"John Howard ... out of his time ... and Entending as fast as he

can to settell himselfe: so to liue under family gouernment.

"Rober Williams...."--_MSS. Files of the County Court for

Middlesex_, Dec. 1668.]

[Footnote 470: The selectmen of "Billerica" thus "strove to free

themselves of all blame":

"To the Hon^rd Court....

"Whereas Aaron Jaquese, a single prson liuing in our towne, who

hath for sometime liued from vnder family gouernment contrary

to Court Order, being su[=m]uned by y^e Constable to appear

before this Honored Court: These are to enforme ... that ...

Aaron Jaquese hath bin much complained of by seuerall of our

inhabitants, for negligence in his calling, hauing obserued him

much giuen to idleness; also shifting from house to house, &

vnfaithfull to his Couenants & promises with such prsons, with

whom he has engaged service, vpon which Complaints the selectmen

haue endeauered acording to law, to place him foorth in service,

but ca[=n]ot effect it. Our Humble request to this Hon'd Court

is, that they would please to despose of ... Aaron to service,

or otherwise to order something concering the same as may be

effectuall to render him to a more regular Course of life, as y^e

wisdome of this Court shall judg best. So shall we pray &c.

Your humble seruants."

The _MSS. Files of the County Court for Middlesex_, April, 1669,

also contain a certificate of the selectmen of Charlestown to

the effect that John Swain had given satisfaction for orderly

behavior.]

In a society where marriages were formed very early, girls often

wedding at sixteen or less, and where widows were wooed almost at

the bier of the dear departed,[471] it is perhaps not surprising if

"old maids" were ridiculed and sometimes despised. A woman became an

"antient maid" at twenty-five.[472] In an often quoted passage of

his _Life and Errors_, John Dunton thus praises a woman who remained

single, not from "necessity," but from "choice," and who knew that

time is a "dressing-room for Eternity, and therefore reserves most

of her hours for better uses than those of the Comb, the Toilet, and

the Glass":

"It is true an _old_ (or super-annuated) maid in Boston is thought

such a curse as nothing can exceed it (and look'd upon as a _dismal

spectacle_); yet she, by her good-nature, gravity, and strict

virtue, convinces all (so much as the fleering Beaus) that it is

not her necessity, but her choice, that keeps her a Virgin. She is

now about thirty years (the age which they call a _Thornback_), yet

she never disguises herself, and talks as little as she thinks of

Love. She never reads any Plays or Romances, goes to no Balls, or

Dancing-match, as they do who go (to such Fairs) in order to meet

with Chapmen. Her looks, her speech, her whole behaviour, are so

very chaste, that but once (at Governor's Island, where we went to

be merry at roasting a hog) going to kiss her, I thought she would

have blushed to death."[473]

[Footnote 471: Thus Judge Sewall went home with Widow Denison

from her husband's funeral and "prayed God to keep house" with

her: _Diary_, in 5 _Mass. Hist. Coll._, VII, 179 (March 26,

1718). _Cf._ also EARLE, _Customs and Fashions_, 45, 46.

"The colonists married early and they married often. Widowers and

widows hastened to join their fortunes and sorrows. The father

and mother of Governor Winslow had been widow and widower seven

and twelve weeks respectively, when they joined their families

and themselves in mutual benefit, if not in mutual love. At a

later day the impatient governor of New Hampshire married a lady

but ten days widowed."--EARLE, _op. cit._, 86. On early marriages

see WEEDEN, _Ecc. and Soc. Hist. of N. E._, II, 541, 739.]

[Footnote 472: EARLE, _op. cit._, 38.]

[Footnote 473: DUNTON'S _Life and Errors_ (Westminster, 1818),

I, 102, referring to Boston in 1686. In DUNTON'S _Letters from

New-England_ (ed. by WHITMORE for the Prince Society, Boston,

1867), 99, where this passage appears in a modified form, the age

of a "thornback" is reduced to twenty-six years. The paragraph is

also quoted by WEEDEN, _op. cit._, I, 299, 300; and EARLE, _op.

cit._, 38, 39.]

But bachelors and "thornbacks" were not the only people who caused

the lawmaker anxiety. He kept a sharp eye on married persons

living away from their mates. An act of the Massachusetts general

court, in 1647, after reciting that diverse married persons are

living in the jurisdiction, whose wives or husbands are in England

or elsewhere, and who are guilty of making love to women, of

attempting marriage or even attaining it, or are under "suspition

of uncleannes"--the vice which seems to have sorely vexed the good

people of those days--and all of whom are a great dishonor to God

and a reproof to religion, commonwealth, and church--orders that

every such person shall be incontinently sent back "by y^e first

oportunity of shiping," unless present on transient business or

to "make way" for the family to come over.[474] Such complaints

were by no means groundless and the courts were often called upon

to execute the law. Under the circumstances bigamy was easily

committed, though not always permanently concealed. On December 3,

1639, the pretended marriage of James Luxford was declared void;

"all that hee hath" was given to his victim; and he himself was

fined, set in the stocks, and ordered "sent away to England by the

first opportunity."[475] In 1644 the "marriage of John Richardson to

Elizabeth Frier was annulled upon proof that he had a former wife

living in England."[476] Henry Jackson--whose case seems to justify

the act of 1647--was presented in 1672-73 "for lying, in saying

he was single and attempting marriage with several," though since

confessing that he has a wife beyond the sea; "for living from under

family government; and for carrying a fire brand at night near a

hay stack;" on all of which counts, we are prepared to hear, he got

twenty stripes, had to pay costs, and was ordered away to "England

by the next ship."[477]

[Footnote 474: _Mass. Col. Rec._, II, 211, 212; WHITMORE, _Col.

Laws of Mass._ (1660-72), 172; _ibid._ (1672-86), 216.]

[Footnote 475: _Mass. Col. Rec._, I, 283.]

[Footnote 476: _Ibid._, II, 86.]

[Footnote 477: _MSS. Records of the County Court of Suffolk_,

113.]

More numerous are the cases of "living apart." For example in 1637

the general court decreed that Isaac Davies should be sent home to

his wife in England.[478] Three years later "Willi Wake" in like

manner was advised to seek his consort.[479] Edward Iron in 1651

"upon promise to take some effectual course to send for his wife now

in England" was "granted liberty to abide in the country until the

next return of ships." Should his attempt fail, then he was "ordered

to depart out of this jurisdiction by the next opportunity."[480]

For similar absence from his spouse James Underwood in 1654 was

fined at Salem.[481] In 1663 for the same offense Christopher Blake

was presented by the grand jury of Suffolk, although in his petition

he avers that for three years he had "been desirous of getting

his wife across but she refused to come;" and that he had never

"presented himself as a single man, but always openly manifested

the true state of his condition." Accordingly the general court

ordered the prosecution "stayed for a year."[482] In 1671 Paul Hall,

presented in the same county, "appeared and declared he was informed

his wife was dead." The court, being skeptical, commanded him to

"repair to the last place of her abode or bring in a certificate

of her death."[483] Delinquent wives were looked after with equal

vigilance. In 1668 the constable of Boston is ordered to summon

"before the county court two women and one man for living apart

from their spouses contrary to law."[484] A presentment of Sarah

Pickering failed in 1674 because she produced evidence that her

husband had renounced her.[485] Even when both partners were in the

jurisdiction the law was not less harshly administered. On June

17, 1672, for "disorderly living apart," Michael Smith and wife,

"inhabitants of Charlestoun" were "admonished and ordered to pay

costs."[486] The case of "Abr. Hagborne" in 1663 is more remarkable.

Although he had come to the colony twenty-two years before; had

lived contentedly with his wife for fourteen or fifteen years until

she "did depart" for England; had sent for her to return home and

provided for her transportation, "whereby the innocence of Living

Apart is on your peticoners part;" and "had no idea the law against

living apart would apply to the known settled inhabitants, brethren

and freemen whose wives unnaturally desert them;" yet the county

court "was pleased to require him to depart the Countrie & to

repayre vnto his wife." So he "humbly petitions" the general court

that he may not be compelled to return to England and that he may

"not be put vpon [religious] temptacoñs or aboue his strength or

any kind of iniun[~cc]on [injunction] of going to Serue other Gods;"

but may be "allowed to continue his Abode here ... vnder the Shadow

of that happie Gouernment in Co[=m]onwealth and Churches ... those

few days of his pilgrimage that remayne." A gracious answer, it

is perhaps needless to add, was the meet reward of so just and so

skilful a prayer.[487]

[Footnote 478: _Mass. Col. Rec._, I, 198.]

[Footnote 479: _Ibid._, 311.]

[Footnote 480: _MSS. Records of the County Court of Middlesex_,

I, 18. Apparently Edward's attempts were a failure; for on Oct.

4, 1653, he was "granted liberty to use what more effectual means

he may or can to send for his wife from England": _ibid._, I, 32.]

[Footnote 481: _Mass. Col. Rec._, III, 349, 350. But on petition,

in order to present further testimony, the general court granted

a respite.]

[Footnote 482: _MSS. Early Court Files of Suffolk County_, No.

531. This case is also partially reported in _Mass. Col. Rec._,

IV, Part II, 84; and quoted in SHIRLEY, "Early Jurisprudence of

New Hampshire," _Procds. New. Hamp. Hist. Soc._ (1876-84), 310.]

[Footnote 483: _MSS. Records of the County Court of Suffolk_, 9.]

[Footnote 484: _MSS. Early Court Files of Suffolk_, No. 867.]

[Footnote 485: _MSS. Records of the County Court of Suffolk_,

279.]

[Footnote 486: _MSS. Records of the County Court of Middlesex_,

III, 63.]

[Footnote 487: _MSS. Early Court Files of Suffolk_, No. 527. For

similar legislation see _New Haven Col. Rec._, II, 600; TRUMBULL,

_Blue Laws_, 243.]

In like spirit single women and wives in the absence of their

husbands were forbidden to "lodge any inmate or sojourner," except

with the approval of the selectmen or other magistrates.[488] Of

course, these were pioneer days. The peace of the settlements was

probably disturbed by loose and riotous adventurers, outcasts from

the society of the Old World. Doubtless these measures, aside from

religious motives, were in some degree useful police ordinances; as

were also those prohibiting the husband from beating his wife, and

the wife from striking her spouse.[489]

[Footnote 488: _Mass. Col. Rec._, V, 4; SHIRLEY, _Early

Jurisprudence of New Hamp._, 310, 311. The harboring of

"strangers"--and "stranger" might be a father, daughter, or son

from a neighboring town--gave the good people of the colonies a

great deal of trouble. See the illustrations in WEEDEN, _Ecc. and

Soc. Hist. of N. E._, I, 272; and HOWARD, _Local Const. Hist._,

I, 87, 88, where the town records are cited.]

