XII. OBLIGATORY CIVIL MARRIAGE IN THE NEW ENGLAND COLONIES

XII. OBLIGATORY CIVIL MARRIAGE IN THE NEW ENGLAND COLONIES

[BIBLIOGRAPHICAL NOTE XII.--For this chapter a large quantity of files and records of Massachusetts colonial and provincial courts has been examined. In the office of the Clerk of Courts for Middlesex county (Cambridge) have been used the Records of the County Court for Middlesex, 1649-86, 4 vols., MSS. folio, Vol. II missing; supplemented by the Files of the County Court for Middlesex, 1655-99; and followed by the Records of the Court of General Sessions of the Peace for Middlesex, 1692-1822, 9 vols., MSS. folio, the ninth volume containing also Records of the Court of Pleas and General Sessions of the Peace, October 1686, to March, 1688. In the office of the Clerk of the Supreme Judicial Court for the County of Suffolk (Boston) have likewise been examined the Records of the Court of General Sessions of the Peace, 1702-32, 4 vols., MSS. folio, with a fifth volume of fragments, 1738-80; the Minute Books of the Court of General Sessions of the Peace, January 3, 1743, to August 3, 1773, 5 vols., MSS. folio; the Records of the Superior Court of Judicature, Court of Assize and General Goal Delivery in the Province of Massachusetts Bay, 1692-1780, 33 vols., MSS. folio, Vol. II containing also the records of certain courts during the Andros period, 1686-87; and the Early Court Files of Suffolk, 1629-1800--being papers of colonial and provincial courts held in Suffolk county, of the Superior Court of Judicature held in the several counties, and of the Supreme Judicial Court prior to last century, with miscellaneous papers, the whole collection comprising several hundred volumes, of which only those for the period 1629-1730 have been covered by this investigation. Careful examination has also been made of the MSS. folio volume of Records of the County Court of Suffolk, October 1671, to April, 1680, in the possession of the Boston Athenæum.

Very important are the published Colonial Records of Plymouth (Boston, 1855-61); Massachusetts Bay (Boston, 1853-54); _New Haven_ (Hartford, 1857-58); Connecticut (Hartford, 1850-87); Rhode Island (Providence, 1856 ff.); and the _Provincial, Town, and State Papers of New Hampshire_ (Concord, 1867-83).

The necessary complement of the records is of course found in the various compilations of statutes. For Massachusetts it has seemed best to cite by preference Whitmore's fine facsimile edition of the Colonial Laws (Vol. I, 1660-72, Boston, 1887; Vol. II, 1672-86, Boston, 1889), which should be used in connection with his Bibliographical Sketch of the Laws of the Massachusetts Colony, 1630-86 (Boston, 1890); and Ames and Goodell's Acts and Resolves (5 vols., Boston, 1869-86), which with the three supplementary volumes (Boston, 1892-96), cover the period of the provincial charter and carry us beyond the Revolution. The following original digests have also been employed: The Book of the General Lawes and Libertyes of the Massachusetts Colony (Boston, 1660); The General Laws and Liberties (Boston, 1672)--these two earliest codes being those reprinted by Whitmore; Acts and Laws, 1692-1714 (Boston, 1714); Acts and Laws, 1692-1765 (Boston, 1769); Acts and Laws (Boston, 1759); and the collection entitled Charters and General Laws of the Colony and Province of Massachusetts Bay (Boston, 1814). The first digests of New Haven and Connecticut plantations are comprised in Trumbull's True Blue Laws (Hartford, 1876). There is also a reprint of the Code of 1650, to which is added extracts from Laws and Judicial Proceedings of New Haven Colony commonly called Blue Laws (Hartford, 1822); and a facsimile reprint of The Book of the General Laws of 1673 (Hartford, 1865). For the eighteenth century we have the Acts and Laws of his Majesties Colony of Connecticut in New England (New London, 1715); Acts and Laws of his Majesties English Colony of Connecticut (New London, 1750); Acts and Laws (New Haven, 1769); and the Acts and Laws (New London, 1784). For New Hampshire, the "Province Laws" published in Vol. VIII of the New Hampshire Historical Society Collections; the Acts and Laws passed by the General Court or Assembly, 1696-1725 (Boston, 1726); the Acts and Laws (Portsmouth, 1761); and the Acts and Laws, 1696-1771 (Portsmouth, 1771), have been cited. To follow the tangled thread of Rhode Island legislation on any subject is a perplexing task; but the development of the written marriage law may be traced with tolerable clearness in the published digests. See Staples's Proceedings of the First General Assembly ... and the Code adopted by that Assembly in 1647 (Providence, 1847); Rider's facsimile reprint of the code of 1705, entitled Laws and Acts of his Majesties Colony of Rhode Island, 1636-1705 (Providence, 1896); his facsimile reprint of the code of 1719, entitled The Charter and the Laws of his Majesties Colony of Rhode-Island in America (Providence, 1895); also the original Acts and Laws (Newport, 1730); with Rider's facsimile reprint, entitled Supplementary Pages to the Digest of 1730 (Providence, [1898]); the original folio editions of the Acts and Laws dated respectively 1745, 1752, 1767 (Newport); and Gregory's facsimile reprint of the compilation of 1772, entitled Acts and Laws ... passed since the Revision in June 1767 (Providence, 1893). The Plymouth codes are printed in Vol. XI of the Colonial Records of that colony; and they are given in convenient form in Brigham's Compact, with the Charter and Laws of New Plymouth (Boston, 1836).

