Kelly A. Ryan

On January 11, 1779, Nabby Whitmore, a white single woman from Royalston, Massachusetts, confessed to Justice of the Peace Abel Wilder that she was pregnant with a child that “was likely to be born a bastard.” Whitmore told Wilder that the father of her child was William Clemmons, a white single yeoman, also from Royalston. In June, after the birth of her child, Nabby appeared in court and was fined fifteen shillings for fornication. In contrast, William Clemmons was not required to appear or pay a fine. By the 1770s, men were no longer subject to punishments for fornicating, and their responsibilities in matters of illegitimate births were assigned in paternity hearings or outside of the court in private arrangements between the parties involved.

Two centuries later, reviewing these fornication and paternity cases gives us insight into New Englanders’ values and private lives in the sixty years surrounding the American Revolution. Historian Robert V. Wells estimates that 16.7% of brides were pregnant during the eighteenth century. In addition, some women who became pregnant never married. Prior to the American Revolution, fornication was prosecuted throughout the colonies, but New Englanders were especially diligent in this regard. Between 1740 and 1769, nearly 900 women confessed to fornication at the General Sessions of the Peace in Plymouth, Middlesex, Suffolk, and Worcester Counties in Massachusetts, for which they received a fine or a whipping. In the 1770s, an additional 231 women confessed. Even as numerous crises with England and, finally, war, funneled energies elsewhere, societal standards remained firm. Priorities of policing society’s gender and racial boundaries were largely consistent over time, although men’s culpability for illicit sex actually declined over the eighteenth century.

In fornication confessions, justices of the peace asked white women such as Nabby Whitmore for her name, marital status, alleged sexual partner’s name and occupation, the towns in which they both lived, the location and date of conception, and whether or not they had “carnal knowledge” of any other men. Many women were loath to confess fornication to justices of the peace. However, members of the community and justices worked to ensure that grand jury indictments were drawn up against women who refused to confess. Between 1740 and 1770, I found that at least 30 percent of women prosecuted for fornication had involuntarily confessed at the General Sessions. The law stipulated that women pay less than £5 for their crimes, but most, like Whitmore, paid 15 shillings.

Some women actively worked to resist the system by avoiding courtroom appearances or denying justices the information they desired. Paternity issues often determined whether a woman would willingly confess to fornication and name her sexual partner (or partners). Women who did not wish to start a paternity suit often tried to avoid the entire process, but many were forced into court. During the 1760s, a quarter of women charged with fornication in Middlesex County chose not to identify their children’s fathers. These women likely made private arrangements with the fathers, did not know the fathers, or did not want to have further contact with the fathers. Other women tried to avoid the entire process. Zilpah Fariner, of Tewksbury, was indicted twice in 1778 and twice in 1779, and yet she eluded two sheriffs searching for her. Most women, however, were found and brought to court.

For the women initiating paternity suits, marriage was an unlikely outcome to their pregnancies, and obtaining financial resources to provide for their children was vital to their willingness to confess. In March 1779, after Nabby Whitmore had given birth, a warrant was issued for William Clemmons, who likely acknowledged fathering Whitmore’s child because no paternity hearing followed. Indeed, in June 1779, when Whitmore paid her fine, she appears to have been satisfied because she did not request a petition for Clemmons. In most cases, men admitted to paternity privately with their sexual partners before women appeared in court. Men were released from their bond to appear in court if they made private arrangements with women. Resolving the matter quickly was beneficial to men who wanted to avoid a public hearing to determine the matter.

Women’s confessions and paternity suits reveal a host of information about the sexual lives of early Americans, including some women’s perception that sex with their partners would lead to marriage. Other couples engaged in fleeting sexual encounters and did not expect relationships to emerge from these trysts. Records reveal that taverns, boarding houses, and the outdoors served as sites for sexual liaisons because they offered couples some measure of privacy. In 1782, Henry Kimball, who boarded at a tavern in Waltham, testified in a paternity suit initiated by Susannah Flagg. He reportedly saw Flagg in “Mr. Weston’s Tavern, Where I then Boarded, and there was a number of Teamsters there.” The teamsters, according to Kimball, were “Strangers to me and I suppose Strangers to her, but She Soon got acquainted With one of them, and spend the Chief of the Night with him.” Later, when Kimball went to bed, he “found some Boddy [sic] there I supposed it was those two Persons.” Kimball’s testimony shows that some early Americans followed their sexual whims without serious commitments, a notion in stark contrast to the idea that our New England ancestors were prudish and chaste.

Through fornication prosecutions, the government took an active role in establishing paternity, but that was not the sole reason for these prosecutions. Fines were not lessened for women who married or miscarried, and the declining number of prosecutions against men for fornication did not serve to make the establishment of paternity any easier. Men’s payment towards the support of their children from these unions was not equivalent to the fines or whippings that women suffered, and women were also required to maintain their children. Fornication prosecutions were intended to police women’s sexuality, and some women resented it and were not willing participants.

In addition to gender bias, racial motivations limited the charges against African American and Indian women. After 1740, only a few records of fornication among African Americans or Indians exist. The absence of these cases tells us that slave holders believed that slavery would be threatened if they assigned paternity to African American men. In addition, white men’s own acts of illicit sex may have come to light if African American and Indian women were drawn into court and asked to name their sexual partners. Finally, forcing Indian women to pay fines for fornication would have upset the relations between Indian nations and the Massachusetts government. Clearly, many factors motivated the prosecution of sexual crimes and the way the state handled these cases depended on the sex and race of the individuals involved.

Records of fornication and paternity demonstrate that current perceptions of the past are often inaccurate. The eighteenth century was not an age in which people consistently denied their sexual urges prior to marriage. In early Massachusetts society, gender and race clearly held significant influence over society’s operation of the judicial system and its opinion of fornicators. By examining these records, we stand at the doorway to better understanding the origins of our own biases and perceptions of sexuality, and consequently, how we might break free of them to better understand our modern world.

Kelly A. Ryan is Associate Professor of History and Coordinator of the History Department at Indiana University Southeast. Her book Regulating Passion: Sexuality and Patriarchal Rule in Massachusetts, 1700-1830 was published by Oxford University Press in 2014.

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