[Footnote 489: WHITMORE, _Col. Laws of Mass._ (1660-72), 51, 171;

_ibid._ (1672-86), 101. _Cf. Mass. Col. Rec._, III, 212 (1650).

In 1638 John Emerson, of Scituate, was tried before the general

court for abusing his wife: _ibid._, I, 232; the same year for

beating his wife, Henry Seawall was sent for examination before

the court at Ipswich: _ibid._, 233; and in 1663 Ensigne John

Williams, of Barnstable, was fined by the Plymouth court for

slandering his wife: GOODWIN, _Pilgrim Republic_, 596.

It would seem that the husband, too, really needed some legal

protection. The early court records disclose the sad fact that

husband-beating was painfully frequent in colonial times. Thus

in Plymouth jurisdiction Joan, the wife of Obadiah Miller of

Taunton, was presented "for beating and reviling her husband, and

egging her children to healp her, bidding them knock him in the

head, and wishing his victials might [~c]oake him."--_Plym. Col.

Rec._, III, 75.

The bad practice was not unknown among the "good wives" of

Salem. For example, in 1637, at the fifth quarter court, it

was decreed: "Whereas Dorothy the wyfe of John Talbie hath not

only broak that peace & loue, w^{ch} ought to haue beene both

betwixt them, but also hath violentlie broke the king's peace, by

frequent Laying hands vpon hir husband to the danger of his Life,

& Condemned Authority, not co[=m]ing before them vpon command,

It is therefore ordered that for hir misdemeaner passed & for

p^rvention of future evills that are feared wilbe co[=m]itted

by hir if shee be Lefte att hir Libertie. That she shall be

bound & chained to some post where shee shall be restrained of

hir libertye to goe abroad or comminge to hir husband till shee

manefest some change of hir course.... Only it is pmitted that

shee shall come to the place of gods worshipp, to enjoy his

ordenances." Later "Dorothy" was punished again for a similar

offense: _Hist. Coll. Essex Inst._, VII, 129, 187. _Cf._ HOWARD,

_Local Const. Hist._, I, 326, 327. For further illustrations see

WEEDEN, _Ecc. and Soc. Hist, of N. E._, I, 294.]

But the colonists went farther and prescribed the death penalty

for disobedience to parents, following the precepts of the Mosaic

law.[490] Furthermore, they attempted to regulate courtship by

statute, in a way which, however wholesome, would scarcely be

relished by the young men and maidens of our generation. Thus the

general court of Plymouth prohibits "any motion of marriage to any

man's daughter or mayde servant" without having "first obtayned

leaue" of the parents or master under penalty of fine and corporal

punishment in the discretion of the bench. But appeal is allowed

to the magistrate, when the master "through any sinister end or

couetous desire," witholds his consent.[491] The courts were not

wholly without business growing out of this legislation, as appears

from illustrations collected by Mr. Goodwin. "In 1652 Jonathan

Coventry was indicted for 'making a motion of marriage' to Katherine

Bradbury, servant to Mr. Bourne, of Marshfield, without the latter's

consent.[492] Coventry left the Colony before arrest.... In 1648

Thomas Dunham was ordered to abstain from visiting or sending to

Martha Knott, of Sandwich, from October 4 till the first Tuesday

of December, that the Court may better learn of his pretended

contract, unless the Governor, on the clearing of things, give him

leave. A romantic case was that of Governor Thomas Prence against

Arthur Howland, Jr., nephew of the Pilgrim.[493] The tolerant course

of the elder Arthur Howland toward the Quakers had earned Prence's

hearty ill-will; and when, in 1660, he found that Arthur, Jr., had

wooed his daughter Elizabeth, he had the swain before the General

Court, where he was fined £5 for making love without her father's

permission. The couple remained constant, for in 1667 the irate

Governor once more brought up young Arthur, who was again fined £5

because he had 'disorderly and unrighteously endeavored to obtain

the affections of Mistress Elizabeth Prence,' and was put under bond

of £50 to 'refrain and desist.' But Prence, like Canute, was unable

to control the forces of Nature. This action was in July; but before

the next spring the imperious Governor seemed to have been forced

to capitulate, for Arthur and Elizabeth were united."[494] On the

other hand, the right of a lover to appeal to the magistrate, in

case his "motion" were hindered through "sinister end or couetous

desire," was occasionally of practical value. In 1646, for instance,

Richard Taylor complained to the general court of Plymouth that he

was prevented from marrying Ruth Wheildon by her father Gabriel;

but when before the court Gabriel yielded and promised no longer

to oppose the marriage.[495] The records show that parents might

be held accountable for "miscarriages" resulting from unreasonable

opposition.[496]

[Footnote 490: WHITMORE, _Col. Laws of Mass._ (1660-72), 129;

_New Haven Col. Rec._, II, 578, and TRUMBULL, _Blue Laws_, 201;

_Conn. Col. Rec._, I, 515, and TRUMBULL, _op. cit._, 69; _New

Hamp. Hist. Coll._, VIII, 12; SHIRLEY, _Early Jurisprudence of N.

H._, 311; _Andros Tracts_, III, 13. _Cf._ a similar law for early

New York: _Duke of Yorke's Laws_, 15.]

[Footnote 491: _Plym. Col. Rec._, XI, 29, 108, 190, 191.]

[Footnote 492: For the case see _ibid._, III, 5: "Wee psent

Jonathan Couentry ... for makeing mocion of marriage vnto

Katheren Bradberey, servant vnto M^r Burne, of the same town,

without her master's consent, contrary to Court orders."]

[Footnote 493: See _ibid._, IV (1666/7), 140, 158, 159.]

[Footnote 494: GOODWIN, _Pilgrim Republic_, 598; _cf._ PALFREY,

_Hist. of New England_, II, 21.]

[Footnote 495: GOODWIN, _op. cit._, 597.]

[Footnote 496: Dec. 16, 1679. At a court held at Charlestown,

George Parminter and his wife convicted of fornication before

marriage, court respited their sentence till next court, and

ordered that their parents be summoned then to appear to give

answer why they denied them the consummation of their marriage

for so many months after they were in order thereto: _MSS.

Records of the County Court of Middlesex_, III, 316.]

To the close of the colonial era a law of Connecticut provided that

"if any Man shall directly or indirectly endeavour to draw away

the affections of any Maid ... , on pretence of Marriage, before he

hath obtained Liberty and Allowance" from her parent, governor, or

guardian, should there be any, "he shall forfeit the sum of _Five

Pounds_ to the Party grieved; double that amount for the second

offence; and for a third transgression suffer imprisonment, besides

paying the costs of prosecution."[497]

[Footnote 497: _Acts and Laws of Conn._ (New Haven, 1769), 144.

Substantially the same provision appears in the _Code of 1643_:

TRUMBULL, _Blue Laws_, 106, 107; _Conn. Col. Rec._, I, 92; in

_The Book of General Laws, 1673_ (Hartford, 1865), 46; and in

_Acts and Laws_ (New London, 1715), 75.]

An elaborate statute of New Haven, for the regulation of proposals,

provides "that whosoever within this jurisdiction shall attempt,

or endeavor to inveagle, or draw the affections of any maide, or

maide-servant, whether daughter, kinswoman, or in other relation,

for himself, or for any other person, without the consent of father,

master, governor, or such other, who hath the present interest, or

charge, or (in absence of such) of the nearest magistrate, whether

it be by speech, writing, message, company-keeping, unnecessary

familiarity, disorderly night meetings, sinful dalliance, gifts, or

any other way, directly or indirectly, every such person (besides

all damages which the parent, governor, or person intrusted or

interested, may sustain by such unlawful proceedings) shall pay

to the plantation forty shillings for the first offence; and for

the second offence towards the same party four pounds; and for the

third offence he shal be further fined, imprisoned, or corporally

punished, as the plantation court, or court of magistrates

considering all circumstances, shal determine."[498]

[Footnote 498: _New Haven Col. Rec._, II, 600; TRUMBULL, _op.

cit._, 242. _Cf._ ATWATER, _Hist. of Col. of New Haven_, 362.]

The foregoing act was probably suggested by the Massachusetts law

of 1647, which is likewise here presented. It is declared that,

"whereas God hath committed the care and power into the hands of

parents for the disposing their Children in Marriage, so that it is

against rule, to seek to draw away the affections of young maidens

under pretence of purpose of marriage, before their parents have

given way and allowance in that respect; and whereas it is common

practise in divers places for young men irregularly and disorderly

to watch all advantages for their evil purposes, to insinuate

into the affections of young Maidens by coming to them in places

and seasons unknown to their parents for such ends, whereby much

evil hath grown amongst us, to the dishonour of God and damage of

parties; for prevention whereof for time to come. It is further

Ordered, that whatsoever person from henceforth shall endeavour,

directly or indirectly, to draw away the affection of any mayd

in this jurisdiction, under pretence of marriage, before he hath

obtained liberty and allowance from her parents or Governors or

in absence of such of the nearest magistrate, he shall forfeit

for the first offence five pounds, for the second towards the

partie ten pounds, and be bound to forbeare any further attempt

and proceedings in that unlawful designe, without or against the

allowance aforesayd. And for the third offence upon information or

complaint by such parents or Governors to any Magistrate, giving

bond to prosecute the party, he shall be committed in prison, and

upon hearing and conviction by the next court, shal be adjudged to

continue in prison, untill the Court of Assistants shall see cause

to release him."[499]

[Footnote 499: WHITMORE, _Col. Laws of Mass._ (1660-72), 172;

_ibid._ (1672-86), 101; _Mass. Col. Rec._, II, 207. _Cf._

FRIEDBERG, _Eheschliessung_, 477, note; NEWHALL, _Ye Great and

General Court_, 349-65, giving interesting examples.]