Original material has also been gleaned from the Collections (Boston, 1806-97) and the Proceedings of the Massachusetts Historical Society (Boston, 1879 ff.); Bradford's _History of Plymouth Plantation_ (Boston, 1856); Winthrop's _History of New England_, 1630-49 (Boston, 1853); Hutchinson's _History of Massachusetts_, 1628-1774 (Vol. I, Salem, 1795; Vol. II, Boston, 1795; Vol. III, London, 1828); Cotton Mather's Magnalia Christi Americana (Hartford, 1820); Increase Mather's Answer of Several Ministers (Boston, 1695), on marriage with wife's sister; The Andros Tracts (Boston, 1868-74); Young's Chronicles of the Pilgrims, 1602-25 (2d ed., Boston, 1844); Historical Collections of the Essex Institute (Salem, 1896); Lechford's Note-Book, 1638-71 (Cambridge, 1885), idem, Plain Dealing (Boston, 1867); reprinted also in 3 _Mass. Hist. Soc. Collections_, III; Dunton's Life and Errors (Westminster, 1818); his Letters from New-England (Prince Society, Boston, 1867); the "Town Records of Boston," 1634-1777; and the "Town Records of Dorchester," both in the _Reports of the Boston Record Commission_; "Town Records of Salem," 1634-59, in Vol. IX of Hist. Coll. Essex Inst.; especially Sewall's "Diary," in 5 Mass. Hist. Coll., V, VI, VII (Boston, 1878-80); and his "Letter-Book," in 6 Mass. Hist. Coll., I, II (Boston, 1886), both of which afford a wealth of illustration for almost every phase of wedding and other social customs.

Among recent writings relating to the general subject most important are Shirley, "Early Jurisprudence of New Hampshire," in Proceedings of the New Hamp. Hist. Society, 1876-84 (Concord, 1885); Earle, _Customs and Fashions in Old New England_ (New York, 1894); Weeden, _Economic and Social History of New England_, 1620-1789 (Boston, 1891); Goodwin, Pilgrim Republic (Boston, 1888); Howe, Puritan Republic (Indianapolis, 1899); Arnold, History of Rhode Island (New York, 1874); Friedberg, Eheschliessung (Leipzig, 1865); Cook, "Marriage Celebration in the Colonies," in Atlantic Monthly, LXI (Boston, 1888); Bishop, Marriage, Divorce, and Separation (Chicago, 1891); Lodge, Short History of the English Colonies (New York, 1882); Trumbull, History of Connecticut (New Haven, 1818); Hollister, History of Connecticut (Hartford, 1857); Atwater, History of the Colony of New Haven (New Haven, 1881); Freeman, History of Cape Cod (Boston, 1869); Bailey, Historical Sketches of Andover (Boston, 1880); Bliss, _Side Glimpses from the Colonial Meeting-House_ (Boston, 1896); idem, Colonial Times on Buzzard's Bay (Boston, 1888); Brooks, _The Olden Time Series: The Days of the Spinning-Wheel in New England_ (Boston, 1886); articles by Scudder, Whitmore, Edes, McKenzie, Morse, and Goddard, in _Memorial History of Boston_ (Boston, 1882-83); and Newhall, _Ye Great and General Court_ (Lynn, 1897).

