[Footnote 583: See the long petition and_A History of Matrimonial Institutions, Vol. 2 of 3

Elizabeth Manning, who had been presented by the grand jury of

Middlesex. It is expressed in perfervid pious phrase, much like

the "church confession" presently referred to: _MSS. Files of the

County Court of Middlesex_, June, 1664.]

[Footnote 584: _MSS. Records of the County Court of Suffolk_, 22.

There was another sentence of this kind at the same session of

this court.]

[Footnote 585: See the acknowledgment of Samuel Wright and Lydea

his wife beginning: "for as much as wee are heere called to

confese our sine before God and his people wee doe therefore

heere accnowlidg that wee haue sined in that wee haue brokne the

seuenth comandmente in neglecting of our deuty therein required

and comitinge the sine forbiddene: to the dishonour of God and

Scandalizinge of the gospel;" and so on in scriptural phrase to

the extent, in the author's copy, of a large typewritten page:

_MSS. Files of the County Court of Middlesex_, Oct., 1664.]

The files and records of the same two counties, supplemented by the

record of the superior court, may next be examined for the period

of the second charter. The impression made by their contents is

decidedly disagreeable and depressing. The coarser and more heinous

sexual crimes are growing more frequent, although due allowance

must be made for the increase of population. Indeed, the bulk of

the records of the general sessions appears to be concerned with

sexual immorality of almost every kind.[586] Inquiry is, however,

here restricted to the two classes of cases thus far considered.

For convenience the material is treated chronologically in two

divisions. The first division covers the period ending in 1725;

and the second the years 1726-80. Within the former period (Table

IV) the records of the general sessions of Suffolk for the years

1702-25, inclusive,

TABLE IV

SUMMARY OF FORNICATION CASES BEFORE THE GENERAL SESSIONS OF SUFFOLK

COUNTY, 1702-25, AND THE GENERAL SESSIONS OF MIDDLESEX COUNTY,

1692-1725

Between 1702 and 1725 the following cases brought conviction

before the general sessions for Suffolk county:

Cases of fornication where the woman alone was sentenced 104

Cases of conception before marriage with fine, and in a few

cases fine or whipping for husband, or both husband

and wife 48

Cases of woman fined or whipped, and putative (or acknowledged)

father sentenced to maintenance of child 44

Between 1692 and 1725 there were the following convictions

before the general sessions for Middlesex county (each case

stands for both man and woman if both were tried):

Cases of fornication 135

Cases of fornication and conception before marriage 155

yield forty-eight cases of conviction of married couples for

pre-nuptial misconduct, as compared with 148 cases of single women

sentenced for the same offenses.[587] The corresponding records

of the general sessions of Middlesex for the years 1692-1725

contain the extraordinary number of 155 cases of the first class,

as compared with 135 of the second. In a great many instances the

husband or both husband and wife appear "freely and voluntarily" and

confess their guilt.

[Footnote 586: There are (1) many cases of bastardy, the woman

being usually fined or whipped and the man in most cases

sentenced merely to contribute to the child's support; for a

few examples see _MSS. Records of the Court of Gen. Sessions of

Suffolk_, I, 112 (1705), 190, 192 (1709); II, 234 (1719); III,

154, 308 (1724); IV, 331 (1731): _MSS. Records of the Court of

Gen. Sessions of Middlesex_, II, 197, 203, 204 (1729-30); (2)

killing of bastard, at least ten convictions between 1692 and

1725, in nine of which the woman was sentenced to death; and not

less than a dozen presentations and one capital sentence after

1725: see examples in _MSS. Records of the Superior Court of

Judicature_, II (1686-1700), 49, 50; III (1700-1714), fol. 270;

_ibid._ (1725-29), fol. 111; _ibid._ (1772), fol. 98; _ibid._

(1757-59), 295; (3) miscegenative fornication, a number of cases,

the white woman almost always receiving twenty stripes: examples

in _MSS. Records of the Court of Gen. Sessions of Suffolk_, I,

144 (1706), 206 (1710); II, 43, 45 (1713); (4) rape, at least two

cases: _MSS. Records of Superior Court of Judicature_ (1739-40),

fol. 225; _ibid._ (1767-68), fol. 261; (5) prostitution of wife,

one case: _MSS. Minute Books of the Court of Gen. Sessions of

Suffolk_, III, Dec. 3, 1756. The darker crimes were, however, not

unknown to the period of the first charter. Between 1674 and 1681

in Massachusetts four persons were sentenced to death for rape:

NOBLE, _Records of the Court of Assistants_, I, 21, 50, 74, 199.]

[Footnote 587: Here are two typical cases:

Aug. 27, 1711: "Joseph Holbrook and Mary Cooke ... being

presented ... for fornication, He appeared and owned the same;

and that he is since Married to her. Ordered That [he] ... shall

pay a Fine of Three pounds in behalf of himself and his 2d Wife &

Costs ... standing Co[=m]itted."--_MSS. Records of the Court of

Gen. Sessions of Suffolk_, I, 234.

April 4, 1721: "Mary Shaw the Wife of Benjamin Shaw ... being

presented for having a child in September last, about five

Months after Marriage, appeared and owned the same. Ordered That

[she] ... pay a fine of Forty Shillings ... Costs ... standing

committed."--_Ibid._, III, 83.

A sentence that includes the alternative of whipping is rare; for

an example (July, 1702) see _ibid._, I, 4. The proceedings in

the case of Benjamin and Hopestill Allen, March 5, 1696-7--Nov.

23, 1698, are especially instructive. They were presented by the

grand jury of Bristol for having a child within six months after

publishment. Hopestill was fined 50 shillings, or to be whipped

ten stripes. On appeal to the superior court the legality of the

marriage was called in question. The privilege of appeal was

granted by special act of the legislature: with the _MSS. Early

Court Files of Suffolk_, No. 3728, compare the _MSS. Records of

the Superior Court of Judicature_, II, 198; and the petition and

act regarding appeal in _MSS. Mass. Archives_, XL, 476, 478, 483.]

TABLE V

FORNICATION CASES BEFORE THE GENERAL SESSIONS OF MIDDLESEX COUNTY,

MASS., FOR EACH QUINQUENNIUM, 1726-80[588]

===========================================================================

| QUINQUENNIUM |

+---+---+---+---+---+---+---+---+---+---+---+-----

| 26| 31| 36| 41| 46| 51| 56| 61| 66| 71| 76|TOTAL

| - | - | - | - | - | - | - | - | - | - | - |

| 30| 35| 40| 45| 50| 55| 60| 65| 70| 75| 80|

-------------------------+---+---+---+---+---+---+---+---+---+---+---+-----

Single women | | | | | | | | | | | | 523

Appeared and confessed | ..| 13| 2| 4| 12| 4| 10| 6| 5| 13| 21| ...

recognizance | 2| 3| 12| 3| 9| 7| 9| 6| 4| 2| 2| ...

Pleaded guilty | 9| 2| 3| 12| 10| 4| 11| 11| 13| 5| 2| ...

named man | 1| 3| 1| 4| 5| 6| 21| 18| 16| 7| 3| ...

and named man | 10| 4| 6| 4| 3| 6| 16| 11| 15| 9| 1| ...

and named man | 4| 15| 5| 1| 5| 4| 3| 9| 15| 16| 45| ...

Married couples | | | | | | | | | | | | 160

Appeared and confessed | 37| 65| 16| 3| 1| ..| 1| ..| ..| ..| ..| ...

Pleaded guilty | 15| 9| 8| 1| 1| ..| ..| ..| ..| ..| ..| ...

but convicted | 2| ..| 1| ..| ..| ..| ..| ..| ..| ..| ..| ...

Wives[589] | | | | | | | | | | | | 31

Appeared and confessed | 2| 1| 3| ..| 1| ..| ..| ..| 1| ..| ..| ...

Pleaded guilty | 3| ..| ..| ..| 1| 2| 6| 7| 4| ..| ..| ...

+---+---+---+---+---+---+---+---+---+---+---+-----

Total | 85|115| 57| 32| 48| 33| 77| 68| 73| 52| 74| 714

-------------------------+---+---+---+---+---+---+---+---+---+---+---+-----

This is especially true during the decade following 1715, there

being five such confessions at one sitting of the court, four of

them on one page of the record.

[Footnote 588: In addition to the 714 cases comprised in the

table, during the same period 73 single men, perhaps all involved

in those cases, were before the court as follows: putative

fathers, 54; settled out of court, 9; appeared and gave bond to

save the town, 8; fornication, pleading guilty, 2. Of these one

(1750) was fined £5; and one (1732) was given the choice of 10

shillings or ten stripes.]

[Footnote 589: Fornication before marriage (presumably with

husband).]

The results for the later period (Table V) are still more striking.

Before the Middlesex court alone, during the fifty-five years

commencing in 1726, were 523 cases of single women and 191 cases

of married couples; but 189 of these couples were tried during the

twenty-five years ending in 1750--there being but two isolated cases

of confession after that date--and 181 within the first fifteen

years. On the

TABLE VI

PENALTIES IMPOSED IN CASES COMPRISED IN TABLE V[590]

===================================

Fine | Single | Married | Wives

| Women | Couples |

--------+--------+---------+-------

£12½ | .. | 1 | ..

£9 | 1 | .. | ..

£6 | 1 | 2 | ..

£5 | 18 | 37 | ..

£4 | 48 | 61 | 3

£3 | 6 | .. | ..

50s | 10 | .. | 1

40s | 24 | 2 | 4

30s | 9 | .. | 3

25s | 8 | 1 | ..

20s | 43 | 3 | ..

15s | 20 | .. | ..

10s | 96 | 2 | 2

5s | 169 | .. | 16

4s | 11 | .. | ..

3s | 13 | .. | 2

2s | 7 | .. | ..

1s | 10 | .. | 1

| --- | --- | ---

Total | 494 | 109 | 32

--------+--------+---------+-------

other hand, 337 single women were convicted during the twenty-five

and 257 during the same fifteen years. Again, 118 out of the

181 married couples tried between 1726 and 1740 appeared and,

presumably, freely confessed their faults. The leading years in

this regard are 1730 with twelve, 1732 with twenty-nine, and 1734

with sixteen confessions. The leading quinquennium is the second

(1731-35) with sixty-six confessions as compared with thirty-nine in

the first (1726-30) and nineteen in the third (1736-40). To offset

these figures we find thirteen presumably voluntary confessions by

single women in the second quinquennium, none in the first, and

two in the third. These facts seem to point directly to the action

of special causes in producing this kind of immorality, or, at any

rate, its confession. Whether this action was local for Middlesex

cannot positively be determined from these documents alone;

although, as will soon appear, other evidence shows that this cannot

be assumed. After 1725 the records for Suffolk are incomplete; but

it is surprising that during the seven years (September, 1725,

to October, 1732) covered by Table VII there were in that county

only seven convictions of married couples, not one of whom freely

confessed, as compared with forty-eight cases of single women,

including one confession.

