Hall, Thomas, 1603-?

Among Virginia’s earliest records is a court case describing the first known intersex person in British North America. In 1629, a servant known as Thomas Hall was taken before the Quarter Court at Jamestown. Hall’s ambiguous gender had become a matter of contention; the court minutes record the attempts of Hall’s masters, neighbors, and the colonial government to determine their “true” sex. In the process of hearing the case, the court inadvertently created a remarkable document that preserves the voice of a gender nonconforming, intersex person in 1620s Virginia. 1 The most surprising element of Hall’s story is not that intersex people existed in colonial Virginia, but that details of Hall’s life were preserved in the historical record.

The original minutes of the Hall case are not held at the Library of Virginia; in fact, they only survived through a series of chance events, few of which can be chalked up to the diligence of archivists. Most records of the colonial Quarter Court, later known as the General Court, were destroyed in the 1865 Richmond Evacuation Fire. However, the oldest Quarter Court minutes had long before left official custody, reappearing in Thomas Jefferson’s library in the early nineteenth century. Henry Read McIlwaine, who served as Virginia state librarian in the early twentieth century, believed that Jefferson had purchased the Quarter Court minutes from the estate of Peyton Randolph after Randolph’s death in 1775.2 If this is true, then one of the Randolphs, a prominent Virginia family, appears to have borrowed the minutes from the colonial government and never bothered to return them.

After a long period of n We know quite a bit about Hall’s early life from the testimony recorded in the Quarter Court minutes. Hall gave their birth name as “Thomasine Hall” and said that they were born “at or neere” Newcastle upon Tyne in northeast England.9 On January 2, 1603/04, a “Thomasin Hall” was baptized at All Saints Church in Newcastle, the daughter of Raph Hall, a “colyer,” or someone who worked with coal.10

Hall spent their childhood in Newcastle and was raised female. As an adult, Hall chose to “perform his identity serially as either male or female,” as Kathleen Brown puts it.11 As we have only partial knowledge of how Hall understood their own gender, I will use “they/them” pronouns and follow Julie Richter in referring to them as “Thomas/in Hall.”12

At age twelve, Hall was sent by their mother to live in London with an aunt. Julie Richter summarizes this period of their life as one during which they would have learned skills associated with female labor. As a young person, Hall’s assigned gender would determine the types of skilled labor they learned to perform, as well as their behavior, dress, and legal rights and responsibilities. In 1625, Hall’s life was disrupted by Britain’s involvement in ongoing European wars. A brother of Hall was pressed into service in a failed naval expedition against Cádiz, Spain. Hall decided to follow their brother into military service. The Quarter Court recorded that Hall “cut of his heire and Changed his apparell into the fashion of man” before participating in the (similarly failed) 1627 Siege of Saint-Martin-de-Ré in France. 13

It’s unclear what compelled Hall to leave England, although their brother’s departure seems to have been a primary factor. Certainly they don’t seem to have been daunted by the novelty and danger that accompanied their travels to the Continent and Virginia. We can hazard a guess that Hall’s intersex condition made it easier for them to change their gender presentation. Based on descriptions of Hall’s anatomy that appear in the court minutes, Mary Beth Norton concludes that Hall “probably fell into that category of human beings who appear female in infancy but at puberty develop what seem to be male genitalia.”14

After returning from war, Hall settled in the English port town of Plymouth, where “hee changed himselfe into woemans apparell and made bone lace and did other worke with his needle.”15

Mary Beth Norton notes that “Plymouth was one of the major points of embarkation for the American colonies,” and, indeed, after a short time in Plymouth, Hall decided to emigrate to Virginia, likely as an indentured servant.16 When Hall left, they chose to do so in “the habit of a man.”17

Kathryn Wichelns describes Thomas/in Hall as “tactically and fluidly transgender,” altering their gender presentation depending on their circumstances.18 We can’t know the precise factors that shaped Hall’s gender presentation, but what’s clear is that Hall made a deliberate series of choices about how to present themselves. European people were broadly aware that intersex people existed, but this knowledge did not mean that gender nonconforming behavior was condoned. Maayan Sudai cites the thirteenth-century English treatise Bracton, which stated that “a hermaphrodite is classed with male or female according to the predominance of the sexual organs.”19 Even if a person’s sex was ambiguous, their gender presentation was expected to conform to a single, stable binary gender.