Illustrative material has likewise been gathered from a large number of writers, among whom are Palfrey, _History of New England_ (Boston, 1888-90); Carlier, Le mariage aux États-Unis (Paris, 1860); Oliver, Puritan Commonwealth (Boston, 1856); Doyle, English Colonies (New York, 1882-87); Ellis, _Puritan Age_ (Boston, 1888); Dexter, Congregationalism (New York, 1880); Bacon, Genesis of the New England Churches (New York, 1874); Belknap, History of New Hampshire (Dover, 1812); Green, Short History of Rhode Island (Providence, 1877); Sanford, History of Connecticut (Hartford, 1888); Hawthorne, Grandfather's Chair (Boston, 1893); Campbell, _The Puritan in Holland, England, and America_ (New York, 1892); Hildreth, History of the United States (New York, 1882); Snow, _History of Boston_ (Boston, 1824); Shurtleff, _Topographical and Historical Description of Boston_ (Boston, 1872); Gilman, _The Story of Boston_ (New York, 1889); Drake (S. G.), _History and Antiquities of Boston_ (Boston, 1854); Drake (S. A.), _Old Landmarks of Boston_ (Boston, 1889); Drake (S. A.), _The Making of New England_ (New York, 1887); Prime, _Along New England Roads_ (New York, 1892); Read, in the _Collections of the Old Colony Historical Society_, No. 2 (Taunton, 1880); and Brigham, in Proceedings of the Mass. Hist. Society, IV.

Among the works drawn upon in the treatment of special topics are Stiles's Bundling (Albany, 1871); supplemented by his History of Windsor (New York, 1859); and the very suggestive paper of Charles Francis Adams, Some Phases of Sexual Morality and Church Discipline in Colonial New England, reprinted from the Mass. Hist. Soc. Proceedings, June, 1891 (Cambridge, 1891); while there is an interesting passage relating to the same custom in Burnaby's Travels through the Middle Settlements in North America, 1759-60 (London, 1798); as also a characteristic reference in Irving's Knickerbocker History of New York (Philadelphia, 1871). For the first time the history of the stigma of the "scarlet letter" has been treated from the sources in Davis's careful monograph, The Law of Adultery and Ignominious Punishments (Worcester, 1895). In connection with the influence of the Levitical law on the New England conception of marriage and the family, Amram's The Jewish Law of Divorce (Philadelphia, 1896), and Mielziner's The Jewish Law of Marriage and Divorce (Cincinnati, 1884) are important. Of most service for the legal character of New England slave marriages are Moore's Notes on the History of Slavery in Massachusetts (New York, 1866); his "Slave Marriages in Massachusetts," in the Historical Magazine, XV (1869), containing a significant ritual used by Rev. Samuel Phillips, minister at Andover, 1710-71; and Steiner's "History of Slavery in Connecticut," in Johns Hopkins University Studies, XI (Baltimore, 1893). The originality of the system of civil registration created by the New England settlers is appreciated by Kuczynski, "The Registration Laws in the Colonies of Massachusetts Bay and New Plymouth," in Publications of the Am. Statistical Ass., VII, 65-73 (Boston, 1901). See also Bibliographical Note XV.]