The courts were not without employment under this statute. In 1658

Paul Wilson appeared before the county court of Middlesex, sitting

in Charlestown, "to answer the complaint of Deacon Upham for violent

soliciting his daughter against his will." Whereupon the tribunal

"admonished Wilson of his evil behavior towards the said Upham and

his daughter Priscilla, and ordered him to give bond of ten pounds

for his regular behavior towards the said parties." Accordingly

the culprit gave bond "yt he will no more frequent the company of

Priscilla Upham, nor by no means whether direct or indirect, make

any more addresses vnto her without her fathers leave first orderly

had & obteined."[500] For a similar offense, in 1672, the county

court of Suffolk fined Benjamin Scott five pounds.[501] Two years

later, before the same tribunal, Thomas Irons was presented "for

procuring Richard Barnum to publish a marriage" between himself

and Mary Arnold without her father's leave;[502] while the next

February, as we learn from the record, John Lorin stood "convict on

his own confession of making love to Mary Willis without her parents

consent and after being forwarned by them, £5."[503]

[Footnote 500: _MSS. Records of the County Court for Middlesex_,

I, 131.

In 1662 Marmaduke Johnson, who by his own confession had a wife

in England, was convicted of trying to steal the affections of

the daughter of Samuel Green without his knowledge and consent;

and he was ordered to join his spouse by the first oportunity:

_ibid._, I, 206. The next year Johnson was "fined £20 unless he

give security" so to depart, in the meantime being "committed

until the order is performed": _ibid._, 249. It may be further

noted that on April 7, 1674, a Marmaduke Johnson is spoken of as

"late constable of Cambridge": _ibid._, III, 87.]

[Footnote 501: _MSS. Records of the County Court of Suffolk_,

106.]

[Footnote 502: Irons was fined 20 shillings, and Barnum half that

sum: _MSS. Records of the County Court of Suffolk_ (July 28,

1674), 255, 256. On the same day "Edward Peggy being bound over

for using indirect means 'by powders or other wayes unlawfull to

Engage the affections or desires of women kinde to him' and for

begetting a bastard child"--in particular for illegally "drawing

away the affections of two girls"--was assessed 10 pounds and put

under bonds for good behavior: _ibid._, 261.]

[Footnote 503: _Ibid._ (Feb. 4, 1674-75), 301. The records of the

court of assistants in _Mass. Col. Rec._ (Sept. 1, 1640), I, 299,

300, contain a similar case.]

Although parents might be prosecuted for "unreasonably denying any

child timely or convenient marriage,"[504] it is evident that lovers

had to be very circumspect in old colonial days. In a community

where power to dispose of a son or daughter in wedlock was believed

to be the gift of heaven, it is not strange that "allowance" was

sometimes hard to gain. Praising the chaste reserve of the gentle

"old maid" of Boston whom he had learned to admire, John Dunton thus

expresses the dominant view: "I am sure this is most agreeable to

the _Virgin modesty_, which should make Marriage an act" rather of

"obedience" than "choice." "And they that think their Friends too

_slowpaced_ in the matter give certain proof that lust is the sole

motive."[505] Nor was the average New England house-father at all

likely to allow sentiment to get the better of prudence in seeking a

match for his child. He was more apt to be governed by a spirit of

cold calculation which never for an instant lost sight of the "main

chance." Judge Sewall, for example, can hardly be called "slowpaced"

in providing his daughters with wooers. He superintends the whole

"business" of love-making with never-flagging zeal. Poor, timid

daughter Betty is fairly worried into matrimony, perhaps as the only

sure way of escaping her father's nagging. What a procession of

"captains" and "persons of worth" he parades before the reluctant

girl before he succeeds in gaining his will! The first who "wished

to speak with her" is Captain Tuthill, who appears as a suitor when

she is but seventeen years of age. After the judge had made careful

and satisfactory inquiry as to the captain's estate--which he finds

valued at £600 or £700--and the young man "in good Business, and

like to be in better;"[506] and after having his daughter read to

him about the courtship of Adam and Eve "as a soothing and alluring

preparation for the thought of matrimony,"[507] the lover is invited

to call. Of this visit and its surprising result Sewall thus writes

in his _Diary_: "At night Capt. Tuthill comes to speak with Betty,

who hid her self all alone in the coach for several hours till he

was gon, so that we sought at several houses, till at last came

in of her self, and look'd very wild."[508] A number of others in

rapid succession have little better luck with the coy maiden. The

next fall, however, on returning from a journey to Rhode Island, the

judge finds his "family in health, only disturb'd at Betty's denying

Mr. Hirst." A month later he sadly records that he supposes even

this suitor has "taken his final leave."[509] Nevertheless two days

after, on October 26, 1699, he addresses Betty at "Brantry," where

she had gone on a visit, the following characteristic letter:

"Mr. Hirst waits upon you once more to see if you can bid him

welcome. It ought to be seriously considered, that your drawing back

from him after all that has passed between you, will be to your

Prejudice; and will tend to discourage persons of worth from making

their Court to you. And you had need well to consider whether you

are able to bear his final Leaving of you, howsoever it may seem

gratefull to you at present. When persons come toward us, we are apt

to look upon their Undesirable Circumstances mostly; and therefore

to shun them. But when persons retire from us for good and all, we

are in danger of looking only on that which is desirable in them to

our wofull Disquiet. Whereas 'tis the property of a good Balance

to turn where the most weight is, though there be some also in

the other Scale. I do not see but that the Match is well liked by

judicious persons, and such as are your Cordial Friends, and mine

also.

[Footnote 504: Law of 1641: WHITMORE, _Col. Laws of Mass._

(1660-72), 137.]

[Footnote 505: DUNTON, _Life and Errors_, I, 103; _idem_,

_Letters from New England_, 101, 102.]

[Footnote 506: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V,

490.]

[Footnote 507: EARLE, _Customs and Fashions_, 57.]

[Footnote 508: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V,

491.]

[Footnote 509: _Ibid._, 503.]

"Yet notwithstanding, if you find in yourself an i[=m]ovable,

incurable Aversion from him, and ca[=n]ot love, and honour, and obey

him, I shall say no more, nor give you any further trouble in this

matter. It had better be off than on. So praying God to pardon us,

and pity our Undeserving, and to direct and strengthen and settle

you in making a right Judgment, and giving a right Answer, I take

leave, who am, dear child, your loving father. Your mother remembers

to you."[510]

[Footnote 510: SEWALL'S _Letter-Book_, in 6 _Mass. Hist. Coll._,

I, 213.]

Either this letter had the desired influence or Betty was unable to

endure the "wofull disquiet" of a "final leaving;" for a year later

it stands written that "Mr. Grove Hirst and Elizabeth Sewall are

married by Mr. Cotton Mather."[511]

[Footnote 511: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, VI,

24. In like spirit the judge manages the marriage of his daughter

Mary with Sam Gerrish: SEWALL'S _Letter-Book_, in 6 _Mass. Hist.

Coll._, I, 379; _Diary_, in 5 _Mass. Hist. Coll._, V, xxxviii;

VI, 250, 251, 263. On these and other illustrations of New

England courtship see EARLE, _Customs and Fashions_, 56 ff.]

IV. PRE-CONTRACTS, BUNDLING, AND SEXUAL IMMORALITY

The colonists were extremely anxious to restrain vice by

legislation. The whole field of private morals was brought under

the purview of the magistrate. Unchastity and sexual crimes,

especially, they were determined to prevent at all hazards; and,

in consequence, the early colonial and court records are far from

pleasant reading. Conjugal infidelity is especially abhorred by the

lawmaker. Originally, in all the New England colonies save Rhode

Island and Plymouth, death was the penalty prescribed for adultery

with a "married or espoused wife." In the New World the Puritan thus

actually realized what Luther, Hooper, and other Reformation Fathers

ardently desired as an ideal fulfilment of the Mosaic code.[512]

The capital law of Massachusetts, at any rate, was not a dead

letter, as is clearly shown by the records of the early period. The

only attempt to put in force the original act of 1631 was, indeed,

a failure. It appears that in 1637 two men and one woman were

convicted; but on the ground that the statute had been "made by the

court of assistants by allowance of the general court," and for fear

lest it had not been "sufficiently published," the extreme penalty

was not administered. Instead the culprits were whipped and then

banished on pain of death should they return.[513] The act of 1631

was, however, at once confirmed,[514] and it remained in force until

superseded by the "Body of Liberties," whose provision on this point

was not abrogated during the period of the colonial charter. Under

the law as thus constituted two persons were condemned and executed

in 1644.[515] Further, in his _Magnalia_ Cotton Mather mentions the

execution of an adulterer from Weymouth.[516] These are the only

cases of capital punishment for this offense yet discovered; but

a number of persons narrowly escaped it, where the evidence seems

sufficient to warrant the death penalty. Apparently the courts

shrank from pronouncing sentence according to the full rigor of the

law,[517] satisfying themselves with lesser punishments, such as

imprisonment, banishment,[518] or whipping.

[Footnote 512: _Mass. Col. Rec._, I, 92 (1631); WHITMORE, _Col.

Laws of Mass._ (1660-72), 55 ("Body of Liberties," 1641), 128;

_ibid._ (1672-86), 15; _New Haven Col. Rec._, II, 577; TRUMBULL,

_Blue Laws_, 200; _Conn. Col. Rec._, I, 77; TRUMBULL, _op. cit._,

60; _New Hamp. Prov. Papers_, I, 385 (Cutt Code). Beginning with

the "Body of Liberties," 1641, the capital law of Massachusetts

cites Lev. 20:19; 18:20; Deut. 22:23, 24; and the laws of the

other colonies are supported by the same or like passages of the

Jewish Code.]

[Footnote 513: The "elders" being appealed to promptly decided

that the three persons then lying in prison should be put to

death, "if the law had been sufficiently published." But for

the reasons named in the text the general court thought it was

"safest that these persons should be whipped and banished":

WINTHROP, _Hist. of New England_, I, 309; _Mass. Col. Rec._, I,

198, 202, 203, 225. Compare the excellent monograph of DAVIS,

_The Law of Adultery and Ignominious Punishments_, 6-11, who

gives the details regarding this case and the law of 1631; and

calls attention to the English act of 1650, which classes incest

and adultery among felonies, citing thereon PIKE, _Hist. of Crime

in England_, II, 182; and BLACKSTONE, _Commentaries_, IV, 64.]

[Footnote 514: March, 1637-38. "The law against adultery made

by the Particular Court in October, 1631, is confirmed, that

whosoever lieth with another man's wife, both shall be punished

by death; and this is to be promulgated."--_Mass. Col. Rec._, I,

225. This law was confirmed in 1640, the act of 1631 being then

formally repealed: _ibid._, I, 301.]