[Footnote 590: In general the later the date of the case, the

smaller the fine. With few exceptions fines of 25 shillings or

less are after 1745; and most of those for 5 shillings or under

are many years later. The "married couples" and the "wives" are

only fined. Eight "single women" have the alternative of fine

or stripes as follows: One (1734), £5 or 5 stripes; two (1755,

1770), £3 or 10 stripes; two (1746, 1756), 50 shillings or 10

stripes, the first being an "old offender;" one (1751), an "old

offender," 40 shillings or 10 stripes; one (1758), 10 shillings

or 10 stripes; one (1761), 5 shillings or 10 stripes. One woman

(1747), whose child is a mulatto bastard, is given 20 stripes and

sold into "service." In two similar cases (1759, 1772) 10 and

20 stripes respectively are deemed sufficient; while in another

instance (1761) an "old offender" is sentenced to 20 lashes. In

the later years, it will be noted, stripes decrease in money

value. On the other hand, with the progress in humanism, they are

probably lighter and therefore worth less.]

There can be little doubt that in the eighteenth century, just

as in the age preceding, the general cause of this ante-nuptial

immorality--and probably also of some part of the similar

misconduct of single persons whose engagements were not followed by

wedlock--was the custom of solemn pre-contract which still survived.

During the second quarter of the eighteenth century the penalties

were relatively severe, though not so rigorous as during the period

of the first charter; but the facts exhibited in Table VI show that

the courts still treated pre-nuptial offenders more mercifully than

those who were not married.

To determine the special cause of the sudden rise in the number

of confessions during the same period is a more difficult matter.

It is not improbable that a suggestion of Charles Francis Adams,

regarding another aspect of the problem, may give us a clue to

its right solution. Already the practice of church confession of

these offenses, in obedience to judicial decree, has been noticed;

and independently of the courts, as a religious expiation, such

acknowledgments were required by the authority of particular

churches. In the eighteenth century, if not earlier, under the

"seven months rule," the culpable parents were forced to humble

TABLE VII

FORNICATION CASES BEFORE THE GENERAL SESSIONS OF SUFFOLK COUNTY,

MASS., SEPTEMBER, 1725, TO OCTOBER, 1732[591]

==================================+=======================================+===

| YEAR |

+----+----+----+----+----+----+----+----+---

|1725|1726|1727|1728|1729|1730|1731|1732|TO-

| | | | | | | | |TAL

----------------------------------+----+----+----+----+----+----+----+----+---

Confessed | .. | .. | .. | .. | .. | .. | .. | .. | 1

£3 or 10 stripes | .. | .. | 1 | .. | .. | .. | .. | .. | ..

Pleaded guilty | .. | .. | .. | .. | .. | .. | .. | .. | 8

£4 or 10 stripes | .. | .. | 2 | .. | .. | .. | .. | .. | ..

£3 or 10 stripes | .. | .. | 2 | .. | .. | 1 | .. | .. | ..

£2 or 10 stripes | .. | .. | .. | 1 | .. | 1 | .. | 1 | ..

Pleaded not guilty, but | .. | .. | .. | .. | .. | .. | .. | .. | 3

convicted £5 or 10 stripes | .. | .. | .. | .. | .. | 1 | .. | .. | ..

10 stripes | .. | .. | .. | 1 | .. | 1 | .. | .. | ..

Pleaded guilty and named man | .. | .. | .. | .. | .. | .. | .. | .. | 35

£5 or 10 stripes | .. | 1 | .. | .. | .. | .. | .. | .. | ..

£4 or 10 stripes | 2 | 2 | 1 | .. | 2 | .. | .. | .. | ..

£3 or 10 stripes | 1 | 2 | 2 | 5 | 3 | 4 | 3 | 1 | ..

£2 or 10 stripes | .. | .. | .. | 1 | 1 | .. | 1 | 3 | ..

Came in freely and accused a man| .. | .. | .. | .. | .. | .. | .. | .. | 1

£2 or 10 stripes | .. | .. | .. | .. | .. | .. | 1 | .. | ..

man alone accus'd | .. | .. | .. | .. | .. | .. | .. | .. | 2

20s. or 10 stripes | .. | .. | .. | .. | .. | 1 | 1 | .. | ..

alone accus'd | .. | .. | .. | .. | .. | .. | .. | .. | 5

40s. or 10 stripes | .. | 1 | .. | .. | 1 | 1 | .. | .. | ..

20s. or 10 stripes | 1 | 1 | .. | .. | .. | .. | .. | .. | ..

+----+----+----+----+----+----+----+----+---

Total | 4 | 7 | 8 | 8 | 7 | 10 | 6 | 5 | 55

----------------------------------+----+----+----+----+----+----+----+----+---

themselves before the whole congregation or else expose their

innocent child to the danger of eternal perdition.[592] Yet, in

spite of the fact that the clergy had thus devised a punishment more

terrible to bear than the fines or stripes imposed by the criminal

law, during the very period under consideration the church records

show a great increase in the number of confessions. Adams suggests

that an explanation may be found in the religious excitement which

generally prevailed during the second quarter of the eighteenth

century, the period which includes the "Great Awakening" under

Whitefield in 1740, the Northampton revival of 1735, "engineered and

presided over by Jonathan Edwards," and earlier "harvests" of the

same character.[593] At Braintree, for example, there was a vast

increase in the number of church confessions during the pastorate of

John Hancock, 1726-43. It was "everywhere noticed that the women,

and especially the young women, were peculiarly susceptible to

attacks of the spiritual epidemic. Jonathan Edwards for instance

mentions, in the case of Northampton, how the young men of that

place had become 'addicted to night-walking and frequenting the

taverns, and leud practices,' and how they would 'get together

in conventions of both sexes for mirth and jollity, which they

called frolicks; and they would spend the greater part of the

night in them;' and among the first indications of the approach

of the epidemic noticed by him was the case of a young woman who

had been one of the greatest 'company keepers' in the whole town,

who became 'serious, giving evidence of a heart truly broken and

sanctified.' This same state of affairs doubtless then prevailed in

Braintree, and indeed throughout New England. The whole community

was in a sensitive condition morally and physically."[594] The

morbid quickening of the conscience would thus naturally result

in a greater number of confessions rather than in an increase of

sexual license; and this same cause seems adequate to explain the

extraordinary number of confessions which we have found in the

contemporary court records.[595] Besides, after the sin had been

disclosed before the congregation, an acknowledgment in court would

almost necessarily follow. It would be very strange, however, if

there were not a considerable increase in immorality. The practice

of bundling, as Adams believes,[596] may have afforded ready

opportunity. Any violent or protracted disturbance of the mental or

nervous equilibrium, often tending to produce sexual excesses, would

be sure to find "vent" in so dangerous a custom, especially when

sanctioned by the recognized doctrine of betrothal.

[Footnote 591: During the period are also fifteen cases of

putative fathers. Voluntary accusations of putative fathers were

looked on with suspicion. In the fragments of later records of

Suffolk it is not uncommon for the court to refuse to put the

woman on her oath in such cases.]

[Footnote 592: By this rule children born in less than seven

months after marriage were refused baptism, that is, were put

in peril of eternal damnation, unless the parents made public

confession of their fault before the whole congregation: ADAMS,

_Some Phases of Sexual Immorality_, 20 ff.

In like spirit other offenses were subjected to church

discipline. For minor shortcomings, such as cheating, the

culprit, after examination, was required to give "christian

satisfaction" by public confession of penitence. If he refused,

he was "suspended" from the communion. For adultery the penalty

was "excommunication" on refusal to confess: and this punishment

in Puritan New England meant as complete a social ostracism as

it did in old England during the Middle Ages. Sometimes the most

shameful wrongs resulted from these church trials; and this is

well illustrated by the case of Abigail Muxon who, in 1783, on

the unsworn testimony of two gossips, was condemned for alleged

misconduct, thirty years after she was "suspended" on the same

charge. She positively declared the evidence of the witnesses

false. She was then an old woman; but "there was no friend or

attorney to represent her before the self-righteous tribunal;

and without cross-examining the unsworn witnesses, the church

voted (men only were allowed to vote) that she is guilty of the

charge." For weeks she refused to "confess," although she was

"admonished" by the parson and "labored" with by the brethren. At

last before a tribunal of six ministers "her excommunication was

pronounced by Parson Everitt, who in his condemnation describes

her 'as being visibly a hardened and impenitent sinner out of the

visible Kingdom of Christ, one who ought to be viewed and treated

by all good people as a heathen and publican in imminent danger

of eternal perdition'": For a full discussion of this case see

the fascinating book of BLISS, _Colonial Times on Buzzard's Bay_,

99-101, 111-14.]

[Footnote 593: ADAMS, _op. cit._, 26 ff. The following scarce

works are in the Harvard library: JONATHAN EDWARDS, _Thoughts

concerning the Present Revival of Religion in New England_

(London, 1745); CHAUNCEY, _A Letter from a Gentleman to Mr.

George Wishart ... concerning the State of Religion in New

England_ (Edinburgh, 1742), criticising Tennant and Whitefield;

_The State of Religion in New England_ (Glasgow, 1742); and

especially the _Letter from New England_ (1742), 4, describing

the symptoms of "conversion."]

[Footnote 594: ADAMS, _op. cit._, 28.]

[Footnote 595: The church confessions of married couples and

single persons continued long after confession ceased to be made

in court. In Groton the "seven months rule" was put in force

in 1765 and not abrogated until 1803. Under its operation "the

records of the Groton church show that out of two hundred persons

owning the baptismal covenant in that church during the fourteen

years between 1761 and 1775 no less than sixty-six confessed to

fornication before marriage. The entries recording these cases

are very singular. At first the full name of the person, or

persons in the case of husband and wife, is written, followed

by the words 'confessed and restored' in full. Somewhat later,

about the year 1763, the record becomes regularly 'Confessed

Fornication' which two years later is reduced to 'Con. For.;'

which is subsequently still further abbreviated into merely

'C. F.' During the three years 1789, 1790, and 1791 sixteen

couples were admitted to full communion; and of these nine had

the letters 'C. F.' inscribed after their names in the church

records." The practice existed at Dedham, Roxbury, and probably

throughout Massachusetts: ADAMS, _op. cit._, 20-23, citing

BUTLER, _History of Groton_, 174, 178, 181; WORTHINGTON, _History

of Dedham_, 108, 109; and _Report of Boston Record Commission_,

vi, 93, _passim_.]