In Virginia, Hall found themselves in a young colony whose history was defined by political tumult, marked social inequality, and violent conflict with Indigenous peoples. Hall became a servant to two men, John Tyos and Robert Eyres, who resided at Treasurer’s Plantation. At some point after Hall’s arrival, they resumed dressing as a woman, and Tyos told neighbors he believed his servant was female. Julie Richter has suggested that Hall adopted female dress to fulfill a need for female labor in the new colony (perhaps avoiding work in the tobacco fields).20 Other historians have interpreted Hall’s obscure statement that they dressed as a woman “to gett a bitt for my Catt” as a reference to sex work.21

Regardless of Hall’s motivations, community members began to question their gender. Rumors circulated that Hall was sexually involved with a female servant known as “great Besse,” which Hall seems to have denied.22 The accusation likely fueled scrutiny of Hall’s gender, as the crime of “fornication” only criminalized intimacy between men and women—sexual relationships between women were not subject to prosecution under English common law.

When questioned by landowner Nathaniel Basse, Hall was clear about who they were, explaining that “hee was both man and woeman.”23 This remarkable statement implies that Hall understood themselves to defy binary sex categories. Hall’s bold self-identification and gender performances stood in sharp contrast with their class status, which was one of profound disempowerment. Indentured servants existed in temporary bondage to their masters. Work conditions in Virginia made matters worse, as Warren M. Billings describes: “Planters could be brutal, and, given Virginia’s shortage of women, they sometimes subjected their maidservants to sexual abuse. Even under the best of conditions, tobacco farming was an arduous routine[…] Loneliness broke the spirit, work weakened the body, disease contributed to ill health, and many servants died before they fulfilled their indentures.”24 Hall’s gender presentation didn’t offer an escape from servitude, but it did allow them to exercise limited control over the types of labor they engaged in.

Hall’s gender continued to be disputed, both in the households of Tyos and Eyres and afterward, when their indenture was transferred to John Atkins of Warrosquyoake.25 On four separate occasions in 1628/9, Hall’s genitals were inspected in order to determine their sex. These searches were primarily conducted by groups of women; women were often deputized to search the bodies of other women to gather evidence for courts. On one occasion, two men encountered Hall on their own and “threw the said Hall on his backe” in order to conduct a search.26 We can’t know how Hall felt about this period of verbal and physical scrutiny. Mary Beth Norton notes that “the absence of a sense of personal privacy” would have shaped Hall’s experiences of the searches.27 Nevertheless, Hall may have felt worried, annoyed, or distressed, particularly as their gender self-determination was being threatened. We can acknowledge that some or all of these examinations would be viewed as assault in a modern context, even if they were sanctioned by legal and social custom at the time.

Based on physical evidence, Hall’s female neighbors believed that they were a man, but local men were divided. Hall was first ordered by Nathaniel Basse to dress as a woman, then ordered by their master, John Atkins, to dress as a man. After the final search of Hall’s body, Atkins told Basse “that the said Hall was founde to bee a man and desired that hee might be punished for his abuse.” 28 Hall’s “abuse” may have been the crime of fornication, a transgressive gender presentation, or both; at any rate, Atkins’ complaint seems to have resulted in Hall’s trial.

On March 25, 1629, John Atkins and another man, Francis England, gave depositions concerning Thomas/in Hall before acting Royal Governor John Pott. Hall appeared before the Quarter Court on April 8 to receive judgment. The Quarter Court consisted of the Governor and the Governor’s Council. The court minutes do not document whether Hall was being charged with a specific crime, nor do they describe the process by which a verdict was determined.

Hall’s trial was shaped by its colonial setting. English common law was in force in Virginia, but Oliver Chitwood’s 1926 book Justice in Colonial Virginia notes that “a certain amount of elasticity had to be given to the laws of England before they could be adapted to the differing conditions in Virginia. Besides, a legal education was not a requisite qualification for membership in the council, and so cases must sometimes have arisen in which the judges did not know how to apply the common law.”29

All of this goes some way toward explaining the unusual outcome of Hall’s trial. Rather than assigning Hall a binary gender, the minutes contain the following statement: “It shall bee published in the plantation where the said Hall lyveth that hee is a man and a woeman.” The court went on to order “that hee shall goe Clothed in mans apparell, only his head to bee attired in a Coyfe and Croscloth wth an Apron before him.”30 Hall was determined to be both male and female and instructed to dress in the clothing of both genders.

The court’s defiance of the gender binary flew in the face of the legal, social, and religious customs of the time. Elizabeth Reis reads its decision as a new form of social control: she writes that the court “chose the sanction, I believe, to preclude further acts of deception, to mark the offender, to warn others against similar abomination, and to reduce the possibility of Hall’s sexual coupling.”31 That said, the defiance of legal precedence may not have been intentional.


