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]