The Rape of Mary Hendrickson, 1770, Loudoun County, Virginia

We know Mary Hendrickson is the daughter of John Hendrickson and Eve, because Simeon Hendrickson names her in his LDS/Mormon 1843 Baptisms for the Dead as his aunt, Mary Walker, along with his cousin “Neoma” (Naomi) and her husband James “McBrier” (McBrayers).

Naomi is listed as “aunt” on this transcribed card. I don’t have the original hand-written ledger for 1843 (I have it for 1841) but I have seen incorrect transcriptions from the hand-written 1841 ledger to the 1841 cards. The marriage record below shows that Naomi is Mary’s daughter, not her sister.

Note: Mary Hendrickson is not a daughter-in-law. If that were true, Simeon would have baptized her Hendrickson husband at the same time.

Mary gives consent for the marriage of her daughter Naomi to James McBrayers in January of 1794, Mercer County, Kentucky.

If Naomi needed consent, then she was under 21, so born before 1773. In Naomi’s 1830 census record, it indicates she’s born between 1761-1770. It’s highly likely that Naomi is the offspring of this rape, though we can’t know for sure.

Mary doesn’t marry Thomas Walker until after 1794 because she signs Naomi’s consent as “Mary Hendrakes.”

Details about the rape case

The rape happened in Loudoun County, Virginia, but because it was a felony, the case was heard in Williamsburg, Virginia.

Loudoun County, Virginia, Order Book D, 10 April 1770: [page 338] 

At a Court called and held Saturday the 7th of July 1770 for the examination of James Shaughness charged with felony in committing a rape on the body of Mary Hendrickson. Before George West, Craven Peyton, William Douglass, Stephen Donaldson & Fleming Patterson, Gent. Justices. Pleads not thereof guilty. Opinion of the Court that James is guilty of the felony and ought to be tried for the same at the next General Court [in Williamsburg, VA]. Ordered that he be remanded to goal, and sent down for a further tryal and that it be certified that James is a transport and convicted. John Queen acknowledged £50 bond that Mary shall make her personal appearance in City of Williamsburg on the 6th day of the next General Court to give evidence. Court dissolved. George West. Truly recorded by C. Binns. Cl.

Notes and timeline

• In those days, women had to tell about the rape within 40 days of it occurring, because “concealing it implies consent.”
• The rape case came before the Loudoun County court on July 7, 1770, so it had to have occurred sometime in the preceding 40 days. (I’m not sure if it was an oddity that the court was open on a Saturday, or if this was a special court opening because of the severity of the case.)
• Because it is a high crimes case (not a civil suit), it is sent to the General Court in Williamsburg.
• John Queen gives bond that Mary Hendrickson will show up in Williamsburg for the court case. (We need to find out how the Hendrickson family is connected to the Queen or McQueen family of Loudoun. It’s likely to be a family member, or someone close to the family, to post a bond ensuring someone would show up in court. This is likely the John Queen Sr, married to Mary Butler — his son, John Jr., would have only been 15 at the  time. I know Elijah Queen marries Barbara Hendrickson, Mary’s sister, in 1792, but I can’t find proof of a connection between Elijah and John Queen.)
• Rape was punished by death in those days. The governor could issue a pardon. However, Governor Botetourt died on October 15, 1770 (keep note of this date, you’ll need it later in the blog post), and the new governor was to be Dunmore, but he hadn’t taken office yet. For the following year, the Virginia Council, headed by President William Nelson, essentially ran the colony.
• The case is heard in Williamsburg. The court case is mentioned first in the October 25, 1770 issue of The Virginia Gazette, and says “came to court last week” – so during the week of October 15-19. Shaugness is found guilty and sentenced to death.
• Governor Botetourt died on October 15, 1770, and the new governor was to be Dunmore, but he hadn’t taken office yet. For the following year, the Virginia Council, headed by President William Nelson, essentially ran the colony.
• In the November 8, 1770 issue of The Virginia Gazette, it say Shaughness (“Shawness”) was pardoned on “Monday last” or November 5, 1770 [actually, November 6 according to Executive Council Journal, see end of this article].

There are only 3 reasons I can think of why he was pardoned

1. There was a custom in the colonies at that time when a new governor took office, he pardoned the first case that came to trial. This case was probably the first capital punishment case to come to trial after Botetourt died on October 15, when Nelson became president of the Council, before Dunmore took office a year later. This is probably the reason; see Executive Journal of the Council note at the bottom of this article.
2. From the Loudoun court case, I got the impression that Shaughness was a convicted criminal transported from overseas. If this is true, he was probably an indentured convict servant. His master could have asked for the pardon so that he didn’t lose a valuable piece of property – his servant.
3.  Shaughness himself pleaded for his life. (Though, as an convict servant, I can’t imagine he any political power.)