[Footnote 596: ADAMS, _op. cit._, 31 ff., 34. JUDD, _History

of Hadley_ (Northampton, 1863), 247, note, mentions Jonathan

Edwards's sermon against bundling.]

Finally it is not without interest to note that the higher legal

significance of the "contraction," as compared with that of the

English _sponsalia_, is due mainly to the influence of the Jewish

law. The code of Moses mentions no fixed ceremonies for concluding

marriage.[597] But precisely the same relation as by the Puritans

is fixed between marriage and betrothal. For criminal assault upon

the betrothed "damsel that is a virgin" and for adultery the death

penalty is prescribed.[598] Later, however, the rabbinical law

establishes "certain legal formalities for the act of concluding

marriage. The act consisted of two distinct parts, intervened by the

lapse of a certain time, the betrothment and the nuptials."[599]

To constitute a legal betrothment the mere consent of the parties

did not suffice. The performance of a solemn act was required. This

consisted in the man's giving to his chosen bride in the presence

of two witnesses either a written instrument, _sh'tar_, or a piece

of money, _kaseph_, and saying: "Be thou consecrated (wedded)

to me."[600] The contract thus made is not a "mere promise to

marry," with civil consequences for non-fulfilment. "It is the very

initiation of marriage. The betrothed parties are in some respects

regarded as married, though not yet entitled to the marital rights

nor bound to fulfil any of the mutual duties of conjugal life....

The betrothment could be dissolved only through death or a formal

bill of divorce."[601]

[Footnote 597: MIELZINER, _The Jewish Law of Marriage and

Divorce_, 75.]

[Footnote 598: Deut. 20:7; 22:22-29.]

[Footnote 599: MIELZINER, _op. cit._, 75.]

[Footnote 600: _Ibid._, 78. "As the formality of contracting

marriage by money had in the Rabbinical Law merely a symbolical

character, a coin of the least value (the _peruta_, the smallest

used in Palestine), and even any other object representing such a

value, could be used."--_Ibid._, 79. The practice may have been

derived from the Roman _coemptio_. "The rabbinical formality

differs, however, from the Roman in this, that the act is done

by the man only; _he_ gives the money or its value, and _he_

speaks the formula, while her consent is expressed by her silent

acceptance of both. This passivity on her side is in consequence

of the Talmudic principle based on the expression used in the

Mosaic law: 'If A Man Taketh A Wife;' he takes and she _is_

taken; he is the active and she the passive party."--_Talm.

Kiddushin_, 2_b_ and 3_b_; MIELZINER, _op. cit._, 78 n. 2. During

the Middle Ages it became customary to use a plain ring instead

of the piece of money: _ibid._, 79, 80.]

[Footnote 601: MIELZINER, _The Jewish Law of Marriage and

Divorce_, 76.]

Among the Jews it was quite customary for the betrothal to be

preceded by an "engagement," but it was not legally required.[602]

The Puritan went farther in this regard, regulating proposal and

courtship, as well as the pre-contract and nuptials, by statute.

[Footnote 602: _Ibid._, 77. "Since the third century it was

regarded as improper to effect a betrothment without a previous

engagement."--_Ibid._, 77.]

V. BREACH OF PROMISE AND MARRIAGE PORTIONS

The New England contraction or public betrothal, when its social and

legal consequences are considered, is thus seen to be an institution

of far more historical interest than the scanty attention it has

hitherto received would lead one to infer. This is all the more

apparent when the accompanying practice of legal courtship is kept

in view. Never, perhaps, in any modern society has parental control

been so pronounced. But if consent were once given and sealed by

a contract in due form, it could not be lightly withdrawn. The

early records abound in notices of suits for breach of promise. The

colonists were a litigious people; and members even of some of the

best families do not hesitate to drag their matrimonial difficulties

into court. Sometimes a jilted lover sues his fickle sweetheart;

or a forlorn maiden seeks satisfaction from her betrothed spouse.

Thus the Massachusetts court "orders that Joyce Bradwicke shall giue

unto Alex: Becke the so[=m]e of xx^s, for promiseing him marriage

w^{th}out her ffrends consent, & nowe refuseing to [p=]forme the

same."[603] Likewise in the Plymouth jurisdiction we find John

Sutton complaining "against Mary Russell, in an action of the case,

to the damage of two hundred pounds, for engageing herselfe to

another by promise of marriage, whenas shee had engaged herselfe by

promise of marriage vnto the said John before. The jury find for

the plaintiffe fifteen pounds damage, and the cost of the suite

which came to 1^{lb} 10^s 6^d."[604] But this did not entirely

end the matter. In 1662-63 the case was taken up for review, Mary

having in the meantime become the wife of John Jacob. After a

careful rehearing, the court reaches the curious decision that

Mary's "actinges haue bine such ... as may not reflect vpon her

disparagement, wee apprehending that what wrong hath bine vnto John

Sutton heerin hath bine rather occationed by her father than by ...

herselfe, shee haueing heard such thinges concerning the said Sutton

as might justly discurrage her, although the truth of these reports

wee see not cause to determine." Whereupon, oddly enough, it is

decreed "that the abouesaid John Sutton doe pay vnto John Jacob ...

the su[=m]e of fifty shillings."[605]

[Footnote 603: _Mass. Col. Rec._, I, 104.]

[Footnote 604: _Plym. Col. Rec._, VII, 101.]

[Footnote 605: _Ibid._, 109.]

Sometimes a parent joins with his aggrieved child in seeking

reparation; as when "Richard Siluester, in the behalfe of his

daughter, and Dinah Siluester in the behalfe of herselfe" recover

twenty pounds and costs from John Palmer, "for acteing fraudulently

against the said Dinah, in not [p=]forming his engagement to her in

point of marriage."[606]

[Footnote 606: _Ibid._, 101.]

The proceedings of the Massachusetts courts contain the record of

many similar suits under a variety of conditions. Some are ordinary

cases of breach of promise.[607] In 1735 a woman was awarded two

hundred pounds and costs at the expense of her betrothed who after

jilting her had married another, although he had first beguiled

her into deeding him a piece of land "worth £100."[608] Hopestill

Aldrich in 1764 was not so successful. The higher court on appeal

declined to give her damage, because after beginning her action

against the faithless Darius Daniels she had married David Bowin,

"who is still living and is her lawful husband."[609] A number

of cases afford further evidence of the danger lurking in the

New England doctrine of espousals, the indemnity sought being

intended in part to punish personal wrongs committed under cover of

pre-contract.[610]

[Footnote 607: For examples see _MSS. Records of the County Court

of Middlesex_ (Apr. 2, 1661), I, 185; _MSS. Early Court Files of

Suffolk_ (1663), No. 573; _MSS. Records of the Superior Court of

Judicature_ (1725-29), fol. 333; _ibid._ (1725-30), fol. 338;

_ibid._ (1730-33), fol. 196.]

[Footnote 608: _Ibid._ (1735-36), fol. 243.]

[Footnote 609: Case of Daniels _v._ Bowin _et ux._: _ibid._

(1764-65), fol. 4.]

[Footnote 610: Thus in 1686 John Row was sentenced for

"committing folly with Martha Beale, then servant to his father,

& publishing himself in marriage to her and now denying to

accomplish the marriage."--_MSS. Records of the County Court

of Middlesex_, IV, 218. For other cases of this kind see _MSS.

Records of the Superior Court of Judicature_ (1730-31), fol. 1;

_ibid._ (1745-46), fol. 253; _MSS. Early Court Files of Suffolk_

(Nov. 19, 1663), No. 600.]

Puritan lovers did not always hesitate to prosecute their parents

for refusing marriage when permission had once been given. Such

was the fate of Hope Allen, who admitted before the Massachusetts

court that "he did give his consent y^t y^e said Mr. Deacon should

haue his daughter;" and accordingly for breaking his word he was

censured, and had to pay a fine of ten pounds for his "irregular

procedure."[611] The action might take a still more interesting

form, including both the recreant parents and the promised consort

in the same complaint. In this way Richard Sutton alleges "against

Moses Symonds and Sarah, his wife, and Elizabeth theire daughter,

that shee, the said Elizabeth, hath made a promise of marriage

vnto him, and is hindered by the parents ... from proceeding with

her therin." The court after due consideration decides that Moses

ought to pay the said Richard "the su[=m]e of three pounds, for

satisfaction for his time and charges spent about the [p=]mises;"

but not without kindly releasing the couple from their engagement,

"vnless on second considerations they shall see cause to renew

theire former couenants."[612]

[Footnote 611: _Mass. Col. Rec._, IV, Part II, 458.]

[Footnote 612: _Plym. Col. Rec._, V, 116.]

These illustrations would seem to show that the blighted hopes and

disappointed affections of New England lovers were not judicially

reckoned at an extortionate figure. But those were the days of

"small change" in all domestic affairs. As a matter of fact, the

colonists were a close-fisted, bargaining race;[613] and in no

respect perhaps were they more prudent than in their matrimonial

transactions. Sometimes very careful contracts were executed in

court regarding the property rights of the future husband and

wife.[614] Often before betrothal and almost invariably before

wedlock an exact arrangement was made between the parents touching

the marriage portion on either side. The "higgling of dowries,"

suggests Weeden, was one of the most "singular practices" of New

England life.[615] Even paupers were provided a marriage portion at

the county's charge.[616] No shrewder hand at a bargain existed

than Judge Sewall, whose _Diary_ and _Letter-Book_ are crowded

with illustrations of this and other matrimonial customs. In 1712

we find him planning a match between his daughter Mary and young

Samuel Gerrish. So he dines with the father and "discourses" with

him "about my Daughter Mary's Portion. I stood for making £550 doe:

because now twas in six parts, the Land was not worth so much. He

urg'd for £600. at last would split the £50. Finally Feb. 20. I

agreed to charge the House Rent and Difference of Money, and make it

up to £600."[617]

[Footnote 613: For many proofs of the niggardly economy and

exceeding "nearness" of the old New Englander see BLISS,

_Colonial Times on Buzzard's Bay_; WEEDEN, _Ecc. and Soc. Hist.

of N. E._; and especially the _Diary_ and _Letter-Book_ of SAMUEL

SEWALL.]

[Footnote 614: An example is afforded by the _Plym. Col. Rec._,

IV, 163, where a stipulation is entered into between a widow and

a widower about to marry. By this agreement the children are to

remain "att the free and proper and onely dispose of theire owne

naturall parents, as they shall see good to dispose of them." The

wife is to retain "all her house and land goods & cattles, that

shee is now possessed of, ... to dispose of them att her owne

free will." If the husband die first, she is to have "one third

pte ... of his estate that hee dieth possessed of ... during her

life;" while in case of her death, the husband's property is to

go to his heirs, "excepting her wearing apparrell and her bed

and bedding ... which shee shall and may giue att her death to

whom she pleaseth." For another such marriage agreement see _MSS.

