The Burke Family of Stockport

CONVICTS AND BIGAMY

Isaac Jessop was married in England prior to his transportation to Australia. His records would have shown that he was married. As divorce was not implemented in New South Wales until 1873 the question is raised as to how he could have been legally married to Mary Kelly.

The following is an article from Roostweb archives (reference: > AUS-PT-JACKSONCONVICTS

2005-10 > 1129872159) on this subject.

From: "John Humphrey" humphreyjohn@rogers.com

Subject: Re: [PJ] RE: Convicts previous marriage in the old country

Date: Fri, 21 Oct 2005 01:22:39 -0400

Many thanks for the information, Dianne. I've just "googled" the issue tonight, and found a little article on-line, by Henry Finlay, called 'Divorce and the Status of Women - Beginnings in Nineteenth Century Australia' p12-15

[http://www.aifs.gov.au/institute/seminars/finlay.pdf ] It pretty much confirms what you said. I've pulled out a few of the main points - he explains in a legalistic way how, since divorce was impossible to get, convicts with a wife/husband "back home" could get a new relationship formed in the colony registered as a 'marriage':
"A 'popular' way out was bigamy based on the presumption of death. This was based on a common law rule in English law 'that a person could be presumed dead, who had not been heard of for seven years by those who would be most likely to hear of them if they were alive'. The rule was institutionalized by legislation: ".An [English] act in 1828 .. allowed for a remarriage if one spouse were 'continually absent .for the space of seven years .. and
shall not have been known . to be living within that time.' ".
The rule came to be widely used as a means of escaping from a marriage that was felt to be irksome or no longer viable. It was used, not only by transported convicts, but even by some of the wives that had been left behind, because they were unable or unwilling to make the necessary enquiries....Convicts..were in most cases transported without their families. Subsequent applications for families to join them were not necessarily granted. A
convict had to show that the family would not become a burden on the government or, where the convict had been assigned to a settler, that the master had no objection. Communications were difficult and time consuming, [and] literacy .. far from universal.. Writing ..was a skill not much needed by the poor, especially women. They rarely had
command of paper, pen or ink, or time to learn. Many convicts thus lost touch with their spouses upon transportation, even if they wanted to keep in touch. It was then tempting to contract a new marriage in Australia, even if they had to persuade the authorities that they were unmarried or widowed.
The legal principle was obviously subject to a great deal of abuse, as much out of ignorance as from any wilful flouting of the law While widely known in general terms, and as such part of the general 'mythology of the law', it was sufficiently vague in its application and therefore often misstated and misapplied. One particular misuse of the seven year doctrine was that while, strictly speaking, it applied only retrospectively at the end of the seven year period, many acted on the assumption that once contact had been broken by separation, the way was open to remarriage.. .Technically, on remarriage, a person in this position was committing bigamy, if that remarriage took place before the expiration of the seven years of absence. It is more than doubtful, however, whether the
offence was often detected or pursued into court...
In a letter written to the Reverend Samuel Marsden in 1832, Elizabeth Fry comments on the difficulty of knowing with certainty whether female convicts, or wives left behind, were married or not: "For as it is only their own word that is taken for it, it may as well be taken in New South Wales as here, and those who make it clear that they are married certainly should be treated as such, but it appears almost impossible certainly to know their real condition. Our Under Secretary of State also says that any woman who has not heard of her husband for seven years may marry again - therefore there is nothing to hinder any under such circumstances." It appears that the authorities were often prepared to accept statements on affidavit, that applicants were within the principle. On the other hand, the authorities themselves do not always seem to have uniformly applied the same rules to this question. [In NSW, permission for a new marriage, without proof of death, was occasionally refused, and bigamy charges were occasionally laid].
Anyway, it's a fascinating topic. I'm not sure that my convict bothered to jump through these hoops to persuade the authorities of his right to remarry, but maybe he did; maybe his "free" wife insisted on it.

"Surry", later referred to as the Surrey)
Transport: 443 tons. Square rigged ship with an overall length of 117 ft. 6 ins., a breadth above the gunwales of 29 ft. 6 ins, and a draught, when loaded, of 18ft. The vessel was copper-sheathed, and had quarter galleries, with a Minerva bust for a figurehead. She carried a crew of thirty and was armed with fourteen cannons.
When the Surry was originally built at Harwich in 1811 she had two decks with a height between decks of 5ft. 8 ins. However, about 1818, she must have received a major refit - the Shipping Registers after 1819 record the vessel as having three decks.

The Surry had one of the longest careers as a convict transport and she was the only transport to make 11 passages to Australia. She completed her last voyage on reaching Hobart on 11 August 1842.

The Surry landed 2,177 male and female convicts in Australia and lost 51 men and one woman during her various passages, 36 of the men dying during her first and most notorious voyage in 1814 under the command of James Patterson.

Thomas Raine commanded her for the next three voyages (1816, 1819, 1823); he was succeeded by Charles Kemp for four voyages (1829, 1831, 1833, 1834); he was succeeded by George Sinclair as her Master on the ninth and tenth voyages (1836, 1840) and on the last voyage (1842) she was commanded by Henry Innott.