I. THE MAGISTRATE SUPERSEDES THE PRIEST AT THE NUPTIALS

The continuity of English law and custom in the New England colonies is not more striking than the innovation. First of all it would indeed be strange if the planting of new states in the wilderness should not have afforded to thoughtful men a rare opportunity for freeing themselves from the trammels of antiquated methods and traditions which the "inertia of vested interests" might yet for ages sustain in the native land. In some instances the influences of a new and primitive environment might cause an unconscious return to the practices of earlier days. Religious and ecclesiastical ideas must necessarily play the leading part. In fact, the zeal with which the Pioneers of Plymouth and Massachusetts Bay proscribed the ceremonies and usages of the Roman and Anglican churches has had much to do with the character of civil institutions in the United States. On the part even of the Puritan there was thus sometimes a strong reaction in favor of the temporal power in matters hitherto regarded as exclusively pertaining to the spiritual jurisdiction. The sway of the so-called theocracy in Massachusetts and New Haven tended, sometimes inadvertently, to foster the growth of the American idea of complete separation of church and state. Thereby the forces of local self-government were quickened. Thus for a time the town-meeting and the congregation were practically one and the same; but authority was exercised in the name of the lay township and not in that of the ecclesiastical parish. So also the probate of wills, the administration of estates, the exercise of chancery jurisdiction,[357] and the supervision of primary and secondary education[358] were taken out of the hands of the church and vested mainly in the local community. The process of secularization in legal functions proceeded with rapid strides.

[Footnote 357: In Massachusetts the county courts had an equity jurisdiction; Mass. Col. Rec., V, 477, 478; Acts and Resolves, I, 75, 356; WASHBURN, Judicial Hist. of Mass., 34, 166, 167; HOWARD, Local Const. Hist., I, 330, 331. See the able article by WOODRUFF, "Chancery in Massachusetts," Law Quarterly Review (London, 1889), V, 370-86.]

[Footnote 358: An important epoch in the history of social progress is reached when our New England ancestors recognized the support of popular education as a proper function of local government. The event is all the more remarkable because it led the development of thought in the mother-country by more than two centuries and a half. However, the primary motive of the Massachusetts act of 1647 for the establishment of elementary and grammar schools was to provide religious knowledge. "It being one cheife p'iect of y^t ould deluder, Satan, to keepe men from the knowledge of y^e Scriptures, as in form^r times by keeping y^m in an unknowne tongue, so in these latt^r times by p'swading from y^e use of tongues, y^t so at least y^e true sence & meaning of y^e originall might be clouded by false glosses of saint seeming deceivers, y^t learning may not be buried in y^e grave of o^r fath^{rs} in y^e church & co[=m]onwealth," etc.--Mass. Col. Rec., II, 203. Cf. also HOWARD, Local Const. Hist., I, 66-70; and idem, "The State University in America," Atlantic Monthly, LXVII (1891), 332 ff.]

In no respect was the change more remarkable than in the administration of matrimonial law and in the conception of the marriage contract. Here, as in so many other instances, our ancestors anticipated the thought and the legislation of the mother-country by more than two hundred years.[359] It will be remembered that in the beginning of the seventeenth century--and ever since the thirteenth--English marriage law was in an anomalous and most chaotic state. The Reformation in England had brought no real change in the canonical conception of the form of wedlock, though its sacramental nature was denied. On the one hand was the church at the demand of the state trying to enforce ecclesiastical rites and to secure publicity by requirement of banns, parental consent, and registration; on the other was the "irregular" or common-law marriage, entered into without any of these safeguards, by mere private agreement; and the validity of the latter was not squarely impeached by the church, though the disregard of the priestly office was punished by spiritual censure. All this is changed in the colonies. In place of confusion and complexity is found simplicity. In New England particularly civil rites, civil registration, and uniform theory of marriage tend at once to prevent the manifold evils growing out of a lax or uncertain law. The conception of wedlock which existed there from the beginning was identical with that which later found expression in the writings of Milton and the legislation of Cromwell. Marriage was declared to be, not a sacrament, but a civil contract in which the intervention of a priest was unnecessary and out of place.

[Footnote 359: Many of the enactments of the colonies are described by Lord Campbell as "anticipating and going beyond most of the salutary amendments which have been adopted in the reigns of William IV. and Victoria."--GOODWIN, Pilgrim Republic, 251.]