Early Court Files of Suffolk_ (1671), No. 1063. In the _MSS.

Records of the Superior Court of Common Pleas for Middlesex_

(1707), I, 103, is a suit to recover a gift made to a fiancée as

legacy.]

[Footnote 615: WEEDEN, _Ecc. and Soc. Hist. of N. E._, I, 413;

_cf. ibid._, I, 420, II, 541 ff.; also EARLE, _Customs and

Fashions_, 62 ff., 43 ff.]

[Footnote 616: Thus in 1638 "Mary Joanes was consented to

be taken care of by the countrey, and at the countreyes

charge."--_Mass. Col. Rec._, I, 230. Four years later "It was

ordered the Treasurer should give Mary Joanes five pounds against

her Marriage."--_Ibid._, II, 20.]

[Footnote 617: SEWALL, _Diary_, in 5 _Mass. Hist. Coll._, VI,

336. In like spirit the judge "dickers" with Joseph Dudley,

whose daughter had been sought in marriage for Samuel Sewall,

Jr.: _idem_, _Letter-Book_, in 6 _Mass. Hist. Coll._, I, 279-81;

_Diary_, in 5 _Mass. Hist. Coll._, VI, 80.]

The worthy magistrate was not less thrifty in managing his own

courtships, never for a moment allowing mere sentiment to get the

better of prudence. From the outset he was lucky; for in 1676,

according to tradition, he received as a dowry with his first wife,

Hannah Hull, her weight in pine-tree shillings, which her father,

the mint-master, measured out to him against her body in his own

scales. In reality, his wife brought him much more than this fabled

treasure; for six years after the wedding he came into the enjoyment

of the mint-master's large estate, thus laying the foundation of his

own fortune and official career.[618] Hannah lived with him more

than forty years, bearing him seven sons and seven daughters. On her

death the judge writes to a friend: "Wife expired on Satterday Oct.

19th, a little before Sun-Sett; and I lost my most constant lover,

my most laborious Nurse; which produc'd a Flood of Tears in our Bed

Chamber."[619]

[Footnote 618: "Her father died in six years, leaving his

fortune, which was large for that time, to his daughter and his

widow. It was practically one estate for the mother lived in the

most affectionate intimacy in Judge Sewall's family."--WEEDEN,

_Ecc. and Soc. Hist. of N. E._, I, 420; _cf._ HAWTHORNE,

_Grandfather's Chair_ (Boston, 1893), chap. vi, 459-64.]

[Footnote 619: SEWALL'S _Letter-Book_, in 6 _Mass. Hist. Coll._,

II, 83, 84 (letter of Jan. 25, 1718, referring to his wife's

death in 1717); _cf._ the _Diary_, in 5 _Mass. Hist. Coll._, VII,

143, 144.]

Soon, however, he was able to stem the torrent of his grief, for

on the sixth day of the next February he enters in his diary:

"Wandering in my mind whether to lead a Single or a Married

Life."[620] Indeed, several weeks before this, when his wife was

hardly two months dead, his mind and feet had begun to wander in the

direction of Madam Winthrop,[621] upon whom, in his usual kindly

way, he had bestowed certain tokens of his regard.[622] But for the

present the charms of Widow Winthrop had to yield to those of Widow

Dennison, whose goodly estate he had come to admire through having

drawn her husband's will.[623] Attending her home from the funeral

of her late consort, he "prayed God to keep house with her."[624]

This was in March. Presently he opens serious negotiations. He makes

her numerous presents, among which are "A pound of Reasons and

Proportionable Almonds;" a "Psalm-Book neatly bound in England with

Turkey-Leather;" the "last two News Letters;" "Dr. Mathers Sermons

very well bound," and "told her in it we were invited to a wedding;"

a "pair of Shoe-buckles, cost 5^s 3^d;" and "Two cases with a Knife

and a fork in each; one Turtle shell tackling: the other long with

Ivory handles Squar'd, cost 4^s 6^d."[625] In November, after much

visiting and chaffering, he came to the point. "I told her 'twas

time now to finish our Business: Ask'd her what I should allow her;

she not speaking; I told her I was willing to give Two [Hundred]

and Fifty pounds per a[=n]um, during her life, if it should please

God to take me out of this world before her. She answer'd she had

better keep as she was, than give a Certainty for an uncertainty;

she should pay dear for dwelling at Boston. I desired her to make

proposals, but she made none. I had Thoughts of Publishment next

Thorsday, the 6^{th}. But I now seem far from it. May God, who has

the pity of a Father, Direct and help me."[626]

[Footnote 620: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, VII,

165.]

[Footnote 621: _Ibid._, 151, 163, 164.]

[Footnote 622: Feb. 3, 1718, he writes: "I sent Madam Winthrop,

Smoking Flax Inflamed, the Jewish Children of Berlin, and my

small vial of Tears."--_Diary_, in 5 _Mass. Hist. Coll._, VII,

164. On March 14 he sends her a copy of the _Berlin Jewish

Converts_, _ibid._, VII, 177.]

[Footnote 623: _Ibid._, 177 (March 19, 1718), 180.]

[Footnote 624: _Ibid._, 178, 179 (March 26, 1718).]

[Footnote 625: _Ibid._, 182, 187, 188, 189, 190, 199.]

[Footnote 626: _Ibid._, 202 (Nov. 1, 1718).]

This is by no means the end. The courtship drags along, and they

continue to "higgle like hucksters and pedlers."[627] "She said she

thought twas Hard to part with _All_, and have nothing to bestow

on her Kindred. I said, I did not intend anything of the Movables,

I intended all the personal Estate to be to her. She said I seem'd

to be in hurry on Satterday ... which was the reason she gave me no

proposals. Whereas I had ask'd her long before to give me proposals

in Writing; and she upbraided me, That I who had never written her a

Letter, should ask her to write." So the thrifty judge, although his

"bowels" did "yern toward Mrs. Dennison," must even decide that God

"in his Providence" directed him to "desist."[628] Later the widow

grew more kind. On the following Lord's day she came to see him in

the evening, walking all the way from Roxbury. She "ask'd pardon if

she had affronted me;" and plainly let it be seen that she was not

averse to the match, if only she were not called upon to "put all

out of her Hand and power" and could "reserve something to bestow"

on her deceased husband's friends "that might want." But, says

Samuel, "I could not observe that she made me any offer of any part

all this while." So "she went away in the bitter Cold, no Moon being

up, to my great pain. I saluted her at parting."[629]

[Footnote 627: WEEDEN, _Ecc. and Soc. Hist. of N. E._, II, 542.]

[Footnote 628: SEWALL, _loc. cit._, 205 (Nov. 28, 1718).]

[Footnote 629: _Ibid._, 206, 207 (Nov. 30, 1718).]

Then the judge turned to Widow Tilly, whom he married on the

next Thanksgiving day (October 29, 1719), though she pleaded

her "Unworthiness of such a thing with much Respect."[630]

But the union was short-lived; for in May of the next year "a

very Extraordinary, awful Dispensation" came to the Judge.

"About midnight," he writes, "my dear wife expired to our great

astonishment, especially mine."[631]

[Footnote 630: _Ibid._, 225, 232, 233.]

[Footnote 631: _Ibid._, 255 (May 26, 1720).]

Already by the following December he wants God to "yet again provide

such a good Wife for me, that I may be able to say I have obtained

Favour of the LORD."[632] For in the meantime his mind has been

"wandering" again toward Catherine Winthrop. But the gentle widow

is now very coy and close at a bargain. After many visits and some

interesting love passages,[633] the judge writes, she "was Courteous

to me; but took occasion to speak pretty earnestly about my keeping

a Coach: I said 'twould cost £100. per a[=n]um: she said twould

cost but £40."[634] Clearly the issue was getting too sharply

joined; and it is not wholly surprising that the lady was a trifle

cool at her suitor's next visit.[635] Later he asked her "when our

proceedings should be made publick: She said they were like to be

no more publick than they were already. Offer'd me no Wine that I

remember." She did not offer to help him on with his coat, nor at

his request would she send her servant Juno to light him home.[636]

It is to be feared that Catherine had not forgiven her suitor for

leaving her for Widow Dennison, and was now getting "even." But

the judge stood manfully to his arms. At the next meeting "I told

her ... I was come to enquire whether she could find in her heart

to leave that House and Neighborhood, and go and dwell with me at

the South-end; I think she said softly, Not yet. I told her it did

not ly in my Lands to keep a coach.... Told her I had an Antipathy

against those who would pretend to give themselves; but nothing of

their Estate. I would [give] a proportion of my Estate with my self.

And I su[=p]os'd she would do so."[637] It goes without saying that

when Sewall made his next call the lady was "not at home." After one

or two more futile efforts[638] at coming to terms the grapes began

to sour. The aged wooer somewhat spitefully closes this unlucky

chapter of his courtships with the ungallant remark that "I did not

bid her draw off her Glove as sometimes I had done. Her dress was

not so clean as sometimes it had been. Jehovah jireh."[639] Thus

Eros regained his sight.

[Footnote 632: Letter of Dec. 13, 1720, to Alexander Dummer, in

SEWALL'S _Letter-Book_, in 6 _Mass. Hist. Coll._, II, 122, 123.]

[Footnote 633: "Asked her to Acquit me of Rudeness if I drew

off her Glove. Enquiring the reason, I told her twas great

odds between handling a dead Goat and a living Lady. Got it

off.... Told her the reason why I came every other night was

lest I should drink too deep draughts of Pleasure. She had

talked of Canary, her Kisses were to me better than the best

Canary."--SEWALL'S _Diary_, _loc. cit._, 267.]

[Footnote 634: _Ibid._, 269.]

[Footnote 635: _Ibid._, 270.]

[Footnote 636: "I pray'd her that Juno might light me home, she

open'd the shutter, and said twas pretty light abroad; Juno was

weary and gon to bed."--_Ibid._, 271.]

[Footnote 637: SEWALL, _loc. cit._, 272.]

[Footnote 638: _Ibid._, 273, 274.]

[Footnote 639: _Ibid._, 275.]

Several other attempts prove not more successful in providing the

venerable widower with a suitable place to rest his "weary Head

in Modesty."[640] But at last, humbly confessing himself, "aged,

and feeble, and exhausted," he offers himself as a husband to Mrs.