[Footnote 515: In 1643-44, at a quarter court held in Boston,

"James Brittanie being found guilty of adultery with Mary

Latham, he was condemned to death. Mary Latham being found

guilty of adultery with James Brittanie, she was condemned to

death."--_Record of the Court of Assistants of Mass. Bay Colony_,

1641-44 (from the Barlow MS.) in WHITMORE'S _Bibliographical

Sketch of the Laws of Mass._, xlii. According to WINTHROP, _Hist.

of New England_, II, 157-59, these persons were executed.]

[Footnote 516: DAVIS, _The Law of Adultery_, 15, 16.]

[Footnote 517: Thus on Sept. 7, 1641, for adulterous practices

a man was "censured to bee sent to the gallos w^{th} a roape

about his neck, & to sit upon the lather an houre, the roapes end

throwen over the gallos, so to returne to prison."--_Mass. Col.

Rec._, I, 335; _cf._ DAVIS, _op. cit._, 15. In 1645 Henry Dawson

came near suffering the extreme penalty: WINTHROP, _op. cit._,

II, 305. Three years later the "Co^rte acquit Elisa : Pennion of

the capitall offence charged upon her by 2 sev^rall inditements

for adultery," but sentence her to be "whiped" in Boston and

again "at Linn w^{th}in one month" (1648): _Mass. Col. Rec._, II,

243. Still more striking are the cases of Elizabeth Hudson and

Bethia Bulloine (Bullen), "married women and sisters," carried

from the county court at Boston before the assistants in 1667.

On a special verdict by the jury the latter tribunal sentenced

each "to be by the Marshall Generall ... on y^e next lecture day

presently after the lecture carried to the Gallowes & there by

y^e Executioner set on the ladder & with a Roape about her neck

to stand on the Gallowes an half houre & then brought ... to the

market place & be seriously whipt w^{th} tenn stripes or pay the

Sume of tenn pounds," standing committed till the sentence be

performed: _MSS. Early Court Files of Suffolk_ (Sept. 11, 1667),

No. 821. Whether this sentence was for adultery as charged or for

"lascivious carriage" we are not informed. In NOBLE'S _Records of

the Court of Assistants_, I, 56, 57, 70, 71, 73, 74, 114, 115,

240, 252, are ten cases of punishment by rope and gallows and

whipping instead of death, the jury plainly avoiding the penalty

for adultery under the law.]

[Footnote 518: Under date of Sept. 2, 1674, the Suffolk Files

contain a petition from a husband praying that his wife--for

adultery banished to Rhode Island the preceding year--might "be

allowed to return in peace." His petition was denied, although

he avers that through his wife's absence "his life is most

uncomfortabell," having "no Relation at all that liveth with

him and it being low with him and not abell to ... pay Rent in

seuerall places & not willing to Remaine away from the things

of god ... to goe to liue in a place and with such as he never

delighted in."--_MSS. Early Court Files of Suffolk_, No. 1325.]

In Plymouth the death penalty for adultery seems never to have

been established.[519] Instead, the "scarlet letter," a punishment

even more terrible to bear, was there adopted as a permanent badge

earlier than in any other colony; while in England it appears never

to have been so employed for any crime.[520] So far as known, the

oldest typical case of bearing such a "stigma" continuously for

adultery occurred in 1639. In that year a woman was sentenced to be

"whipt at a cart tayle" through the streets, and to "weare a badge

vpon her left sleeue during her aboad" within the government. If

found at any time abroad without the badge, she was to be "burned

in the face w^{th} a hott iron."[521] Two years later a man and a

woman for the same offense were severely whipped "at the publik

post" and condemned while in the colony to wear the letters _AD_

"vpon the outeside of their vppermost garment, in the most emenent

place thereof."[522] So the custom was already developed in judicial

practice when the oldest statute providing for the "scarlet letter"

appeared in 1658. It was then enacted "that whosoeuer shall comitt

Adultery shalbee seuerly punished by whiping two seuerall times;

viz: once whiles the Court is in being att which they are convicted

of the fact and 2^{cond} time as the Court shall order; and likewise

to weare two Capital letters ziz; AD cut out in cloth and sewed on

theire vpermost Garments on theire arme or backe; and if at any time

they shalbee taken without the said letters whiles they are in the

Gou^rment soe worn to bee forth with taken and publickly whipt."[523]

[Footnote 519: But the law is not entirely clear: see _Plym. Col.

Rec._, XI, 12; and the comments of DAVIS, _The Law of Adultery_,

16.]

[Footnote 520: See the facts collected by DAVIS, _op. cit._,

16-32. For Massachusetts, between 1633 and 1681, are a number

of sentences to wear a badge for offenses other than adultery,

such as drunkenness, theft, wanton behavior, incontinence, or

the disturbing of public worship. In most instances the mark is

to be worn temporarily; but in three cases it is a continuous

punishment. Thus on March 4, 1633-34, for drunkenness, Robert

Coles is "sentenced to be disfranchised, and to wear about his

neck, and to hang about his outer garment a D made of red cloth

set upon white, to continue for a year and not to leave it off at

any time when he should come among company."--DAVIS, _op. cit._,

18; _Mass. Col. Rec._, I, 112. This appears to be the earliest

reference to a _red_ badge placed upon the outer garments. See

also the case cited by Davis from JOSSELYN'S _Account of Two

Voyages to New England_ (VEAZIE'S reprint, Boston, 1865), 178,

179, occurring either in Massachusetts or Plymouth prior to

1671; the similar case of sentence to wear a "Roman B cut out

ridd cloth," for unclean and lascivious behavior and blasphemous

words: in _Plym. Col. Rec._, III, 111, 112 (March 5, 1656-57);

and one in _Mass. Col. Rec._ (Sept. 3, 1639), 269.]

[Footnote 521: _Plym. Col. Rec._, I, 132.]

[Footnote 522: _Ibid._, II, 28 (1641).]

[Footnote 523: _Ibid._, XI, 95, 172.]

The Plymouth statute was copied into the Cutt Code for New Hampshire

in 1679-80.[524] By the act of 1701, taken from the Massachusetts

law of 1694, the initial letter is still prescribed;[525] and

down to its repeal in 1792 the law was frequently enforced by the

courts.[526]

[Footnote 524: _New Hamp. Prov. Papers_, I, 384-86.]

[Footnote 525: By the marriage act of 13 W. III., 1701: _New

Hamp. Prov. Papers_, III, 224. This act is retained in _Acts

and Laws of New Hamp._ (Portsmouth, 1761), 53, 54; and _ibid._

(Portsmouth, 1771), 10, 11.]

[Footnote 526: There is a discussion of several cases in SHIRLEY,

"Early Jurisprudence of New Hamp.," _Procds. New Hamp. Hist.

Soc._ (1876-84), 279 ff.]

It is an evidence of the more humane tendency of Rhode Island

legislation that neither death nor the scarlet badge seems ever

to have been prescribed for adultery, although the offense was

otherwise harshly punished. The culprit is to be "publickly set on

the Gallows in the Day Time, with a Rope about his or her Neck, for

the Space of One Hour; and on his or her Return from the Gallows to

the Gaol, shall be publickly whipped on his or her naked Back, not

exceeding Thirty Stripes; and shall stand committed to the Gaol of

the County wherein convicted, until he or she shall pay all Costs of

Prosecution."[527]

[Footnote 527: Act of 1749: in _Acts and Laws of R. I._ (Newport,

1767), 6; also _ibid._ (Newport, 1752), 67, 68. By the earlier

statute as given in _Acts and Laws_ (1745), 118, the punishment

is thirty-nine stripes or a fine not exceeding 10 pounds.]

In Connecticut a brand appears to have superseded the death penalty

at least by 1673, as shown in the code of that year. The provision

of this code is retained almost exactly in the compilation of 1769,

requiring "that whosoever shall commit adultery with a Married Woman

or one Betrothed to another Man, both of them shall be severely

Punished, by Whipping on the naked Body, and Stigmatized or Burnt

on the Forehead with the Letter _A_, on a hot Iron: And each of

them shall wear a Halter about their Necks, on the outside of

their Garments, during their Abode in this Colony, so as it may be

Visible: And as often as either of them shall be found without their

Halters, worn as aforesaid, they shall, upon Information, and Proof

of the same, made before an Assistant or Justice of the Peace, ...

be Whipt, not exceeding Twenty Stripes."[528]

[Footnote 528: _Acts and Laws of Conn._ (New Haven, 1769), 7;

_The Book of Gen. Laws, 1673_ (Hartford, 1865), 2, 3; nearly the

same in _Acts and Laws_ (New London, 1715), 4, and _ibid._ (New

London, 1750), 7.]

As a detail of interest it may be observed that nowhere save in

Connecticut is the continuous wearing of a halter provided for

by statute; although for offenses other than adultery several

decisions show that during the seventeenth century this punishment

was employed in the Bay Colony.[529] Furthermore, in Connecticut,

as will hereafter appear, the law of incest differs from that of

adultery in not requiring a rope to be so worn.

[Footnote 529: In 1654, for rape, a man, besides being whipped

in Boston and again in Watertown, is sentenced during the

court's pleasure to wear a rope around his neck, the end of it

"hanging downe two feete long." If found at any time without the

rope "aboue forty rodd from his house," he is to be whipped:

_Mass. Col. Rec._, IV, Part I, 212. There is a similar case in

1642: DAVIS, _The Law of Adultery_, 30. That such sentences

were executed is shown in a realistic way by a petition of 1670

preserved in the Suffolk Files. William Stacey, suffering for

some offense not mentioned, prays "that the rope which he is

forced to wear around his neck may be taken off. In answer the

Secretary is required to send a copy of the Court's sentence to

the Constable of Charlestoun that he may see that the sentence

requiring the rope to be worn outside the clothes is carried

out."--_MSS. Early Court Files of Suffolk_, No. 988. On May 6,

1646, "Elizabeth Fairefeild" petitioned the court of assistants

that her husband might be discharged "from y^t pte of y^e censure

inflicted on him for his notorious evills, of wearing y^e rope

about his necke." He was, however, compelled to wear the rope six

years more; for it was not until 1652 that his faithful wife's

prayer was granted: _Mass. Col. Rec._, III, 67, 161, 273.]

