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A Review Of John Pagan’s "Anne Orthwood’s Bastard"

1247 words - 5 pages

In Anne Orthwood’s Bastard: Sex and Law in Early Virginia, John Pagan sets out to examine the complexities of the legal system on the Eastern Shore in the seventeenth- century. He brings to light the growing differences between the English and Virginia legal systems. Pagan, an early American legal historian at the University of Richmond School of Law, spins a tragic story on the legalities surrounding an instance of out-of-wedlock pregnancy. Indentured servant Anne Orthwood’s brief encounter with a man of higher social standing produced a series of four court cases. Pagan examines each case and persons involved, vividly connecting each case to larger themes of social class, gender, labor, and economic power.
The layout of the book devotes each chapter to a key figure in Anne’s case. The story begins, fittingly, with Anne Orthwood, the young indentured servant, who had a brief affair with the young nephew of Colonel William Kendall who was of high social standing in the community. Pagan does a masterful job of describing the human aspect of the people surrounding each case. He ties the human element with the decisions made by the justices of the peace. These ties offer a clear understanding of the malleability of the laws and the legal modifications that were made by empowered justices. For example, indentured contracts became extremely pliable to local interests. Anne’s indenture was sold three times in two years, each was without her consent as would have been needed in England. The second sale of Anne’s indenture provoked the case of Waters v. Bishopp, in which Waters had discovered Anne’s pregnancy and sued Bishopp for breach of contract and selling a “faulty product”. The English followed the caveat emptor rule, in which a buyer should beware of what they are buying. Caveat emptor was the basis for Bishopp’s defense. The justices’ split from England regarding this law when they stripped servants of their rights and gave greater protection to the purchasers of their contracts, this created the caveat venditor. Caveat venditor, in which the seller bore responsibility for all misrepresentations of quality regardless of whether he actually knew the truth at the time of sale. This was the argument Waters used to successfully win his lawsuit. Pagan does a great job of outlining these details and gives another case in point that followed this newly adopted change in law. As Pagan writes, “The outcome of Waters v. Bishopp illustrated colonists’ ability to use old devices to push the law in new directions.” (p. 99). The case paints a clear picture of how colonists modified traditional English law to create a separate American legal system.
The second case involving the illegal birth of Anne’s son Jasper was the Ex Parte Kendell, which was the civil liability for child support. Pagan background of the accused father, John Kendell’s family ties explains the importance of social and economic class systems that were quite prevalent in the...

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