Mary Gibbs, of Newton, who is all too yielding in her reply.[641]

For with this gentle dame the astute wooer, erstwhile so meek, at

once proceeds to drive the sharpest bargain in the long history of

his courtships. As she had no property to leave him by will, he

insists upon the following harsh conditions: "I Rode to Newtown in

the Coach, and visited Mrs. Gibbs. Spake of the proposals I had

intimated per Mr. H. Gibbs; for her Sons to be bound to save me

harmless as to her Administration; and to pay me £100. provided

their Mother died before me: I to pay her £50. per a[=n]um during

her Life, if I left her a Widow. She said 'twas hard, she knew not

how to have her children bound to pay that Sum; she might dye in a

little time. Mr. Cotton, whom she call'd spake to the same purpose,

spake of a Joynture. I said I was peremptory as to the indemnifying

Bond; Offer'd to take up with that alone, and allow her forty pounds

per a[=n]um."[642]

[Footnote 640: EARLE, _Customs and Fashions of Old New England_.]

[Footnote 641: SEWALL'S _Diary_, _loc. cit._, 299 (Jan. 12,

1722), 300.]

[Footnote 642: _Ibid._, 300, 301.]

These terms, "hard" as they were and again insisted upon with most

unromantic bluntness,[643] were at length accepted by the amiable

Mary; who, surviving her kindly though grasping spouse, was no doubt

by his side, according to his wish, to "carry it tenderly"[644] with

him when he passed to his last reckoning.

[Footnote 643: "Madam, These are kindly to salute you, and to

say, that the Omission of Answering one or two of my Letters, and

of coming to Town, makes it needful to enquire, what the plain

meaning of your letter of Jan^y. 30^{th} may be. 'I do chuse

to comply with your last proposal, of Releasing my children,

and Accepting of the sum you proposed.' The last Proposal was,

For your children, or some in their behalf, to give Bond,

to indemnify me from all debts contracted by you before the

Marriage; and from all matters respecting the Administration.

This I told you, I peremptorially insist on. I was to secure

you Forty pounds per a[=n]um during the term of your natural

Life, in case of your Survival. This proposal must be taken

entirely, every part of it together, and if the words '_Releasing

my Children_' intend a Releasing them from this Bond, my last

Proposal is not accepted by you."--_Ibid._, 303 (Feb. 10, 1722).]

[Footnote 644: The judge was almost tempted to bargain with his

intended spouse for affectionate treatment. Speaking with "Mr.

Dan Oliver," Feb. 2, 1722, he says: "Told, I hoped she was not so

Attached to her children, but that she would carry it Tenderly

to me; or else there would soon be an end of an Old Man. I said,

I su[=p]osed they would clothe her, Answered, no question; And

would be Tender of me."--_Ibid._, 302. On Sewall's courtships and

New England wedding customs see HOWE, _The Puritan Republic_,

chap. v, 111 ff.]

VI. SELF-GIFTA, CLANDESTINE CONTRACTS, AND FORBIDDEN DEGREES

The Separatist and the Puritan, regarding marriage as "purely a

civil contractual relation," logically conceded that "the parties

may marry themselves as they may make other contracts." But, "like

all other civil institutions, this may be regulated by municipal

law. It should therefore be sanctioned by the civil authority;" and

for that reason persons may be fined for marrying without observing

the forms prescribed by the statutes.[645] Nevertheless such legal

restraint, however wholesome and reasonable, seems to have been

resented by the more radical as an interference with individual

liberty; though doubtless the disregard of the marriage laws was in

part due to the rudeness of an early society.

[Footnote 645: SHIRLEY, "Early Jurisprudence of New Hamp.,"

_Procds. New Hamp. Hist. Soc._ (1876-84), 307.]

Instances of self-betrothal and self-_gifta_ seem to have been

frequent in all the New England colonies. Thus, in 1678, Edward

Wanton was fined £10 by the general court of Plymouth for "marrying

himself," and Thomas Boarman paid £5 for the same offense. In

1684 William Gifford was fined fifty shillings for contracting a

"disorderly marriage."[646] More interesting is the case of Edward

Perry, on Cape Cod, who appears to have been guilty of self-marriage

in 1654. For this he was fined £5; and Thomas Tupper, of Sandwich,

for neglecting to perform the ceremony, "was 'disallowed' by the

court from solemnizing marriages in future."[647] Then "magistrate

Prence, when passing by on his return from court to Eastham, was to

marry him rightly. Perry refused to be re-married, and was fined £5

more, with the discouraging notice that his fine would be repeated

every three months till he complied."[648]

[Footnote 646: For these cases see GOODWIN, _Pilgrim Republic_,

599.]

[Footnote 647: FREEMAN, _Hist. of Cape Cod_, I, 208.]

[Footnote 648: GOODWIN, _loc. cit._]

Marriages by the primitive form of "hand-fasting" were not unknown

in Massachusetts. An intelligent French refugee, who visited Boston

two years after the revocation of the Edict of Nantes, writes that

"there are those who practice no Formality of Marriage except

joining Hands, and so live in Common."[649] But the most celebrated

instance of self-_gifta_ is the case of Governor Richard Bellingham,

who in 1641 entered into a private marriage with Penelope Pelham,

herself "about forming a contract with another."[650] "Two errors

more," says Winthrop, "he committed upon it. 1. That he would not

have his contract published where he dwelt, contrary to an order

of court. 2. He married himself contrary to the constant practice

of the country."[651] The governor was therefore indicted for his

offense by the grand jury; but "he declined to leave his place on

the bench" over which he presided, "in order to take a position in

the dock, and thus 'escaped both trial and punishment.'"[652] The

secretary "postponed the case amidst excitement, and it was not

again called up."[653]

[Footnote 649: SHURTLEFF, _Top. and Hist. Description of Boston_,

51.]

[Footnote 650: GOODWIN, _loc. cit._]

[Footnote 651: WINTHROP, _Hist. of New England_, II, 51, 52. One

might cheerfully forgive Governor Winthrop, had his sense of

historical propriety suffered him to go farther into the details

of the marriage customs. He apologizes parenthetically: "I would

not mention such ordinary matters in our history, but by occasion

of some remarkable accidents."]

[Footnote 652: MORSE, in _Mem. Hist. Bost._, IV, 572. The _MSS.

Records of the County Court of Middlesex_ (Apr. 1, 1656), I, 80,

contain the following case: "Mr. Joseph Hills being presented by

the grand jury for marrying of himself contrary to the law of the

Colony (page 38 of the old book); freely acknowledged his offence

and his misunderstanding the grounds whereon he went, which he

now confessed to be unwarrantable. Admonished by the court."]

[Footnote 653: GOODWIN, _loc. cit._ See further on Bellingham's

marriage HILDRETH, _Hist. of U. S._, I, 279; _Mem. Hist. Bost._,

I, 575.]

In spite of the constantly increasing severity of the penalties,

clandestine marriages gave the lawmaker much trouble.[654] This is

plainly revealed by the laws, already cited, relating to banns,

consent, registration, and celebration,[655] especially by those

of Rhode Island. The act of 1647 provides "that no contract or

agreement between a Man and a Woman to owne each other as Man and

Wife, shall be owned from henceforth threwout the Whole Colonie as

a lawfull marriage, nor their Children or Issue so coming together

to be legitimate or lawfullie begotten," but such as conform to

the statute.[656] The clause relating to the issue of irregular

marriages is noteworthy; for it is contrary to the usual tenor

of the colonial laws, which--anticipating the policy of William

III.--usually imposed severe penalties upon the offenders without

affecting the legitimacy of the children. But even so stringent a

remedy did not suffice. A new law in 1665 enforces that of 1647,

adding the penalty prescribed for "fornication" for non-observance;

but making the important exception in favor of existing irregular

marriages "that any persons now living within the confines expressed

in our late charter, ... that are reputed to live together as man

and wife by the common observation or account of there neighbours

before this act was passed, shall not come vnder any of the

censures, fines, or penaltyes in any of the fore premised acts or

orders, or in this present [order] concearning marriages," though

"there may have been some neglect of the due observation of the

rules and directions to that end therein contained."[657] It appears

that "some persons" had "taken advantage of the law" to render the

children of unregistered marriages illegitimate. An explanatory

statute was therefore enacted in 1698 declaring such marriages

lawful;[658] and in the subsequent legislation of this colony the

lawmaker was content to punish the parties to irregular marriages

without affecting the status of the offspring.[659]

[Footnote 654: Complaints of clandestine marriages may be found

in the New Hampshire records: see _Provincial Papers_, IV, 832;

_New Hamp. Hist. Coll._, VIII, 117, 118. There is an unsettled

case of alleged clandestine marriage in the _MSS. Early Court

Files of Suffolk_ (March, 1699-1700), Nos. 4590, 4663.]

[Footnote 655: See _Conn. Col. Rec._, I, 47, 48, 540; _New Haven

Col. Rec._, II, 599; and the Massachusetts laws relating to the

districts of ministers and justices, mentioned above.]

[Footnote 656: _R. I. Col. Rec._, I, 187; and STAPLES,

_Proceedings of the First Assembly_, 47, 48.]

[Footnote 657: _R. I. Col. Rec._, II, 104.]

[Footnote 658: _Ibid._, III, 361, 362; also in RIDER'S reprint of

the _Laws and Acts_ (1705), 44.]

[Footnote 659: See the act of 1701: _R. I. Col. Rec._, III, 435,

436. Compare RIDER'S _Laws and Acts_ (1705), 50; and his reprint

of _Charter and Laws_ (1719), 12, 13.]

The clergy of New England, and especially those of Massachusetts,

were much agitated over the question of the degrees of relationship

which should be prohibited in wedlock. Marriage of first cousins,

by affinity as well as by blood, and with a deceased wife's sister

was strongly opposed. That of cousins german had been legalized by a

statute of Henry VIII. in 1540;[660] and the earliest fruit of this

act was the marriage of that monarch with Catherine Howard, first

cousin of Ann Boleyn, his former wife.[661] Within less than two

years thereafter Catherine lost her head; and Sewall, who like the

Mathers regarded such marriages as incestuous, draws a grim moral

from her fate.[662] Indeed, the Puritans, were in sore straits,

fearing lest the "English Nation," while rejecting the excessive

strictness of the Roman church in this regard, had gone "beyond

the golden mean towards the other Extream."[663] In their anxiety

to obey the Mosaic law they even exceeded its requirements.[664]

Already in 1679 the general court, in reply to interrogation,

had decided that marriage with a deceased wife's sister was

unlawful,[665] thus taking the position which has been stubbornly

maintained ever since by the English House of Lords. Interest in

the matter seems, however, to have culminated in 1695. In that year

a meeting of the ministers of Boston, Charlestown, and Dorchester,

with Increase Mather at their head, came to the same conclusion as

the general court in 1679.[666] This led directly to the passage of

the celebrated law against incestuous marriages of the following

June,[667] by which the general court, though not taking "in hand

to determine what is the whole breadth of the divine commandment,"

proceeded, among other prohibitions, to forbid marriage with a

wife's sister or niece.[668] For violation of the law, we have

already seen, the culprit was condemned, as in the case of adultery,

to wear the "scarlet letter." This act[669] remained nominally in

force until after the Revolution; but the statute of 1785 in which

these prohibitions do not appear was adopted seemingly without

discussion.[670]

[Footnote 660: By 32 H. VIII., cap. 38: _Statutes at Large_

(London, 1763), II, 298; SEWALL'S _Letter-Book_, in 6 _Mass.