The statute of Massachusetts prescribing the death penalty for

adultery did not survive the fall of the charter. So in 1794 the

scarlet letter was substituted.[530] The act published on June 20

of that year, and remaining in force until after the close of the

provincial era, varies in several important details, though not

essentially, from the laws of Plymouth and Connecticut already

presented. The offenders "shall be set upon the gallows by the space

of an hour, with a rope about their neck, and the other end cast

over the gallows; and in the way from thence to the common goal

shall be severely whip'd, not exceeding forty stripes each." Also

the offenders "shall forever wear a capital A, of two inches long

and proportionate bigness, cut out in cloth of a contrary color to

their cloaths, and sewed upon their upper garments, on the outside

of the arm, or on their back, in open view." If "found without their

letters so worn, during their abode in this province, they shall,

by warrant from a justice of peace, be forthwith apprehended and

ordered to be publicly whip'd, not exceeding fifteen stripes, and

so from time to time, _toties quoties_."[531]

[Footnote 530: Already in 1673, for having an illegitimate child

and imposing it on her husband, a woman had been sentenced by

the court, "if found in this Colony two months after this date

that shee stands in the markett place on a stoole for one hower

w^{th} a paper on hir breast w^{th} y^e Inscription THVS I STAND

FOR MY ADVLTEROVS AND WHORISH CARRIAGE and that on a lecture day

next after the lecture and then be seuerely whipt w^{th} thirty

stripes."--NOBLE'S _Records of the Court of Assistants_, I, 10.]

[Footnote 531: _Acts and Resolves_, I, 171. This provision seems

to have been retained until it was omitted in the act of Feb. 17,

1785: _The Perpet. Laws of the Com. of Mass._ (Boston, 1789),

203, 204.]

Apparently writers have thus far failed to discover positive

evidence that the provision of this act regarding the capital

letter was ever carried out. A search in the manuscript records of

the superior court of judicature, however, has disclosed several

interesting cases. The earliest sentence occurred in March, 1707,

when Mathew Fuller and Hannah Parker were indicted before a superior

court at Plymouth. In the exact terms of the statute Hannah was

sentenced to be set on the gallows, receive thirty stripes upon

her naked back, and forever after to wear the capital _A_. But,

singularly enough, her paramour was acquitted, no reason being

assigned therefor either in the court record or in the files.[532]

Again in 1721 Jemima Colefix, for sinning with a free negro and

bearing a mulatto child, received a similar sentence; and in this

case also the accused man was acquitted of being the putative

father as had been charged.[533] The next case is dated February

9, 1730-31; and it shows that men as well as women had to endure

this penalty. Before a court held in Boston "the jurors present

John Warren, miller, and Rachel Gould for adultery," both being

married persons. Although they pleaded not guilty, they were each

set on the gallows, given thirty-nine stripes, and condemned to

wear the capital letter.[534] Twenty years later, on September

26, 1752, "Daniel Bayley, cooper, and Mary Rainer" received the

same punishment, except that they each suffered forty stripes, the

full number allowed by the statute.[535] Finally after the lapse of

thirty years more, just as the War of Independence was drawing to a

close, we learn from the records that, following the usual stripes

and exposure on the scaffold, Jerusha Doolittle was condemned to

wear the fatal _A_ as a badge of shame "forever."[536]

[Footnote 532: _MSS. Records of the Superior Court of

Judicature_, III (1700-14), fol. 206. This decree may not

actually have been carried out. The record concludes, "she being

big with child the sentence was suspended for the present."]

[Footnote 533: _Ibid._ (May 2, 1721), IV, foll. 355, 356.

According to the _MSS. Early Court Files of Suffolk_, No. 15,180,

the order of execution to the sheriff says she was convicted

on her own confession and accused the negro Humphers of being

the father. The woman was apparently an experienced sinner.

Fifteen years earlier "Jemima Colefix ... being presented ... for

whoredom with a Negro, appeared and owned the same but that it

was before marriage with her present Husband." Severely whipped

twenty stripes, costs, and stands committed: _MSS. Records of the

Court of General Sessions of Suffolk_ (Jan. 27, 1706), I, 144.]

[Footnote 534: _MSS. Records of the Superior Court of Judicature_

(1730-33), fol. 49.]

[Footnote 535: _Ibid._ (1752-53), fol. 190. The _MSS. Early Court

Files of Suffolk_, No. 29,729, show that on this conviction

without further proof "George Rainer [Raynord]," Mary's husband,

got a complete divorce. The statutory limit of forty stripes was

originally fixed according to the "law of God": WINTHROP, _Hist.

of N. E._, II, (ed. 1825-26), 250.]

[Footnote 536: _MSS. Records of the Supreme Judicial Court_

(1781-82), leaf 41. Besides the cases of conviction discussed

in the text, there are in the records a number of instances of

acquittal for the same offense. In the _MSS. Early Court Files

of Suffolk_ (May 28-30, 1700), No. 4715, is an interesting

example of extradition for adultery; and the survival of the

ancient "chattel" interest of the husband in the wife is

revealed by three damage suits for trespass on account of

alleged assault upon, and in one for detaining, the wife: _MSS.

Records of the Superior Court of Judicature_ (1763-64), fol.

70; _ibid._ (1767-68), fol. 163; _ibid._ (1775-78), fol. 144;

_ibid._ (1739-40), fol. 286. A similar case of "drawing away the

affections" of a daughter may be found in _MSS. Early Court Files

of Suffolk_ (1671-72), No. 1100.]

This closes the list of cases found in which the stigma is referred

to. On the other hand, there are a number of sentences for adultery,

or for what would ordinarily be so regarded, where this penalty

is not imposed. These are the cases of semi-adulterous conduct,

nominally provided for by the act of 1694, in which there is either

no charge or not sufficient evidence of absolute transgression.[537]

Usually one and sometimes both of the culprits are married. Fines,

stripes, and occasionally banishment are the penalties imposed.

As in the early period, there is manifestly a hesitation to urge

conviction for "adultery" so as to involve the extreme penalty

of the scarlet letter. The courts thus seem to favor a strict

construction of the statute, giving the accused the benefit of the

more lenient interpretation. In several cases the jury declines to

convict for the offense charged where the evidence would clearly

seem enough to sustain a verdict.[538]

[Footnote 537: These convictions are usually not for "adultery,"

but for being in bed together, according to a clause of the

act of 1694 providing that when a man is found in bed with

another person's wife each offender shall receive not more than

thirty stripes, unless one was surprised and not consenting.

For examples, some of them acquittals and some convictions, see

_MSS. Records of the Superior Court of Judicature_, I (Oct.

30, 1694), fol. 129; _ibid._, III (May 7, 1700), foll. 10, 11;

_ibid._, 1736-38 (Aug. 8, 1738), fol. 209; _ibid._, 1757-59 (Aug.

1, 1758), 391; _ibid._, 1757-59 (Feb. 21, 1759), 554; _ibid._,

1760-62 (Sept. 16, 1760), foll. 122, 123; _ibid._, 1763-64 (Jan.

25, 1763), fol. 11; _ibid._, 1763-64 (April 26, 1763), fol. 44;

_ibid._, 1767-68 (April 12, 1765), fol. 164; _MSS. Records of

Gen. Sessions of Suffolk_ (April 2, 1717), II, 151.

For the earlier period the Athenæum copy of the _MSS. Records of

the County Court of Suffolk_, 34 (March 17, 1671-72), 113 (Jan.

28, 1672-73), 585 (May 5, 1679), 633 (Jan. 27, 1679-80), contains

four analogous cases; and there is one in _MSS. Records of the

County Court of Middlesex_ (April 1, 1684), IV, 97.]

[Footnote 538: Thus at a superior court held at Falmouth for

Cumberland and Lincoln counties, June 28, 1763, the "jurors

present John Lawrence, husbandman, and Mary Lawton, _both

married_, for adulterously dwelling together for five years,

frequently lodging together in the same bed knowing each other

to be married, being found adulterously in bed together and not

surprised but consenting, and having carnal knowledge together.

John was arraigned, pleaded not guilty, and the jury returned

a verdict of guilty except to the charge of having committed

adultery. 30 stripes and recognition in £100 to keep the peace."

[Mary not tried.]--_MSS. Records of the Superior Court of

Judicature_ (1763-64), fol. 90. So also before a superior court

held at Worcester, April 20, 1773, Joshua Phillips, laborer,

presented by the jury for "committing _adultery_" with Mary,

wife of Edward Rice, was acquitted. Then the jurors present them

both "for being found at divers times in bed together.... They

pleaded not guilty. Convicted. Joshua fined £20 and costs. Mary

20 stripes and costs."--_Ibid._ (1773-74), foll. 36, 38.]

Throughout New England, Rhode Island alone excepted, persons

guilty of incest--that is to say, of uniting within the degrees of

consanguinity or affinity legally forbidden--were stigmatized with

an initial letter precisely as in the case of adultery. An act of

Massachusetts in 1692, "for the punishing of capital offenders,"

makes this offense a felony punishable with death.[539] Because

some of the "articles" dealing with capital crimes, among which is

incest, "were conceived in very uncertain and doubtful terms," and

because in such cases the penalty of death was not "conformable to

y^e Laws of England," the act was disallowed by the privy council

in August, 1695.[540] However, in June of the same year a new act

for the prevention of incestuous marriages had been adopted by the

general court; and this remained in force during the provincial

era. By it the forbidden degrees are enumerated in harmony with the

English ecclesiastical law. For violation of its provision exactly

the same penalty in the same words is imposed as by the statute of

1694 for the punishment of adultery, except that in place of _A_

a capital _I_ is to be continuously worn.[541] This act of 1695

was adopted by New Hampshire in 1714,[542] and by Connecticut in

1702, the provision regarding the initial letter reappearing in the

statute books of the latter commonwealth until 1821.[543]

[Footnote 539: _Acts and Resolves_, I, 56 (Oct. 29).]

[Footnote 540: See the "Letter from the Privy Council," _Acts and

Resolves_, I, 56, note; and compare DAVIS, _The Law of Adultery_,

12, 13.]

[Footnote 541: _Acts and Resolves_, I, 208-10.]

[Footnote 542: By 13 Anne: in _Acts and Laws_ (Portsmouth, 1761),

55, 56; and _ibid._ (Portsmouth, 1771), 42, 43.]

[Footnote 543: Revision of 1702, 73; _Acts and Laws_ (New London,

1715), 74-76; _ibid._ (New London, 1750), 145; _ibid._ (New

Haven, 1769), 145; _ibid._ (New London, 1784), 136.]