H.R. McIlwaine, Minutes of the Council and General Court of Colonial Virginia (Richmond, VA: The Colonial Press, 1924), 194–195.

Sudai suggests that “Pott simply was not aware of the rule that required classifying hermaphrodites according to their most ‘dominant’ sex.”32

Hall was ordered to make subsequent court appearances in order to ensure that they were following the ruling, but after 1629, they disappear from the minutes, perhaps in part due to record loss. Reis comments, “We can only hope that s/he worked off the indenture, changed name and location, eschewed the farcical costume, and resumed life as whichever gender(s) s/he preferred.”33

Reading Thomas/in Hall
In her 2014 article about Hall, Kathryn Wichelns warns against anachronistic readings of Hall’s life. “[I]nsufficient critical distance” and a desire to make Hall’s story “intelligible,” she argues, robs Hall of their complexity.34 When we talk about Hall, Wicheln entreats us to choose our words carefully.

There’s so much we can’t know about Thomas/in Hall: their understanding of gender and the gendered world they lived in, and why they chose different gender presentations at different periods of their life. I hope we can find meaning in Hall’s story without simplifying it beyond recognition. Thomas/in Hall is evidence that there have always been people who have actively defied the gender binary. Their life serves as a potent example of how identity operated in the novel social landscape of colonial Virginia, where their quiet rebellion seems to have provoked those in power to invent new, if idiosyncratic, methods of social control.

In this light, Thomas/in’s story strikes me as a particularly Virginian story, an early example of a community “negotiating a new set of colonial meanings for social distinctions,” as Kathleen Brown puts it. 35 After Hall disappears from the historical record, these uneasy negotiations would continue to shape the contours of gender, race, and class in the Old Dominion.

Thomas Hall, born Thomasine Hall was an English intersex person and servant in colonial Virginia whose wearing of female attire and, on subsequent investigation, a liaison with a maid provoked public controversy in 1629.[1] Hall was subjected to a physical inspection, and the case reached the Quarter Court at Jamestown, which ruled that Hall was both a man and a woman and must dress in male and female clothing simultaneously.

Hall's given name is typically written as "Thomas(ine)" or "Thomas/ine" in scholarly literature on the case. According to Hall's own account, Hall was born and christened Thomasine Hall at All Saints' Church, Newcastle upon Tyne in England.[1] Hall was raised as a female[2] and performed traditional women's crafts, such as needlework.[2] At the age of twelve, Hall was sent to London to live with an aunt, and lived there for ten years and observed the popularity among the aristocracy of crossover male and female fashion. These trends may have influenced Hall to break away from social norms.[2]

As a young adult in the early 1620s, Hall decided to adopt a man's hairstyle and "changed into the fashion of a man" in order to follow a brother into the all-male military service.[2][1] Hall then served in the military in England and France.[2] Hall returned to Plymouth, and earned a living for a time by making bone lace and other needlework,[1] reverting to the lifestyle of Thomasine.[2]

Resettlement
Around 1627, Hall donned men's clothing again, left England, and settled in Jamestown as an indentured servant.[1][2] Pursuing a different work opportunity, Hall relocated to the small settlement at Warrosquyoacke, Virginia, a village of likely fewer than 200 people (during the 1620s), founded on the site of an old Indian village along the James River, and home of two tobacco plantations.[2] Tobacco planters in need of workers preferred hiring men.[2]

In early 1628, Hall appears to have been arrested on a charge of receiving stolen goods,[3] though there is a slight doubt about whether this is the same Thomas Hall.[2] Hall was living with a John and Jane Tyos. It was claimed that Hall and the Tyoses had encouraged a neighbor to commit theft and sell the stolen goods to them. The property was found in the Tyoses' house.[3]

Local controversy
Hall was not strict about presenting consistently as male in this new environment. Hall occasionally wore female clothing, which confused neighbors, masters, and captains of plantations. When queried about wearing women's clothes, Hall replied: "I goe in womans apparel to get a bitt for my Catt".[2] It is unclear what Hall meant by this: scholars have suggested either that Hall dressed as a woman in order to seduce women, or in order to have sex with men.[3] Sometimes, even when presenting as Thomasine, Hall was rumored to be having sexual relations with women.[citation needed]

Stories spread that Hall had sexual relations with the maid nicknamed "Great Besse", who worked for the former governor of Virginia, Richard Bennett.[4] Hall's gender was thus an issue of criminal responsibility; as a male, Hall could be prosecuted for sexual misconduct with a servant.[4] Hall accused a woman called Alice Long of spreading the rumor, but Long said that the story originated with a servant of the Tyoses, Hall's previous employers.[3]