Hist. Coll._, I, 351-53, 369, 370.]

[Footnote 661: "The greatest good the Land got by this Match,

was a general leave to marry Cousin Germans, formerly prohibited

by the _Crown_, and hereafter permitted by the _Co[=m]on Law_.

A door of lawfull liberty, left open by God in Scripture; shut

by the Pope for his privat profit; opend again by the King,

first, for his own admittance ... and then for the service of

such Subjects as would follow him."--FULLER, _English Worthies_

(London, 1840), II, 352; SEWALL'S _Letter-Book_, in 6 _Mass.

Hist. Coll._, I, 369. Compare his letter of Feb., 1603/4, in _op.

cit._, 290-93.]

[Footnote 662: "They that will, from this Example, be fond of

Marrying Cousin-Germans, Let 'em!"--_Ibid._, II, 19.]

[Footnote 663: _Ibid._; _cf. ibid._, I, 290-93, where Sewall

opposes the marriage of his cousin John Sewall with the _widow_

of the latter's cousin german; also _ibid._, I, 17; and his

_Diary_, in 5 _Mass. Hist. Coll._, V, 96, 424, for further

illustrations.]

[Footnote 664: The Mosaic code does not clearly prohibit marriage

with a _deceased_ wife's sister: Lev., chaps. 18, 20; Deut.,

chaps. 23, 27. _Cf._ MIELZINER, _Jewish Law of Marriage and

Divorce_, 31-40; and chap. xi, sec. ii, _b_.]

[Footnote 665: WHITMORE, _Col. Laws of Mass._ (1672-86), 102;

_Mass. Col. Rec._, IV, Part II, 454.]

[Footnote 666: They published the decision in a printed tract of

eight pages: _The Answer of Several Ministers to that Case of

Conscience whether it is Lawful for a man to Marry his Wife's own

sister_: GODDARD, in _Mem. Hist. Bost._, II, 415 n. 2.]

[Footnote 667: "Friday, June 14. The Bill against Incest was

passed with the Deputies, four and twenty Nos, and seven and

twenty Yeas. The Ministers gave in their Arguments yesterday in

Writing; else it had hardly gon, because several have married

their wives sisters, and the Deputies thought it hard to part

them. 'Twas concluded on the other hand, that not to part them,

were to make the Law abortive, by begetting in people a conceipt

that such Marriages were not against the Law of God."--SEWALL,

_Diary_, in 5 _Mass. Hist. Coll._, V, 407; _cf._ MCKENZIE, in

_Mem. Hist. Bost._, II, 197.]

[Footnote 668: But, on the other hand, marriage with a husband's

brother or nephew is not expressly prohibited; _cf._ 5 _Mass.

Hist. Coll._, V, 407, note.]

[Footnote 669: _Acts and Resolves_, I, 209; also _Charters and

General Laws of Mass._, 283. GODDARD, _Mem. Hist. Bost._, II, 415

n. 2, is plainly in error when he says that this act "suggested

the leading incident of HAWTHORNE'S _Scarlet Letter_." It

probably originated in the similar law, already mentioned, for

the punishment of adultery which is expressed in nearly the same

words: see _Acts and Resolves_, I, 171.]

[Footnote 670: 5 _Mass. Hist. Coll._, V, 407 n. 1.]

The colonial laws on this subject were not allowed to slumber. From

the records of the Connecticut court of assistants, for instance,

it appears that in May, 1694, Nathaniel Finch is complained of "for

that he hath unlawfully married to Elizabeth Hemmeway," sister "of

the said Finch his first wife." The pleas of Finch's attorney are

"esteemed to be insufficient, and also of an offensive nature."

Accordingly, having considered all the facts of the case, the "rules

of God's word, the judgment of most able Divines, and the Laws of

this colony," the court finds the "said marriage to be incestuous

and unlawful," and therefore declares it "to be wholly null and

void;" further relegating the case to the county court to be held at

New Haven the next June, "to lay such punishment on the said Finch

for his said offence as the nature thereof doth require."[671]

[Footnote 671: _Historical Magazine and Notes and Queries_, II,

301.]

While the Massachusetts act of 1695 does not expressly prohibit a

woman from wedding her husband's brother, a passage in Sewall's

_Diary_ shows that such unions were already treated as unlawful. On

December 25, 1691, he writes, the "marriage of Hana Owen with her

Husband's brother, is declar'd null by the court of Assistants. She

commanded not to entertain him; enjoin'd to make a confession at

Braintrey before the Congregation on Lecture Day, or Sabbath, pay

fees of court and prison," and "to be dismissed."[672]

[Footnote 672: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V,

354. For the case see NOBLE'S _Recs. of the Court of Assistants_,

I, 361. Samuel Newton, of Marlborough, married his uncle's widow

and had two children by her. This marriage was judged void "by

the word of God, as also by the law of England": _ibid._, 342.

_Cf._ COWLEY, _Our Divorce Courts_, 30, 31.]

VII. SLAVE MARRIAGES

Finally in this connection a word regarding the treatment of slave

marriages in New England may not be wholly out of place. With

respect to the morality of slavery and the slave trade as viewed by

the Puritan the record is perfectly clear. He was no better and no

worse than his contemporaries. In his eyes the commerce in human

chattels, whether red, black, or white,[673] was as legitimate a

business as the handling of West India molasses; though like the

Spaniard he may sometimes have excused or extolled it as affording

a field for missionary work. "The seventeenth century," observes

Weeden, "organized the new western countries, and created an immense

opportunity for labor. The eighteenth coolly and deliberately set

Europe at the task of depopulating whole districts of Africa, and

of transporting the captives, by a necessarily brutal, vicious,

and horrible traffic, to the new civilizations of America....

New England entered upon this long path of twisted social

development--the wanton destruction of barbaric life in the hope of

new civilized life, this perversion of the force of the individual

barbarian into an opportunity for social mischief--with no more and

no less consciousness than prevailed elsewhere at that time. The

Winthrops and other Puritan colonists asked and received Indian

captives for slaves as freely as any partisan went for loot or

plunder."[674]

[Footnote 673: On white slaves in New England, and elsewhere in

America, see the valuable article of BUTLER, "British Convicts

Shipped to American Colonies," _American Historical Review_, II,

12-33.]

[Footnote 674: WEEDEN, _Ecc. and Soc. Hist. of New England_,

II, 449, 450. _Cf._ his entire discussion of the "African Slave

Trade" in New England, _ibid._, 449-72; and BANCROFT, _Hist. of

U. S._ (New York, 1888), II, 268-80.]

With respect to matrimonial rights nothing can be more misleading

than the self-gratulations of writers who have treated colonial

history from what Charles Francis Adams has aptly called the

"filio-pietistic" point of view.[675] Thus in his early edition

Bancroft, referring to the alleged mitigating character of

Massachusetts legislation, securing to the slave such protection

"as the Hebrew scriptures seemed to enjoin," declares that "this

brought about a total modification of the character of negro slavery

by giving to the slave the rights of marriage and the family."[676]

Palfrey goes even farther in his zeal, solemnly assuring us that

"from the reverence entertained by the Fathers of New England

for the nuptial tie, it is safe to infer that slave husbands and

wives were never parted."[677] In like spirit statesmen, jurists,

and historians have reiterated the assertion that slavery was not

hereditary in Massachusetts. "In all her annals," says Charles

Sumner, "no person was ever born a slave" on her soil; and if,

in fact, "the issue of slaves was sometimes held in bondage,

it was never by sanction of any statute or law of Colony or

Commonwealth."[678] Similar statements are made by Hurd, Washburn,

and Belknap.[679] Justice Gray declares that "previously to the

adoption of the State Constitution in 1780 negro slavery existed

to some extent, and negroes held as slaves might be sold, but all

children of slaves were by law free."[680] The unsupported dictum

of Palfrey is equally confident. "In fact," he says, "no person was

ever born in legal slavery in Massachusetts."[681]

[Footnote 675: See his admirable _Massachusetts: Its History and

Historians_ (Boston, 1893).]

[Footnote 676: Compare MOORE'S article "Slave Marriages in

Mass.," in DAWSON'S _Hist. Mag._, 2d series, V (Feb., 1869), 135,

to which I am much indebted.]

[Footnote 677: PALFREY, _Hist. of New England_, II, 30, note;

_cf._ MOORE, _loc. cit._, 135-37.]

[Footnote 678: SUMNER, in his speech in the Senate, June 28,

1854: _Works_, III, 384.]

[Footnote 679: According to HURD, _Law of Freedom and Bondage_,

I, 225, "the involuntary servitude of Indians and negroes in

the several colonies originated under a law not promulgated by

legislation, and rested upon the prevalent views of universal

jurisprudence, or of the _law of nations_, supported by the

express or implied authority of the home Government." Compare

WASHBURN, "The Extinction of Slavery in Mass.," 4 _Mass. Hist.

Coll._ (1857), IV, 333-46; the same in _Procds. Mass. Hist. Soc._

(1855-58), 188 ff.; and BELKNAP'S answer to TUCKER'S _Queries_

(1795), in 1 _Mass. Hist. Coll._, IV, 191-211, which on the

points under consideration is very superficial and misleading.]

[Footnote 680: See Justice Gray's note to the case of Oliver

_v._ Sale: _Quincy's Reports_, 29. The authorities there cited

are misleading and do not establish the assertions quoted. The

well-known apology for Massachusetts slavery by NATHAN DANE in

his _Abridgment_, II, 413, 426, 427, is equally unsupported

by the facts. The same view as that of Gray is taken by Chief

Justice Dana in Littleton _v._ Tuttle (1796): 4 _Mass. Reports_,

128, note; by Chief Justice Shaw in Commonwealth _v._ Aves: 18

_Pickering's Reports_, 208, 209; and it is repeated in _Cushing's

Reports_, 410. On the other hand, in Winchendon _v._ Hatfield:

4 _Mass. Reports_ (1806), 123, Chief Justice Parsons correctly

says "slavery was introduced" in Massachusetts "soon after its

first settlement, and was tolerated until the ratification of the

present constitution" in 1780. "The issue of the female slave,

according to the maxim of the civil law, was the property of her

master." The same opinion is held in Perkins, Town Treasurer of

Topsfield _v._ Emerson (1799): DANE'S _Abridgment_, II, 412; and

by Chief Justice Parker in Andover _v._ Canton (1816): 13 _Mass.