There is an article, The General Court of Colonial Virginia, it says there were ONLY EIGHT rape cases brought to court in Virginia in the 1700s. Five were aquitted, two were hanged, and one was pardoned – James Shaughness.   I believe the author calculated that based on an analysis of court-related articles in the Virginia Gazette, and not from actual court records, so the number of rape cases could have been higher.

One of them is the case of Mary Hendrickson vs James Shaughness. Clearly there were more rape cases over the 130+ years of colonial rule in America, so women didn’t admit it or bring charges. 

Women did not bring rape cases for a number of reasons: shame, guilt, fear, parental pressure. This case with Mary must have been dire, perhaps with pregnancy, beating or some other outward sign that people couldn’t ignore. Women had 40 days to bring the case forward; after that the court said “concealing it implies consent.” (By 40 days after a rape, a woman would know if she were pregnant.)  

Since Shaughness was an indentured convict servant, even if he was pardoned, he might have been punished for the loss of work during his trial, and additional years added to his indenture. (Transported convicts were sold to plantation owners as a form of labor.) I can find no further information about him in the Loudoun records or in the Old Bailey (London) court cases, nor whom his master was in Loudoun. 

If Mary had not told about the rape, and if she were pregnant, she could have been accused of “fornication,” which held a huge fine. Her father, John, would have been responsible for paying that fine. See the article, Enforced Bastardy by Roberta Estes for more information on indentured servants and pregnancy in this time frame.

So why did Mary Hendrickson report the rape?

(And does this help us to prove Naomi is the daughter from that rape? For those descendants of Naomi, it might be fruitful to look for Shaugness/Shawness/Shaughnessy DNA matches. Please let me know if you find any!) 

We must remember this was a criminal course case, not a civil one. This isn’t about establishing fatherhood or who is responsible for paying for an illegitimate child. But the civil case background might matter, and may have been the impetus for the government to file criminal charges. (I wish I had a copy of the original case file from Loudoun or the case file from Williamsburg, but I don’t. The Loudoun case file might still exist; the Williamsburg case file probably doesn’t exist…they lost many records during the Civil War. I’m looking into finding researchers in Loudoun who will find this case file for us if it still exists. Perhaps, one day, these files will be digitized and available online! Fingers crossed.)

I’ve been pondering this, and I have these two possibilities: either she was pregnant, or she was not pregnant but the situation was clear to outsiders and couldn’t be ignored.  

1. This is a highly religious and puritanical era; if Mary is pregnant and it’s not rape, she would have been accused of fornication and her father would have had to pay a huge fine (upwards of 500 pounds of tobacco). Mary would have been stigmatized either way. In her situation, the shame of being raped (in those times) would have been massive, and I’m guessing she would have avoided a public court case if she could. So if she’s clearly pregnant, the government and church want to know what happened. She tells them she was raped, the criminal case begins. 
2. Mary is pregnant by an indentured servant, so the cost of raising the child might have been requested of the servant’s master. The responsibility to raise an illegitimate child fell to the father, but in this case, would the servant’s master be ultimately responsible for anything his servant did? I know the law for female servants who got pregnant was that the master was responsible to support her (if no father was named), and she, in turn, would have a year or more added to her indenture to pay back the master for loss of her work before and after the pregnancy. Was it the same for men? In any case, it seems a little early for a civil bastardy case, unless it came about after she gave birth (but then that’s past the 40 day notification period).
3. Mary is or is not pregnant, and there were witnesses to the rape. 
4. Mary is or is not pregnant, and she was so badly beaten or mentally unstable that neighbors noticed. 

Given the time frame of 1770, these are the only four reasons I can think of why she would come forward. 

It’s a pardon, not an exoneration

And remember, it was a pardon, not an exoneration. That means facts didn’t come to light later to show that Shaughness was not guilty of the rape. He was found guilty in October 1770, and pardoned by the new Council President in November 1770.

From the Executive Journals of the Council of Colonial Virginia, v.6 1754-1773, page 376 and page 377. The Council met on 6 November, 1770. They discuss the death of Botetort, talk about a Council President replacement, and also comment on possible pardons:  

“Two of the Malefactors now under Sentence of Death, viz. William Gray, for Horse-Stealing, & James Shaughness, for a Rape, were recommended by the Board of his Honour, as fit Objects of Mercy.”

Of course, where is the “mercy” for Mary Hendrickson?? It’s a small wonder that the family left Loudoun during this time period and moved to Fayette County, Pennsylvania.

This is a heartbreaking story and one that needs to be told.