Residents of Warrosquyoacke claimed that Hall's changes of dress and sexual relations with members of both sexes were causing disorder.[citation needed] Lacking a local court or church to determine gender, the authority of the distinction fell to the laypersons, more specifically the married women of the village, who claimed experience with interpreting the female body.[2] Three women–Alice Long, Dorothy Rodes, and Barbara Hall–decided to examine Hall's anatomy.[5][verification needed][2] More than once, they entered Hall's home while Hall slept and observed Hall's genitalia. They decided that Hall lacked a "readable set of female genitalia" and persuaded Hall's plantation master, John Atkins, to confirm their determination.[2][verification needed] Atkins had previously claimed that Hall was female but, after inspecting Hall during sleep, agreed that Hall was male, having seen "a small piece of flesh protruding from [Hall's] body".[2] Hall apparently claimed also to have female anatomy, described as "a peece of an hole", but Atkins and the women said that they could find no evidence of this.[2]

Atkins ordered Hall to wear exclusively male clothing and urged the most prominent tobacco planter in the village, Captain Nathanial Bass, to punish Hall for "abuse". Bass confronted Hall and bluntly asked if Hall was a man or a woman. Hall claimed to be both, "although he had what appeared to be a small penis".[2] Hall said that it was only an inch (2.5 cm) long and was not functional. Male incompetence was considered sufficient to determine female sex during the early modern colonial period, and Bass decided that Hall was not properly a man.[2] This meant that Hall could not be prosecuted for debauching Besse.

The Quarter Court
The villagers decided to take the case to the Quarter Court of Jamestown, just as Christians in Europe did in similar situations.[6][verification needed] As described by Reis, a "solution consistent with scripture-based laws as interpreted by Talmudic commentaries and consonant with early modern European customs" was to make an individual choose either male or female gender.[1]

Hall's case reached the Quarter Court on April 8, 1629. Governor John Pott presided and the court heard from several witnesses, as well as from Hall. In a departure from similar European cases,[1] the court ruled that Hall had a "dual nature" gender, or what modern society classifies as intersex: "hee is a man and a woeman". Before Hall's time, any individual determined by court to be "man and woman" was forced to adopt either a permanent male or female identity, based off of their predominant genitalia. Due to the intense ambiguity of Hall's body and lifestyle, the court could not determine if they were more male or female and required them to dress in clothing that symbolized this confusion. Hall was forced to "goe clothed in man's apparell, only his head to bee attired in a coyfe and crosscloth with an apron before him". While removing Hall's autonomy regarding their appearance was certainly a punishment, it seems that the community was more focused on preventing Hall from having sexual relations with people who were confused by their ambiguity. The primary concern of the court at the time appears to have been the possibility of same-sex intercourse, despite the confusion surrounding what Hall's sex might actually be.[7]

Nothing further is known about Hall's life or about how long the dual-gendered clothing rule was applied.[a]

Significance
Kathleen M. Brown states that, in the early modern period, medical theorists and scientists worked under a framework that posited that the sexes were potentially mutable; women were not a separate sex but "an imperfect variant of men".[2] They believed that male organs were tucked inside of women because they did not have enough heat to develop external genitalia.[2] They believed that strenuous physical activity or even "mannish behavior" could cause testicles to exit from inside the vagina, explained as "evidence of Nature's unerring tendency toward a state of greater perfection".[2] This left the work of defining the sexes to other societal institutions, which replied on "performing" gender through consistent dress, names, occupations, and sexual relationships.[2] Hall, defying these practices by using the clothes and names of both, has been cited as an early example of "a gender nonconforming individual in colonial America".[8][9][verification needed]

However, early common law, consistent with canon law, held that the sex of an intersex individual (formerly termed an hermaphrodite) depended on the sex that predominates. The 12th-century Decretum Gratiani states that "Whether an hermaphrodite may witness a testament, depends on which sex prevails",[10][verification needed] while Henry de Bracton's De Legibus et Consuetudinibus Angliae ("On the Laws and Customs of England"), c. 1235,[11][verification needed] states that "A hermaphrodite is classed with male or female according to the predominance of the sexual organs."[12][verification needed]

Reis states that the novel solution required by the court was a deliberate form of punishment, "not to endorse uncertainty, but to preclude future acts of deception, to mark the offender, and to warn others against similar abomination. The dual-sexed Hall embodied an impermissible category of gender."[1] She states that making Hall a public spectacle would have been devastating and limiting of Hall's personhood, and this radical act contradicts not only earlier legal accounts, but also later legal and medical responses to the state of being intersex ("hermaphroditism" then).