Isaac was first convicted of Burglary in 1821. He married Hannah Holmes in 1822 and after a further conviction for Burglary was sentenced to death on 20th July1822. This sentence was presumably reduced to Transportation for Life and so Isaac was Transported on the convict ship "Surrey", leaving London on 2nd October 1822 and arriving in New South Wales on 4th March 1823. He was a Labourer by occupation and eventually received a conditional Pardon in 1841. He then married Margaret Jane Kelly on 27th September 1841 in Broulee, New South Wales. This was obviously a Bigamous Marriage as his first wife was still living but the rules were often broken in the case of Convicts. (See Notes). They had 3 sons and 5 daughters.

1823
ISAAC Jessop

Isaac was baptised 19/10/1796 at Mirfield near Huddersfield, the son of Joseph and Rebecca Jysop.

The children of that family, all baptised at Mirfield Hopton Independant church were:

Abraham baptised 5/12/1794.Sarah" 5/12/1794.Isaac" 19/10/1796.Jacob" 17/5/1798.Rebecca" 24/12/1799.Rachel" 25/11/1802.

Isaac's first brush with the law was in 1821, when he was tried at the Rotherham Sessions on the 18th of July. The following is the court record of the case: No.17, John Grundy & Isaac Jessop.

AND that John Grundy late of Wakefield in the West Riding of the county of York labourer and Isaac Jessop late of Wakefield aforesaid labourer on the seventeenth day of May in the second year of the Reign of our Sovereign Lord George the Fourth by the Grace of God of the United Kingdom of Great Britain and Ireland King Defender of the Faith with force and arms at the parish of Featherstone in the West Riding of the County of York one pair of woollen cord breeches of the value of sixpence and one other pair of breeches of the value of four pence of the goods and chattels of one Thomas Whitlam then and there found did then and there feloniously steal take and carry away against the peace of our said Lord the King his Crown and Dignity. And the Jurors aforesaid upon the Oath aforesaid...... ditto

Put -John Grundy - guilty -. To be confined in the House of Correction one month to hard labour. Isaac Jessop - NOT GUILTY Witnesses - Henry Whitlam, Francis Stones, Joseph Peace.

The following year Isaac was not so fortunate and on 20/5/1822 was convicted of Burglary at West Riding summer assizes, York, receiving a LIFE sentence.

His description at the time was: Native Place Huddersfield; aged 26 years; height 5'5+1/2"; complexion brown, hair brown, eyes grey. Occupation: farmer.

Isaac was transported to Australia, arriving at Sydney on the ship "SURREY" on the 6th March 1823.

In the 1828 census, he was recorded as working as a stockman for Mr. Coghill at Kirkham, Cooke - a Government Servant, aged 30 yrs, Protestant, with a Life sentence. John Coghill aged 43 years had arrived in Australia only two years before, arriving on the ship "MANGLES" in 1826 and had taken up land at Kirkham, County of Cooke. He later stood for parliament, announcing his intention in the Sydney Morning Herald of Saturday January 21st 1843.-"To the Independant electors of the counties of St.Vincent and Murray. Gentlemen - Presuming that the counties of St.Vincent and Murray will return a member of the New Legislative Assembly, I beg to announce to you my intention of offering myself as candidate for the honour of becoming your representative. The grounds upon which I venture to lay claim to this mark of your confidence, are the fact of my having resided in the colony for the last 17 years, and having thus had an opportunity of becoming intimately acquainted with its interests etc. etc. ....signed John Coghill.

Isaac gained his ticket of leave 30/6/1835, while living at Upper Minto. By 1841 he was living at Kiora on the south coast and it was here that he married Margaret Kelly on the 27th September 1841 in the Presbyterian church - the minister being Geo. McFie of Borgalia, Broulee. Witnesses to the marriage were William Carroll and Helen R Campbell. Isaac was then 46 years old and living at Kiora, Margaret, a spinster was from Mungoryrie.

The children of Isaac and Margaret (Kelly) were:

Sarah Maryborn 1842, Kiora. married Samuel KIMPTON in 1857.Rebeccamarried 11/7/1844, bap 26/8/1844. Presbyterian at Kiora, parish of Broulee. married Robert GRAY 21/11/1862 at Moruya.Isaacborn 25/6/1846.. married Maria Charlotte GILLESPIE 1873.. died 4/6/1922 aged 77yrs..Margaretborn 11/6/1848,bap 5/11/1848, R C. married 1) William SOUTHAM 1866 -d.1867. 2) William HICKS 14/3/1868 at Tuross Saw Mills.. Witnesses:Elizabeth Eales and George Henry Goodin. died 5/11/1917, Murwillumbah..Josephborn 1850, died 17/4/1873 accidentally shot at Tuross Saw Mills.Rachelborn 1852, married Robert MAIN.

It is not known when and where Isaac and Margaret died and were buried, as no records of these events have been found. It is possible that Isaac died about this time, in his late 50's, as a marriage has been found in the Wesleyan Church dated 27th August 1855 between a Margaret Jesop and William Green, both of Kiora. They were married by James Somerville of Moruya, witnesses being Richard John Foreman and Mary Foreman who were also both from Kiora. However, it is not certain who this Margaret Jessop was.

Most of Isaac and Margaret's family settled on the south coast of New South Wales and are well known in that area. There have been some noted musicians amongst them, the Jessop Jazz Band of the mid 1900's were a very popular group which performed for dances in the area.