In Massachusetts the legal stigma for incest was often imposed by

judicial sentence. As already noticed by Davis, such a sentence in

1743 was executed upon Andrew Fleming, of Groton, who had first

been set on the gallows for an hour and whipped forty stripes.[544]

Hitherto no other examples of wearing the capital _I_ seem to have

been discovered. But a careful search in the manuscript records of

the superior court for the period ending in 1780 has brought to

light five additional cases. The first of these occurred in 1729 and

the last in 1759. In every instance the culprit is punished with

rope and gallows, stripes, and the scarlet letter.[545]

[Footnote 544: This case is in _MSS. Records of the Superior

Court of Judicature_ (1740-42), fol. 264. From the Suffolk Files

(360-66, 557) DAVIS, _The Law of Adultery_, 13, 14, quotes the

warrant of the sheriff for the execution; and also a notice of

the case from the _Boston Weekly News-Letter_ of Thursday, Feb.

10, 1743, stating that the daughter Elizabeth, with whom the

crime was committed, had absconded.]

[Footnote 545: The five cases are as follows: (1) Salem, Oct. 28,

1729: Peter Harding, tailor, for having carnal knowledge with his

daughter; gallows an hour, thirty-nine stripes, and capital _I_;

_MSS. Records of the Superior Court of Judicature_ (1725-30),

fol. 274. (2) Worcester, Sept. 19, 1752: Jonathan Fairbanks,

husbandman, and Sarah Armstrong, his wife's daughter; Jonathan

sentenced as above, except twenty stripes: _ibid._ (1752-53),

fol. 181. (3) Springfield, Sept. 24, 1754: Joseph Severance and

Eunice Classon, his wife's sister; Joseph sentenced as above,

except thirty stripes. (4) Eunice, _particeps criminis_ in

the preceding case, receives the same sentence, except twenty

stripes: _ibid._ (1755-56), fol. 341. (5) Cambridge, Aug. 7,

1759: Judah Clark and Huldah Dudley, his wife's daughter; Huldah

sentenced as above, except thirty stripes: _ibid._ (1757-59),

655.]

The New England Puritans were, of course, very serious in their

efforts to check sexual immorality. Their laws are characteristic

of the age. As yet small progress had been made in enlightened

theories of crime and its punishment. Besides they were steeped

to the core in Hebraism. More or less as a religious duty they

accepted and re-enacted the harsh precepts of the primitive Jewish

code. It is not a little curious, however, to see them preserving

an ancient English usage, almost extinct in the mother-country--in

some instances regulating it by statute--which "thwarted their

endeavors for complete propriety."[546] This was the custom of

pre-contract, contraction, or betrothal, which everywhere in New

England was celebrated with due solemnity. Such was the case in

Massachusetts.[547] By the Connecticut statute, as already noted,

the "contract" was carefully distinguished from the "covenant;" and

because many persons entangle themselves by rash and inconsiderate

promises for their future joining in marriage, the act of 1640

requires eight days' public notice of the betrothal, after which

a second period of eight days must elapse before the covenant is

sealed.[548] The pre-contract was in use also in New Hampshire[549]

and Plymouth. In the latter jurisdiction the "couple--having the

consent of the parents or guardians, in the case of minors--made

before two witnesses a solemn promise of marriage in due time, the

ceremony having the formality of the magisterial weddings then in

vogue."[550]

[Footnote 546: GOODWIN, _Pilgrim Republic_, 599, 600.]

[Footnote 547: COTTON MATHER, in his life of Danforth, says:

"After his Contraction, according to the old usage of New

England, unto the virtuous daughter of Mr. Wilson (whereat

Mr. Cotton preached the sermon), he was married unto that

gentle-woman, in the year 1651."--MATHER, _Magnalia_, IV, c. 3,

§ 6, Vol. II, 50. _Cf._ DEXTER, _Congregationalism_, 458 n. 166,

who cites also a statement in MATHER'S _Ratio_, 112; likewise

WINTHROP, _Hist. of New England_, II, 382 n. 2, whose mistake has

already been mentioned. Compare EARLE, _Customs and Fashions_, 68

ff., who gives the "texts" of some of the betrothal sermons.]

[Footnote 548: _Conn. Col. Rec._, I, 47, 48.]

[Footnote 549: SHIRLEY, "Early Jurisprudence of New Hamp.,"

_Procds. New Hamp. Hist. Soc._ (1876-84), 308.]

[Footnote 550: GOODWIN, _Pilgrim Republic_, 600; _cf._ _Plym.

Col. Rec._, XI, 172.]

Undoubtedly pre-contract was derived from the English "espousals,"

which, it has already appeared, were a direct survival of the

_beweddung_ of the Anglo-Saxon laws. But in New England the

betrothal gained a peculiar legal significance. "The betrothed woman

was put, both by law and social custom, one step above the woman who

was not betrothed, and one step below the woman who was married.

This was so both as respects the civil and the criminal law."[551]

In Massachusetts, Connecticut, and New Haven the "espoused wife"

like the married wife is to suffer death for adultery;[552] while

for fornication, on the other hand, the single woman and her partner

in guilt are much less severely punished. The betrothed woman "was

sentenced to wear the brand of the 'scarlet letter,' precisely as if

she were married."[553]

[Footnote 551: SHIRLEY, _loc. cit._, 308.]

[Footnote 552: WHITMORE, _Col. Laws of Mass._ (1660-72), 55,

128; _Conn. Col. Rec._, I, 77; _New Haven Col. Rec._, II, 577;

TRUMBULL, _Blue Laws_, 60, 200.]

[Footnote 553: SHIRLEY, _loc. cit._, 308. This is true of

Connecticut for the entire provincial period: _Acts and Laws_

(New Haven, 1769), 7, but apparently not of Massachusetts under

the second charter. In New Hampshire under the Canfield Code,

1682, the betrothed woman is still treated as married, but

whipping is dispensed with: _New Hamp. Prov. Papers_, I, 444,

445. But by the act of 1701 she is punished for fornication as a

single woman: _ibid._, III, 224.]

Thus in New England the betrothal regained a sanction similar to

that which it possessed according to primitive Germanic custom.

It was, in fact, a kind of marriage. The espoused couple were

separated from the world and placed in a relation whose sacredness

might not be violated as respects others without the most serious

consequences. On the other hand, it was entirely in harmony with

this theory that when they "were guilty of incontinence with each

other after pre-contract before marriage, their punishment was in

general one half, or less than one half, what it would have been

had there been no betrothment."[554] By the statute of Plymouth,

for example, the penalty in such cases was fifty shillings for

each person and imprisonment for a period not exceeding three days,

or if the guilty persons "will not or cannot" pay the fine, they

are to suffer "corporal punishment by whipping" instead; while for

transgression before contract the fine was twice as much.[555] This

was, in effect, to place a premium[556] upon wrongdoing committed

between the espousals and the nuptials. Naturally the immorality of

such offenses seemed thus to be lessened; and, as will presently

appear, a vast amount of sexual license was the natural result.

[Footnote 554: SHIRLEY, _loc. cit._, 308.]

[Footnote 555: The whole of this curious law may prove

instructive. It is enacted "That any person or persons that shall

Comit Carnall Copulation before or without lawfull contract

shalbee punished by whiping or els pay ten pounds fine apeece

and bee Imprisoned during the pleasure of the Court soe it

bee not aboue three daies but if they bee or wilbee married

[_i. e._, a "delayed" marriage voluntarily solemnized or else

marriage prescribed as a penalty] the one to the other; then but

ten pounds both and Imprisoned as aforsaid; and by a lawfull

Contract the Court vnderstands the mutuall consent of parents or

guardians if there bee any to bee had; and a sollemne promise of

marriage in due time to each other before two competent witnesses

[this being the regulation of pre-contract already mentioned in

the text]; and if any person or persons shall Comitt carnall

Coppulation after contract and before Marriage they shall pay

each fifty shillings and bee both Imprisoned," etc.--_Plym. Col.

Rec._, XI, 172, 95, 46. Originally the punishment for fornication

was left in the discretion of the magistrates: _ibid._, 12.]

[Footnote 556: _Cf._ SHIRLEY, _loc. cit._, 308, 309.]

The evil consequences of this anomalous state of the law were

rendered all the more serious through the custom of "bundling" which

obtained a wide prevalence in New England as it did also in New York

and the other middle colonies. According to Stiles, who has produced

the only general history of the subject, bundling "was practiced

in two forms; first, between _strangers_, as a simple domestic

makeshift arrangement, often arising from the necessities of a new

country, and by no means peculiar to America; and, secondly between

_lovers_, who shared the same couch, with the mutual understanding

that innocent endearments should not be exceeded."[557] It is the

second form with which we are here most concerned; and in its

origin this likewise appears to have been "a custom of convenience."

It was long regarded as a gross or licentious practice peculiar

to New England. Thus Irving taunts the people of Connecticut with

having tried to deprave the manners of the "Dutch lasses of the

Nederlandts" through the introduction of that "horrible" usage.[558]

But the Dutch maidens needed no lessons from their Yankee sisters

in this regard; for in their "queesting" they had brought with them

a form of bundling from Holland.[559] Indeed, it is not at all

improbable that in this case Pilgrim and Puritan alike may have been

strongly influenced by Dutch precedent, as they certainly were in

more important institutions. Such an inference seems all the more

justifiable, for as yet no trace of bundling has been reported "in

any localities of England itself, the mother country;"[560] though

in Ireland, Scotland, and Wales evidences of its recent existence

are not wanting,[561] and the custom seems clearly to be deeply

planted in the ancient usage of the German race.[562]

[Footnote 557: STILES, _Bundling in its Origin, Progress, and

Decline_ (Albany, 1871), 13, 14. GROSE, _Dictionary of the Vulgar

Tongue_, thus explains the practice: "A man and a woman lying on

the same bed with their clothes on; an expedient practiced in

America on a scarcity of beds, when, on such occasions, husbands

and parents frequently permitted travelers to _bundle_ with their

wives and daughters." This applies, of course, only to the first

named and less interesting form of the custom. In almost the same

words as those used by Stiles, MASSON, _Journeys in Belochistan,

Afghanistan_, etc., III, 287, describes the bundling of lovers

among the Afghans: see ADAMS, _Some Phases of Sexual Immorality_,

31, note. In general on this custom consult EARLE, _Customs and

Fashions_, 62-64; WEEDEN, _Ecc. and Soc. Hist. of N. E._, II,

739, 864.]

