned to post bond to the churchwardens so they would not incur future costs on behalf of the children, Thomas Jr. was not fined for fornication nor did he have to pay Anne Kelly’s fine for fornication and having a bastard child. Men were never fined. I guess those women managed to fornicate and get pregnant all by themselves!

This time, it wasn’t Dorothy who paid Anne Kelly’s fees, nor Thomas Durham Sr. or Jr., who should have by all rights paid her fines – but Thomas Dodson who was married to Mary Durham, Dorothy’s daughter. Anne Kelly, according to another court note, was assigned by Thomas Durham Sr. to Thomas Dodson, so was already serving at Thomas Dodson’s house, which adjoined the land of Thomas Durham Sr. In any event, after her original indenture, plus extra time for the first pregnancy, Anne was obligated to serve additional time working for Thomas Dodson because he paid her fine for the second pregnancy, caused by his brother-in-law.

Court Order Book Page 5 March 2, 1708/09 Anne Kelly servant to Thomas Dodson being this day brought before this court for committing the sin of fornication and having a bastard child the court have ordered Anne Kelly to serve Thomas Dodson or his assignes according to law after her time by indenture or otherwise is fully expired, in consideration of his paying her fine for committing the offence aforesaid.

Court Order Book Page 5 March 2 1708/09 Thomas Dodson confest judgement to the churchwardens of North Farnham parish for the use of the parish for 500 pounds tobacco being the fine of Anne Kelley for committing the sin of fornication and having a bastard child and it ordered that he pay the same with costs.

Anne Kelly arrived in June of 1699 at the age of 14. By 1709, she is still serving as an indentured servant, has had two illegitimate children, sired by her “master’s” son and still has at least two years left to serve on her indenture time, based on the court records. From this we know that Anne’s original indenture was at least for 9 years, because she was still a servant in July of 1708. A year later, in 1709, she is still serving, and has had 2 years added on to her time. This means that she will be serving until at least 1711 sometime, if not longer, and presuming she doesn’t get fined for fornicating again. This means that her indenture time beginning in 1699 when she was 14 is now extended to when she is minimally 26 years old, when she will be released with a suit of clothes to somehow make her way with two children.

And the greatest irony of all, Thomas Durham Jr. married the daughter of the neighbor planter in about 1710, beginning his “legitimate” family with her. So, while Anne Kelly is still paying with the days of her life for her crime of “sinning” with Thomas Durham Jr. on one farm, he has married the daughter of the neighbor and is setting up housekeeping – probably within view everyday of Anne Kelly.

No hard feelings there, I’m sure. I can’t help but wonder what happened to these women and their children.

Note that in  only one of these cases do we have any idea of the gender of the child and his name from a later record. In the rest of the cases, and normally, there are no names, and no birth dates, although we can at least surmise a year. We also don’t know if the children survived. There are no records in Richmond County in later years for any individual that appears to be the offspring of these women.

In colonial Virginia, the stigma of illegitimacy never washed away. The best way to remove it? Move. Far away. Preferably to the frontier where pioneers were far too busy clearing land and eking out a living to ask questions. Marry someone and start a life far distant from those damning court records and community knowledge.

If you think this scenario might fit your family situation, what do you do?

What To Do?

Unfortunately, these cases are very difficult, if not impossible, to crack.

Hints that enforced bastardry might be involved would include:

Of course, the problem is that any of these circumstances mentioned above can be caused by other factors. Few Y DNA matches can be caused by few (or no) descendants or the fact that your line just hasn’t tested. No overseas matches can stem from the same thing, or the Y line has simply died out in the original location. If you’d like to read more, Concepts –  Undocumented Adoptions vs Untested Y Lines discussed more about this topic.

Matches to other surnames can result from a common ancestor before the advent of surnames or misattributed parentage, also known as NPEs or non-parental events, in other lines, as well as your own.

Ancestors who seem to appear out of no place can be a result of records destruction, or ancestors arriving as indentured servants or convicts, remaining poor and never owning land. A combination of these factors is particularly devastating for the genealogist, because it appears that our ancestor literally dropped out of the sky, arriving via the stork.

One approach I take is to look for common geography between my ancestor and the ancestors of other people with closely matching surnames. For example, in the case of Ann Kelly, we know that the father of her children was Thomas Durham, Jr. If the children were male, their surname would be Kelly, but their Y DNA would be Durham. Once you focus on a geography for the Y DNA line, you can turn to autosomal matching for that same surname to see if other people emerge as matches who are not directly descended from the paternal line.

Another avenue, and don’t laugh, is to google the various terms together, such as “Durham, Kelly, 1700, Virginia.” I’ve often found the old Rootsweb and GenForum lists to be wonderful sources of earlier research that has never made it into print or into trees anyplace. – and they both show up in Google searches.

However, in the Kelly/Durham case, as irony would have it, Thomas Durham Sr. had only one surviving son.   Thomas Durham Jr.’s only son, John, had three sons. Just recently, a Durham male descendant of Thomas Jr. through grandson Charnel was discovered and Y DNA testing is currently underway.

It will be very interesting to see if our Durham tester matches any Kelly males.

Testing

In order to utilize Y DNA, you must find a male from your desired line who is descended from the ancestor in question through all males to take a Y DNA test. Typically, this means a male who carries the same surname, assuming no name changes or adoptions.

Today, the only vendor offering Y DNA testing and matching is Family Tree DNA. Fortunately, they also offer autosomal testing with the Family Finder test, and Advanced Tools so that you can see if a Y DNA match also matches you autosomally. Their Family Finder matching tool also allows you to search by both current and ancestral surnames.

Click here to order either test. You’ll need both a Y DNA test and the Family Finder test to do the combined search for people who match on both the Y DNA and autosomal results.

You may also want to read the short article, 4 Kinds of DNA for Genetic Genealogy, which explains about the different kinds of DNA that can be utilized for genealogy research.

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