Reports_, 551, 552. In 1865 the errors of Gray, Dane, Webster,

and others were fully exposed by MOORE, _Notes on the History

of Slavery in Mass._, 10 ff., 22 ff., 94 ff., 98 ff.; yet it

is curious to see BISHOP, _Marriage, Divorce, and Separation_

(Chicago, 1891), I, 179 n. 1, 282, still accepting Gray's dictum

as authority.]

[Footnote 681: PALFREY, _Hist. of New England_, II, 30, note.]

Since the appearance of Moore's able monograph it is perhaps

needless to explain that the facts are against these comfortable

theories. Slavery was authorized by statute in Massachusetts under

sanction of the Mosaic law; and so the children of slave mothers

were also slaves.[682] The evils of the institution may, indeed,

have been somewhat mitigated by the simple industrial conditions

which then prevailed. The climate and soil were ill suited to slave

labor. Occasionally there may have been a mind far enough ahead of

the age to perceive dimly the social danger lurking in the system.

Almost the only clear voice raised against it is that of Samuel

Sewall,[683] whose practice nevertheless was not always consistent

with his doctrine.[684] Mixture of race was not favored. But not

until 1705 was intermarriage between a white person and a negro or

mulatto forbidden by statute.[685] Through Sewall's influence the

prohibition was not then extended to Indians;[686] and he succeeded

in having a clause retained in the act enjoining that "no master

shall unreasonably deny marriage to his negro with one of the same

nation."[687] A passage in his diary shows that the laws relating

to banns, as also, it is safe to infer, those regarding celebration

and registration, were applied in the case of such unions; while

at the same time we are given a pleasing picture of the humane

treatment which slaves sometimes received from their masters. On

September 26, 1700, he records that "Mr. John Wait and Eunice his

Wife, and Mrs. Debora Thair come to Speak to me about the Marriage

of Sebastian, Negro Serv^t of said Wait, with Jane, Negro Serv^t

of said Thair. Mr. Wait desired they might be published in order

to Marriage. Mrs. Thair insisted that Sebastian might have one day

in six allow'd him for the support of Jane, his intended wife and

her children, if it should please God to give her any. Mr. Wait

now wholly declin'd that, but freely offer'd to allow Bastian Five

pounds, in Money [=p] a[=n]um towards the Su[=p]ort of his children

[=p] said Jane (besides Sabastians cloathing and Diet). I persuaded

Jane and Mrs. Thair to agree to it, and so it was concluded; and

Mrs. Thair gave up the Note of Publication to Mr. Wait for him to

carry it to W^m Griggs, the Town Clerk, and to Williams in order to

have them published according to law."[688]

[Footnote 682: Compare sec. 91 of the "Body of Liberties," upon

which the apologists have mainly rested their case, with the

later version of the provision: WHITMORE, _Col. Laws of Mass._

(1660-72), 53, 125; _ibid._ (1672-86), 10; and read MOORE'S

convincing argument as to the significance of the altered

wording: _Notes on the Hist. of Slavery in Mass._, 10-18. For

Connecticut see FOWLER, "The Historical Status of the Negro,"

in DAWSON'S _Hist. Mag._, 3d series, III, 12-18, 81-85, 148-53,

260-66; STEINER, "Hist. of Slavery in Conn.," _J. H. U. S._, XI,

371-452; and HURD, _Law of Freedom and Bondage_, I, 267 ff.]

[Footnote 683: In 1700 Sewall, then a judge of the superior

court, wrote an anti-slavery tract entitled _The Selling of

Joseph_. It is reprinted in the _Procds. Mass. Hist. Soc._

(1863-64), 161-65; with the _Diary_ in 5 _Mass. Hist. Coll._,

VI, 16-20, note; and in MOORE, _Notes on Hist. of Slavery in

Mass._, 83-87. The next year JOHN SAFFIN, a judge of the same

court, replied to Sewall in _A Brief and Candid Answer_ (Boston,

1701); reprinted by MOORE, _op. cit._, 251-56. Compare SEWALL'S

letter _To the Rev^d. & aged Mr. John Higginson_ (Apr. 13,

1706), and his extract from the _Athenian Oracle_, II, 460-63,

both reprinted by MOORE, _op. cit._, 89-94. Sewall favored a law

requiring "that all importers of Negroes shall pay 40 shillings

per head to discourage the bringing of them." _Cf._ BLISS, _Side

Glimpses from the Col. Meeting-House_, 21; WEEDEN, _Ecc. and Soc.

Hist._, II, 450.]

[Footnote 684: According to Bliss, "as time passed on and

the slave trade flourished," Sewall "must have dismissed his

anti-slavery opinions;" for the following advertisement appears

in the Boston _News-Letter_ of June 23, 1726: "To be sold by Mr.

Samuel Sewall at his House in the Common, Boston, several likely

young Negro Men & Boys Just Arrived."--_Side Glimpses from the

Col. Meeting-House_, 21.]

[Footnote 685: "An Act for the better preventing of a spurious

and mixt issue" (Dec. 5, 1705): _Acts and Resolves_, I, 578,

579; _Charters and Gen. Laws_, Appendix, 748: "Be it enacted ...

that none of her majesty's English or Scottish Subjects, nor of

any other Christian nation within this province, shall contract

matrimony with any Negro or Molatto: nor shall any ... presume

to join any such in Marriage, on pain of forfeiting ... _fifty

pounds_."]

[Footnote 686: By the act of 1786 intermarriage of whites with

Indians, negroes, and mulattoes is forbidden.]

[Footnote 687: Of the bill for the act of 1705 SEWALL writes:

"Deputies send in a Bill against fornication or Marriage of White

men with Negros or Indians; with extraordinary penalties.... If

it be pass'd, I fear twill be an O[=p]ression provoking to God,

and that which will promote Murders and other Abominations. I

have got the Indians out of the Bill, and some mitigation for

them [the Negroes] left in it, and the clause about their Masters

not denying their Marriage." _Diary_: in 5 _Mass. Hist. Coll._,

VI, 143.]

[Footnote 688: _Ibid._, 22. The _MSS. Records of the General

Sessions of Suffolk_ (Jan. 30, 1709-10) contain the following

evidence: "Upon reading the Petition of Jack Negroman Servant

... relating to his ... being Married to Esther a Negro Woman

Servant [to another master] ... Ordered that [he] ... be not

denyed marriage provided he attend the Directions of the law for

the Regulation of Marriages." Compare "Flora's case" (1758) in

_MSS. Records of the Superior Court of Judicature_ (1757-59),

295, where the court held that the child of a female slave "never

married according to any of the Forms prescribed by the Laws of

this Land," by a person supposed also to be a slave, was not a

bastard. From this decision it is argued that in Massachusetts

all actual marriages were deemed good without any formal

solemnization or the presence of priest or magistrate. _Cf._

BISHOP, _Mar., Div., and Sep._, I, 179.]

Examples of such kindly usage were doubtless not uncommon among New

England slave-owners, just as they were often found at all times

in the South. But it is vain to apologize for a system, wicked

and corrupting in itself, on the ground of individual benevolence

or of laws which inconsistently in certain particulars seem to

recognize the spiritual and social equality of human chattels. In

a community where a black man or woman for sexual misconduct with

a member of the favored race was condemned by statute to be sold

into another province;[689] where Indian prisoners were divided

among the captors, and sold as legitimate spoil;[690] where African

fathers and mothers, bought on their native soil for watered rum

with short measure, were shipped across the ocean in stifling

death-traps,[691] to be "knocked down" from the auction block to the

highest bidder,[692] it seems rather more than absurd to assume that

under the benign influence of Puritan religion and morality slave

wives and husbands were never parted through the lust or greed of

their owners. Nor in general was the alleged hope of converting the

"benighted heathen to enjoy the blessings of a Gospel dispensation"

more than a soothing balm to quiet the incipient throes of a

rudimentary conscience in this regard.[693] Nay, in New England as

elsewhere, the Christianizing of the blacks was sometimes actually

discouraged, lest it should put in jeopardy the white man's property

in them. During the seventeenth and eighteenth centuries a typical

"case of conscience" arose. Would not the baptism of a slave in

effect be a dangerous admission of his spiritual equality with the

master? "Could an intelligent being, who, through the Mediator, had

participated in the spirit of God, and by his own inward experience

had become conscious of a Supreme Being, and of relations between

that Being and humanity be rightfully held in bondage? From New

England to Carolina, the 'notion' prevailed that 'being baptized is

inconsistent with the state of slavery;' and this early apprehension

proved an obstacle to the 'conversion of these poor people.' The

sentiment was so deep and so general that South Carolina in 1712,

Maryland in 1715, Virginia repeatedly from 1667 to 1748, set forth

by special enactments that baptism did not confer freedom."[694]

[Footnote 689: By the act of 1705 already cited: _Acts and

Resolves_, I, 578.]

[Footnote 690: So in the Pequot War: 4 _Mass. Hist. Coll._, III,

360; in King Philip's War; and by the _Articles of Confederation_

(1643), in _Plymouth Col. Rec._, IX, 4. Compare MOORE, _Notes on

Hist. of Slavery in Mass._, 1-10, 30-40.]

[Footnote 691: For an interesting discussion of this point see

BLISS'S chapter on "Rum and Slavery," _Side-Glimpses from the

Col. Meeting-House_, 12 ff.; and WEEDEN, _Ecc. and Soc. Hist._,

II, 449-72. Such men as Peter Faneuil and Thomas Amory, of

Boston, were "deep" in the rum and slavery business: BLISS, _op.

cit._, 15.]

[Footnote 692: For examples of advertisements of slave auctions

in New England see BLISS, _op. cit._, 15-19.]

[Footnote 693: "A deacon of the church at Newport esteemed the

slave trade with its rum accessories as home missionary work. It

is said that on the first Sunday after the arrival of his slaves

he was accustomed to offer thanks 'that an overruling Providence

had been pleased to bring to this land of freedom another

cargo of benighted heathen to enjoy the blessings of a Gospel

dispensation.'"--BLISS, _op. cit._, 22. In general on the slave

trade as missionary work see FROUDE, _History of England_, VIII,

439.]