[Footnote 558: IRVING, _Knickerbocker's Hist. of New York_

(Philadelphia, 1871), Book III, chaps. vii, viii, 217-28; _cf._

STILES, _Bundling_, 45 ff.; ADAMS, _Some Phases of Sexual

Immorality_, 31.]

[Footnote 559: _Queesting_ (a seeking, similar to English

"quest") seems to have existed until last century on the islands

of Vlie, Wieringen, and perhaps elsewhere in Holland. "At night

the lover has access to his mistress after she is in bed; and,

upon an application to be admitted upon the bed, which is of

course granted, he raises the quilt, or rug, and in this state

_queests_, or enjoys a harmless chit-chat with her, and then

retires. This custom meets with perfect sanction of the most

circumspect parents, and the freedom is seldom abused. The author

traces its origin to the parsimony of the people, whose economy

considers fire and candles as superfluous luxuries in the long

winter evenings."--STILES, _op. cit._, 35, 36, citing CARR, _The

Stranger in Ireland_ (1807).]

[Footnote 560: ADAMS, _Some Phases of Sexual Immorality_, 33.

Mr. Adams, however, while pointing out the "singular and to me

unaccountable, fact" that traces of bundling, found so widely

in the New England colonies, have not yet been discovered

in England, thinks that it "could hardly have found its way

as a custom" from Holland or the other countries named; and

he mentions, by way of supporting his conclusion, its great

prevalence in Cape Cod where, according to Palfrey, until about

1825, "there was a purer strain of English blood to be found ...

than could be found in any county of England." But wherever the

Dutch settled the custom of bundling was tenacious, lasting in

Pennsylvania at least until 1845: EARLE, _Customs and Fashions_,

63: and in New York at least until 1804: STILES, _op. cit._, 111.]

[Footnote 561: STILES, _op. cit._, 14-35, who cites various

authorities for Wales, especially PRATT, _Gleaning through Wales,

Holland, and Westphalia_ (3d ed., London, 1797), I, 105-7; and

BINGLEY, _North Wales_ (London, 1804), II, 282. _Cf._ also ADAMS,

_op. cit._, 32; and BRAND, _Popular Antiquities_, II, 98.]

[Footnote 562: Bundling probably has its origin in the

"proof-nights" which formerly were widely prevalent among the

Teutonic peoples of Europe: see FISCHER, _Ueber die Probenächte_,

12 ff., 24 ff., 32-36.]

In New England, however, it was by no means confined to

Connecticut.[563] It prevailed in the sister-provinces, and

especially in both western[564] and eastern Massachusetts, down

to the revolutionary period and perhaps for a good many years to

come. Burnaby,[565] writing of his visit to that colony in 1759-60,

gives a lively account of the custom, under the name of "tarrying,"

significantly observing that it takes place between the permission

to pay court and the banns. In his view, bundling is on the whole

an innocent practice, seldom being attended by evil consequences.

On the other hand, that veracious historian, Rev. Samuel Peters,

reproves Burnaby for presenting the custom in "an unfavorable light,

and as prevailing among the _lower class_ of people;" whereas,

according to Peters, it exists among "all classes, to the great

honor of the country, its religion and ladies."[566] Again in

1777 Lieutenant Anbury, "a British officer, who served in America

during the Revolutionary War, and whose letters preserve many

sprightly and interesting pictures of the manners and customs of

that period,"[567] chats racily of an invitation to bundle which he

received at Williamstown, Mass.--a courtesy brought about through

the scarcity of beds for the entertainment of strangers.[568]

Charles Francis Adams finds positive proof of the existence of

the custom "within a ten-mile radius of Boston" at least until

1781;[569] and he also quotes a reference to it from a letter of

Abigail Adams written three years later.[570] Nor apparently was

bundling entirely abandoned in eastern Massachusetts until nearly

fifty years thereafter, Cape Cod having the "dubious honor" of

holding out against the "advance of civilization" in this regard

until 1827.[571] The next year, in Franklin county, Me., a letter

to the Portland _Yankee_ reveals the custom existing in full

vigor.[572]

[Footnote 563: STILES, _Windsor_, 495; WEEDEN, _Ecc. and Soc.

Hist. of N. E._, II, 739.]

[Footnote 564: JUDD, _Hadley_, 247.]

[Footnote 565: "When a man is enamoured of a young woman and

wishes to marry her, he proposes the affair to her parents....

If they have no objection, they allow him to tarry with her

one night, in order to make his court to her. At their usual

time the old couple retire to bed, leaving the young ones to

settle matters as they can; who, after having sate up as long

as they think proper, get into bed together also, but without

putting off their undergarments, in order to prevent scandal.

If the parties agree, it is all very well; the banns are

published, and they are married without delay. If not, they

part, and possibly never see each other again; unless, which is

an accident that seldom happens, the forsaken fair one prove

pregnant, and then the man is obliged to marry her, under

pain of excommunication."--_Travels in North America_, 110,

111. Elsewhere he says that, while at first the practice may

"appear to be the effects of grossness of character, it will,

upon deeper research, be found to proceed from simplicity and

innocence."--_Ibid._, 144. _Cf._ ADAMS, _op. cit._, 31, note; and

LODGE, _Short History_, 438. The word "tarrying" is not always

equivalent to "bundling," having a more general meaning. Nor was

tarrying or bundling always restricted to one night; see STILES,

_Bundling_, 70, 71.]

[Footnote 566: See STILES, _op. cit._, 51-60, for a long extract

from the lively account of Peters, who says that in Connecticut

bundling is "as old as the first settlement in 1634;" and that

"about the year 1756 Boston, Salem, Newport, and New York,

resolving to be more polite than their ancestors, forbade their

daughters _bundling_ on the bed with any young men whatever,

and introduced a sofa to render courtship more palatable and

Turkish;" but with more "natural consequences than all the

_bundling_ among the boors with their _rurales pedantes_ through

every village in New England besides." Of course, all this must

be swallowed with a very large "grain of salt."]

[Footnote 567: STILES, _op. cit._, 66.]

[Footnote 568: ANBURY, _Travels through the Interior Parts of

America; in a Series of Letters_ (new ed., London, 1781), II,

37-40: cited by STILES, _op. cit._, 66 ff. In a subsequent letter

Anbury plagiarizes the passage from Burnaby which we have quoted

in a preceding note.]

[Footnote 569: According to WORTHINGTON'S _History of Dedham_

(1827), 109--"a town only ten miles from Boston--I find that the

Rev. Mr. Haven, the pastor of the church there, alarmed at the

number of cases of unlawful cohabitation, preached at least as

late as 1781 'a long and memorable discourse,' in which, with

a courage deserving of unstinted praise, he dealt with 'the

growing sin' publicly from his pulpit, attributing 'the frequent

recurrence of the fault to the custom then prevalent of females

admitting young men to their beds who sought their company with

intentions of marriage.'"--ADAMS, _op. cit._, 35. STILES, _op.

cit._, 75-77, note, gives a long extract from Worthington, who

represents Haven's sermon as having had a powerful influence in

setting aside the custom of bundling. But already before this

Jonathan Edwards had raised his voice against it.]

[Footnote 570: ADAMS, _op. cit._, 35; citing MRS. JOHN ADAMS'S

_Letters_ (1848), 161.]

[Footnote 571: STILES, _op. cit._, 110, note, where personal

testimony is adduced.]

[Footnote 572: See the Appendix to STILES, _op. cit._, 113-25,

where an article from the _Yankee_, of Aug. 13, 1828, containing

the letter mentioned, is quoted. A search in the manuscript

court records reveals not a single clear case of bundling. On

Jan. 30, 1709-10, Jane Lee, widow, was presented and acquitted

in Charlestown for conduct resembling bundling: _MSS. Records of

the Court of Gen. Sessions of Suffolk_, I, 202. There is a more

probable example in the _MSS. Records of the Court of General

Sessions of Middlesex_ (Dec. 15, 1702), I, 137.]

According to the judgment of Stiles, bundling "came nearest to being

a universal custom from 1750 to 1780." Contrary to the popular

view,[573] it appears to have been confined to the more humble and

less cultivated classes; "to those whose limited means compelled

them to economize strictly in their expenditure of firewood and

candle-light."[574] No evidence has yet been produced showing

that it made its appearance in the main centers of New England

civilization.

[Footnote 573: Thus SHIRLEY, "Early Jurisprudence of New Hamp.,"

_Procds. New Hamp. Hist. Soc._ (1876-84), 308, declares that "the

practice prevailed very largely in New England, among the rich

and the poor, the educated and the uneducated, the cultivated and

the uncultivated."]

[Footnote 574: STILES, _op. cit._, 65, 106. ADAMS, _op. cit._,

31, 32, 36, reaches the same conclusion. "It was," he says, "a

practice growing out of the social and industrial conditions of a

primitive people, of simple, coarse manners and small means," and

probably did not exist in Boston, Salem, or Plymouth.]

Though bundling could arise only in a comparatively rude state of

society, it seems in itself to have been neither very vicious nor

very immoral. Yet manifestly it was easily capable of abuse. Under

dangerous conditions it might readily degenerate into coarseness

and vice. Such conditions were not wanting throughout the colonial

era. The general tone of sexual morality was not high. The laws and

usages already presented, which in effect invited transgression on

the part of engaged lovers, afforded a constant temptation.[575]

Bundling thus has its chief moral significance as an adjunct

of pre-contract which must be held responsible for a very large

share of the sexual misconduct revealed in the judicial records.

Before the general court of Plymouth the cases of "uncleanness"

after contract and before marriage are very numerous. According

to Goodwin, they averaged one a year; and this appears to be a

conservative estimate. By actual count the records of that colony,

for the twenty-eight years between 1633 and 1661, show at least

twenty-four sentences for ante-nuptial offenses, chiefly after

betrothal; while during the seventeen years following 1661 there are

not less than forty-one such judgments. Members of some of the most

illustrious families of New England were guilty of indiscretions

in this regard.[576] In several of the early cases the husband

was publicly whipped in view of the wife, who sat near in the

stocks.[577]

[Footnote 575: So also in Holland, it is interesting to note,

bundling appears in connection with the practice of public

betrothals as the cause of ante-nuptial transgressions. See

Townshend's speech on the Hardwicke act in COBBETT-HANSARD,

_Parliamentary Debates_, XV, 56-59.]

[Footnote 576: "There was Peregrine White, the first-born child

of the Colony and stepson of Governor Winslow; Thomas Cushman,

Jr., son of the elder; James Cudworth, Jr., son of the future

general and deputy-governor, and Jonathan, his brother; Samuel

Arnold, Jr., son of the Marshfield pastor; Isaac Robinson, Jr.,

grandson of the great Leyden pastor; Thomas Delano; Nathaniel

Church; and other scions of leading families."--GOODWIN, _Pilgrim

Republic_, 600, who, thinks it a mistake to suppose that

generation "below the present in general purity of life;" since

the pre-contract was "a sort of semi-marriage" and "such cases

were ferretted out and recorded" with "impartial diligence."]

[Footnote 577: GOODWIN, _op. cit._, 600; _cf._ _New Hamp. Prov.

Papers_, I, 386, 445. FREEMAN, _Hist. of Cape Cod_, I, 167,

168, gives the following forms of sentence: "A. F. for having

a child born six weeks before the ordinary time of women after

marriage, fined for uncleanness, and whipt, and his wife set in

the stocks." "C. E., for abusing himself with his wife before

marriage, sentenced to be whipt publicly at the post, she to

stand by whilst the execution is performed. Done, and he fined

five pounds for the trouble."]

The manuscript records of two counties of Massachusetts for a

portion of the seventeenth century appear to demonstrate that such

"miscarriages" before complete wedlock were not less frequent in

the Bay Colony.[578] A thorough analysis of the records of the

county court of Suffolk, covering the ten years 1671-80, brings to

light twenty of these cases, while during the same period there are

forty-three instances of transgression by "single women."[579] Now,

it is important to remember that the statutes of Massachusetts,

unlike those of Plymouth, do not discriminate between the offenses

of single persons and those committed with each other by espoused

lovers.[580] The question therefore arises as to whether the

_custom_ of pre-contract--for pre-contract was not established by

_law_ in that province--can be held in any way accountable for these

facts. A comparison of the penalties imposed in the two classes of

cases, as exhibited in Tables I and II, shows that an affirmative

answer must be given. The sins of betrothed persons are in general

punished with far less rigor than those of single men and women.

Thus twenty-one out of forty-three single women, and eight out of

thirteen single men, are sentenced to stripes alone, nineteen of

them receiving each from fifteen to forty lashes;

TABLE I

CASES OF FORNICATION BEFORE MARRIAGE IN THE COUNTY COURT OF SUFFOLK

COUNTY, MASS., 1671-80

1. Fine only 3 married couples

£5 (both) 1 " "

£3 " 1 " "

40s. " 1 " "

2. Fine and confession before the congregation

or stripes 2 " "

3. Fine or stripes 15 " "

_a_) Fine--

£5 (both) 3 " "

£4 " 3 " "

£3 " 1 " "

50s. " 1 " "

40s. " 7 " "

_b_) Stripes--

20 2 husbands 0 wives

15 12 " 2 "

10 1 " 13 "

TABLE II

CASES OF FORNICATION BY SINGLE PERSONS IN THE COUNTY COURT OF

SUFFOLK COUNTY, MASS., 1671-80

The most noticeable feature of these cases is the tendency

on the part of single men to confess the crime and accept

punishment, besides becoming bound as putative fathers. All the

convictions for fornication are by confession or pleading guilty.

1. Single women convicted 43

_a_) Fine or stripes 22

£15 or 20 stripes 1

£5 or {20 " 1

{15 " 4

£3 or {20 " 1

{15 " 3

50s. or {15 " 3

{10 " 2

40s. or {15 " 2

{10 " 4

_b_) Stripes alone 21

40 (20 each in two places) 2

30 2

20 11

15 4

10 2

2. Single men, confession 13

_a_) Fine or stripes 5

£5 or 20 stripes 4

40s. or 15 stripes 1

_b_) Stripes alone 8

30 3

20 5

_c_) Putative fathers 17

while in no case is a single man or woman merely fined. On

the other hand, out of twenty married couples punished for

ante-nuptial misconduct, fifteen are given the choice of fines or

stripes, three are merely fined; and in no instance is whipping

alone the penalty decreed. Furthermore, the fines are on the

average smaller in these cases than in others, although as

regards both fines and stripes the sentences are sadly lacking in

uniformity. The conclusion seems irresistible that, in harmony

with popular sentiment, the courts, exercising the discretion

granted by the statute, were inclined to deal more leniently

with the faults of the betrothed than with those of less favored

bachelors and spinsters.

[Footnote 578: In addition the records of the court of assistants

for the early period contain six cases, in each instance the

husband alone being punished; two cases in 1635, one in 1637,

one in 1639, two in 1640: _Mass. Col. Rec._, I, 163, 193, 269,

296, 297; and three cases where both husband and wife were

fined, condemned to stand in the market place, or to confess on

Lecture Day: _Rec. of the Court of Assistants, 1641-1643/44_, in

WHITMORE, _Bib. Sketch_, xxxi, xxxiii, xxxvii.]

[Footnote 579: These are in the Athenæum copy of the _MSS.

Records of the County Court of Suffolk, 1671-80_. There is also

a unique example in the _MSS. Early Court Files of Suffolk_

(1675), No. 1412. This is a case of appeal to the assistants from

the county court at Salisbury, where John Garland and wife had

been fined £5 for having a child eleven weeks too early. On his

appeal John says, significantly: "I and She had parents Concent

to marry and Legally published & Stayed after publication a

Considerable time, that had any Such Act been co[=m]ited by us

we could haue preuented it by marrying sooner;" and he further

alleges that it was an untimely birth caused by the wife's fall.

In reply, the attorney for the county of Norfolk said Garland

had pretended to quote "Aristottle" to prove a child might come

in the seventh month, but that if the court "please to Cast an

eye vpon John garland ... they will judg Him to be no deepe

man in phylosophie." Whereupon the worthy barrister, rejecting

pagan learning, imparted the following bit of strictly orthodox

biology: "It was well knowne to the Honored Court at Salisbury

that the usuall time of woman was a set time As in genesis the

18 and the 10 compared with 2 of kings the 4th & the 16 verse,

the Honored Court likewise knew that that time wast aboue seauen

month as is the first of luke the 36 vers compared with the 39 &

40 and 56 & 57 verse of that chapter." The "jury" reversed the

decision of the lower court.]

[Footnote 580: "If any man commit fornication with a single

woman, they shall be punished, either by enjoining marriage, or

fine, or corporal punishment, or all or any of these," as the

court may determine: WHITMORE, _Col. Laws of Mass._ (1660-72),

153. Later disfranchisement, in the case of a freeman, was added:

_ibid._, 231. See also WHITMORE, _op. cit._ (1672-86), 54, 208;

_Conn. Col. Rec._, I, 527; _New Haven Col. Rec._, II, 590; _Plym.

Col. Rec._, XI, 12, 46, 95, 172.]

Similar evidence is afforded by the incomplete records of the county

court of Middlesex for the period 1629-86, supplemented by the

Files. These contain in all thirty cases of transgression before

marriage, eight of which fall within the ten years covered by the

Suffolk records already considered. Most of the severe sentences

(Table III) occur in this period and the six years immediately

following, although the heaviest fine, twenty pounds for the couple,

is imposed in 1663.[581] Seemingly, from the few cases known, single

persons were treated more harshly than those who were betrothed.[582]

[Footnote 581: June 16, 1663. At a county court at Charlestown,

"Daniel Weld and Bertha his wife convicted of fornication before

marriage, appeared and made humble acknowledgment of their sin

craving the favor of the court. Admonished seriously to consider

their great sin and fined £10 apiece. Execution respited during

the pleasure of the court."--_MSS. Records of the County Court of

Middlesex_, I, 243. On the same day before the same court John

Roy and wife were convicted of the same offense, and "pleaded

that it was committed a fortnight after their solemn contract

in marriage and being hindered of marriage were overcome by the

temptation." They had to pay only 40s.: _ibid._, 241.]

[Footnote 582: In these volumes there are five cases of

fornication by single persons. In the first, April 4, 1654, the

two culprits got each twelve stripes; in another, April 1, 1684,

a married man and a girl were parties, the man being sentenced

to pay £20 or receive thirty stripes, the woman, £5; and in

one instance, October 2, 1677, the woman was "whipt fifteen

stripes." More cruel was the fate of Sarah Pore. On July 7, 1785,

for refusing to name the father of her two children, she was

condemned "to be whipt severely twenty stripes and to lie in the

house of correction for twelve months, there to be kept at hard

labor and to be whipt once a month until she confess." Of course,

on August 14, she named the man. For these cases see _MSS.

Records of the County Court of Middlesex_, I, 39; III, 107, 194;

IV, 97, 171, 173.]

On presentment by the grand jury[583] or voluntarily confessions

were made by wives and husbands before the court; and these

documents contain evidence of the close relation

TABLE III

CASES OF FORNICATION BEFORE MARRIAGE IN THE COUNTY COURT OF

MIDDLESEX COUNTY, MASS., 1649-86 [EXCEPT 1663-71]

During the same period these records contain five cases of

fornication by single persons.

1. Fine only 15 married couples

£20 (together) 1 " "

£5 " 3 " "

£4 " 6 " "

£3 " 2 " "

40s. " 3 " "

2. Fine or stripes

_a_) Fine 10 " "

£1 (together) 5 " "

£6 " 1 " "

£4 " 3 " "

£3 " 1 " "

50s. (wife) 1

_b_) Stripes 10 "

20 6 husbands 0 wives

15 1 " 0 "

10 3 " 10 "

3. Stripes only

15 1 " (the wife 50s. or whipped)

4. Confessions and petitions 3 married couples

5. Convicted and respited 1 " "

existing between the colonial church and state. On October 31, 1671,

for instance, Christopher Wheaton and Martha his wife were sentenced

in Boston to make an acknowledgment "in publique at Hull to y^e

Satisfaction of y^e Congregation, & pay twenty Shillings fine," on

pain of being whipped ten stripes each by the constable.[584] An

elaborate "church confession," found among the Middlesex Files,

would seem to prove that in another case the decree of the court

was obeyed; and that the written acknowledgment made before the

congregation was returned to the court for record.[585]

A History of Matrimonial Institutions, Vol. 2 of 3 · 第 3 / 12 章