[Footnote 694: BANCROFT, _Hist. of U. S._ (New York, 1888),

II, 275, 276. On this subject see BRUCE, _Economic Hist. of

Virginia_, II, 94-98; the discussion by FISKE, _Old Virginia and

Her Neighbors_, I, 16; II, 192-94; and GOODWIN, _The Colonial

Cavalier_, 178, who says: "Baptism was permitted to the slave,

but with the distinct understanding that it was to make no

difference in the condition of bondage of these brothers in

Christ." The Virginia law of 1667 will be found in HENING,

_Statutes_, II, 260.]

Naturally the Puritan was deeply exercised by the same scruples.

He sorely dreaded lest through extending the means of grace to his

serf Christ should inadvertently be put "in bondage." But he solved

the problem in the same way as his southern brother--at the expense

of the bondman. In Massachusetts as in Rhode Island slavery was

consecrated "without regard to the religion of the slave."[695]

Accordingly in 1696 "the ministers of Boston" submitted to the

general court "That y^e wel-knowne Discouragem^t upon y^e endeavours

of masters to Christianize their slaves, may be removed by a Law

which may take away all pretext to Release from just servitude,

by receiving of Baptisme." But to the credit of the court, we are

told, "this proposal was not noticed."[696] Over forty years later

a different result was reached by the clergy of Connecticut. At a

meeting of the General Association for that colony in 1738, "It

was inquired--whether the infant slaves of Christian masters may

be baptized in the right of their masters--they solemnly promising

to train them in the nurture and admonition of the Lord: and

whether it is the _duty_ of such masters to offer such children

and thus religiously to promise. Both questions were affirmatively

answered."[697] Thus the negro of Connecticut was admitted to the

covenant of grace without jeopardizing his owner's chattel interest

in his body.

[Footnote 695: It was consecrated "sans égard à la religion de

l'esclave": CARLIER, _Histoire du peuple américain_, I, 364;

_cf._ also HILDRETH, _Hist. of U. S._, I, 372.]

[Footnote 696: BLISS, _op. cit._, 92.]

[Footnote 697: Taken from MOORE, _Notes on Hist. of Slavery in

Mass._, 92, note, who cites _Records as Reported by Rev. C.

Chapin, D.D., Quoted in Jones's Religious Instruction of the

Negroes_, 34. _Cf._ STEINER, "Hist. of Slavery in Conn.," _J. H.

U. S._, XI, 386.]

The attitude of Massachusetts slave-owners on this problem is

revealed in Sewall's "question" from the _Athenian Oracle_: "What

then should hinder but these be _Baptized_? If only the Covetousness

of their Masters, who for fear of losing their Bodies, will

venture their Souls; which of the two are we to esteem the greater

_Heathens_? Now that this is notorious Matter of Fact, that they are

so far from persuading those poor Creatures to Come to _Baptism_,

that they discourage them from it, and rather hinder them as much

as possible, though many of the wretches, as we have been informed,

earnestly desire it; this we believe, none that are concern'd in

the Plantations, if they are ingenuous, will deny, but own they

don't at all care to have them Baptized. Talk to a _Planter_ of the

_Soul_ of a _Negro_, and he'll be apt to tell ye (or at least his

_Actions_ speak it loudly) that the Body of one of them may be worth

twenty Pounds; but the Souls of an hundred of them would not yield

him one Farthing; and therefore he's not at all solicitous about

them, though the true Reason is indeed, because of that Custom of

giving them their Freedom, after turning Christians." Whether this

custom be "reasonable" the writer doubts; for neither the "Father

of the _Faithful_" nor St. Paul commands masters to liberate their

slaves and Christianity does not "alter any _Civil Right_." In the

"mean time, if there be such a Law or Custom for their _Freedom_,

to encourage 'em to Christianity, be it reasonable or otherwise,

this is certain, that none can excuse those who for that Reason

should in any way hinder or discourage 'em from being Christians;

some of whose excuses are almost too shameful to repeat, since they

seem to reflect on the Christian Religion, as if that made Men

more untractable and ungovernable, than when bred in Ignorance and

Heathenism."[698]

[Footnote 698: _Athenian Oracle_, II, 460-63: in MOORE, _Notes on

Hist. of Slavery in Mass._, 93, 94.]

Much of the same casuistry is manifested in dealing with the

question of slave marriages. A bondman might be made amenable to the

law of banns and celebration; but his continued enjoyment of marital

rights and family life was absolutely precarious. As Moore suggests,

the proviso of the act of 1705 forbidding the "unreasonable denial

of marriage to negroes is very interesting. Legislation against the

arbitrary exercise and abuse of authority proves its existence and

the previous practice."[699] Besides, the adoption of that law was

prompted perhaps as much by self-interest as by regard for morality.

It was in effect a prudent police ordinance. Masters were liable

for the legal fines imposed on their slaves for sexual offenses.

It might be cheaper and less troublesome to allow orderly wedlock.

"Moreover it is too well known," writes Sewall, "what Temptations

Masters are under, to connive at the Fornication of their Slaves;

lest they should be obliged to find them Wives, or pay their Fines.

It seems to be practically pleaded that they might be Lawless;

'tis thought much of, that the Law should have satisfaction for

their Thefts, and other Immoralities; by which means, _Holiness to

the Lord_ is more rarely engraven upon this sort of servitude. It

is likewise most lamentable to think, how in taking Negroes out

of _Africa_, and selling of them here, That which God has joined

together, men do boldly rend asunder; Men from their Country,

Husbands from their Wives, Parents from their Children. How horrible

is the Uncleanness, Mortality, if not Murder, that the ships are

guilty of that bring great Crouds of these miserable Men and Women.

Methinks when we are bemoaning the barbarous Usage of our Friends

and Kinsfolk in _Africa_: it might not be unreasonable to enquire

whether we are not culpable in forcing the _Africans_ to become

Slaves amongst ourselves."[700]

[Footnote 699: MOORE, _op. cit._, 55.]

[Footnote 700: SEWALL, _The Selling of Joseph_: in 5 _Mass. Hist.

Coll._, VI, 17, 18.]

For another reason families were in constant danger of being

separated. The breeding of slaves was not generally regarded as

convenient or profitable in New England. According to Belknap,

"negro children were considered an incumbrance in a family; and when

weaned, were given away like puppies," and they were "publickly

advertised in the news-papers" to be so disposed of.[701]

[Footnote 701: BELKNAP'S answer to TUCKER'S _Queries_: in 1

_Mass. Hist. Coll._, IV, 200; _cf._ MOORE, _Notes on Hist. of

Slavery in Mass._, 57.]

That there was something grotesque in using the solemn ritual of

the church in the marriage of slaves was faintly realized. In 1748

Rev. Noah Hobart "challenged the want of flexibility in the forms

of the Liturgy of the Church of England, as tending 'to introduce

irreligion and profaneness'--especially in the use of the office

of Matrimony for marriages contracted between slaves." The use of

the phrase "with all my worldly goods I thee endow, in the name of

the Father, and of the Son, and of the Holy Ghost" he regarded as

particularly sacrilegious, although the prayers employed by the

Congregational minister at slave weddings were equally profane.[702]

[Footnote 702: MOORE, _Slave Marriages in Mass._: DAWSON'S _Hist.

Mag._, 2d series, V, 136, reprinting HOBART'S _Serious Address

to the Episcopal Separation in New England_ (1748), 77, 78;

and quoting in reply DR. JOHN BEACH'S _Calm and Dispassionate

Vindication_, 39, who in logic characteristic of the age argues

in "substance that as a Slave was capable of being made free,

and so of having property in a large estate, there was no

profaneness" in the use of the phrase mentioned.]

In at least one instance a sufficiently flexible special ritual was

composed which very frankly discloses the idea of its author, and

probably also that of a majority of his brethren, as to the real

character of a slave marriage. According to Moore, it was discovered

at Northampton, N. H., in 1868, by Mr. J. Wingate Thornton; and

it was prepared and used by Rev. Samuel Phillips, of Andover,

Mass., whose ministry there, beginning in 1710 and ending with his

death in 1771, was a prolonged and eminently distinguished service

of more than half of the eighteenth century." This "Form of a

Negro-Marriage" is a decidedly safe and practical service from the

master's point of view. The minister says:

"You S: do now in the Presence of God, and these Witnesses, Take

R: to be your _Wife_; Promising that so far as shall be consistent

with y^e Relation w^{ch} you now sustain, as a Servant, you will

Perform y^e Part of an _Husband_ towards her; And in particular,

you Promise, that you will _Love_ her: And that, as you shall have

y^e Opport^{ty} & Ability, you will take a proper _Care_ of her in

Sickness and Health, in Prosperity & Adversity: And that you will be

True & _Faithfull_ to her, and will Cleave to her _only, so long_

as God, in his Provd^{ce}, shall continue your and her abode in

Such Place (or Places) as that you can conveniently come together."

Similar words are repeated to the woman; and when each in turn has

sealed this unique troth-plight, the minister continues: "I then

agreeable to your Request, and w^{th} y^e Consent of your Masters

& Mistresses, do Declare, that you have Licence given you to be

conversant and familiar together, as _Husband and Wife_, so long as

God shall continue your Places of abode as aforesaid; and so long

as you shall behave your-selves as it becometh Servants to doe:

For you must, both of you, bear in mind, that you Remain Still as

really and truly as ever, your Master's Property, and therefore it

will be justly expected, both by God and Man, that you behave and

conduct your-selves, as Obedient and faithfull Servants towards your

respective Masters & Mistresses for the Time being."[703]

[Footnote 703: "And finally," continues the minister, "I exhort

& charge you to beware lest you give place to the Devil, so as

to take Occasion from the Licence now given you, to be lifted up

with _Pride_, and thereby fall under the Displeasure, not of Man

only, but of God also; for, it is written, that God resisteth the

Proud, but he giveth Grace to the humble.

"I shall now conclude w^{th} _Prayer_ for you, that you may

become good Christians, and that you may be enabled to conduct as

such; and in partic^r, that you may have Grace to behave suitably

towards each Other, as also dutifully towards your Masters &

Mistresses, not w^{th} Eye-Service, as Men-pleasers, but as

y^e serv^{ts} of Chr^t, doing y^e will of God from y^e heart."

Published by MOORE, _Slave Marriages in Mass._: in DAWSON'S

_Hist. Mag._, 2d series, V, 137.]

Through this ingenious device, it is clear, the permanence of the

slave's nuptial bond, with all his connubial and family rights, was

made absolutely dependent upon his owner's will.

[Footnote 583: See the long petition and confession of Samuel and