Governor Winthrop, in commenting upon "a great marriage to be solemnized at Boston," in 1647, expresses the sentiment prevailing during the first three-quarters of a century after the settlement. The bridegroom was "of Hingham, Mr. Hubbard's[360] church," and the latter "was procured to preach and came to Boston to that end. But the magistrates, hearing of it, sent to him to forbear. The reasons were, 1. for that his spirit had been discovered to be averse to our ecclesiastical and civil government, and he was a bold man, and would speak his mind. 2. we were not willing to bring in the English custom of ministers performing the solemnity of marriage, which sermons at such times might induce, but if any ministers were present and would bestow a word of exhortation, etc., it was permitted."[361] The last remark reminds us of the benediction of the early Christian priest, who, like the Puritan, discriminated between the religious act and the marriage. Sermons, however, were originally proscribed at the nuptials, though they were permitted at the betrothal.[362]

[Footnote 360: Peter "Hobart": GOODWIN, Pilgrim Republic, 596; DEXTER, Congregationalism, 458 n. 166; YOUNG, Chronicles of the Pilgrims, 402 n. 2.]

[Footnote 361: WINTHROP, History of New England (ed. SAVAGE, 1853), II, 382 (313).]

[Footnote 362: See especially DEXTER, Congregationalism, 458, who has pointed out the error of Mr. Savage (WINTHROP, Hist. of New England, II, 382 n. 2) in confusing the nuptials with the "contraction."]

The early colonial laws, generally, required that all marriages should be celebrated before a justice of the peace or other magistrate, sometimes under penalty of nullity for those solemnized in any other way.[363] Where no statutory provision to the contrary existed the common-law marriage by private consent was valid.[364] The question now arises as to the causes which determined the establishment of civil marriage in the New England colonies. Was it set up in imitation of the practice in Holland? Did it come as a natural result of the general tendency of Protestant, and especially of Puritan, thought? Or was it perhaps the product of both influences combined? Already in the middle of the eighteenth century colonial historians were at a loss to account for it. Thus Governor Hutchinson makes a difficulty of understanding why the lay celebration was introduced. "Their laws concerning marriage and divorce," he says, "are somewhat singular. I suppose there had been no instance of a marriage, lawfully celebrated, by a layman in England, when they left it. I believe there was no instance of marriage by a clergyman after they arrived, during their charter; but it was always done by a magistrate, or by persons specially appointed for that purpose.... It is difficult to assign a reason for so sudden a change, especially as there was no established form of the marriage covenant."[365]

[Footnote 363: The fact that ministers as such were not allowed to celebrate in New England until near the end of the seventeenth century is, of course, well known to students. Very many, however, who now insist on the religious ceremony are ignorant of the fact; and it is not a little surprising to find so reputable a writer as AUGUSTE CARLIER, speaking of the "émigrants dans la Nouvelle Angleterre," declaring that marriage "se formait sous les yeux et avec l'approbation du chef de famille; il était consacré par le pasteur; d'après les prescriptions impératives de la loi, mais surtout pour obéir à la conscience d'un devoir religieux."--Le mariage aux États-Unis, 8, 9.]

[Footnote 364: BISHOP, Marriage, Divorce, and Sep., I, 176, 178; FRIEDBERG, Eheschliessung, 471, 472.]

[Footnote 365: HUTCHINSON, Hist. of Mass., I, 392. Compare COOK, "Mar. Celebration in the Colonies," Atlantic Monthly, LXI, 351, who, following Hutchinson, thinks that the colonists instituted "a form of marriage celebration unique in modern times."]

On the other hand, Governor Bradford believed that the civil celebration was introduced by the Pilgrims directly from Holland. The first marriage in Plymouth Plantation--that of Edward Winslow and Susannah White[366]--occurred on May 12 (22), 1621. This, he declares "according to y^e laudable custome of y^e Low-Cuntries, in which they had lived, was thought most requisite to be performed by the magistrate, as being a civill thing, upon which many questions aboute inheritances doo depende, with other things most proper to their cognizans, and most consonante to y^e scriptures, Ruth 4, and no wher found in y^e gospell to be layed on y^e ministers as a part of their office. 'This decree or law about marriage was published by y^e State of y^e Low-Cuntries An^o: 1590. That those of any religion, after lawfull and open publication, coming before y^e magistrats in y^e Town or Stat-house, were to be orderly (by them) married one to another.' Petits Hist. fol: 1029. And this practiss hath continued amongst, not only them, but hath been followed by all y^e famous churches of Christ in these parts to this time,--An^o: 1646."[367]

[Footnote 366: On this marriage see also GOODWIN, _Pilgrim Republic_, 181; SHIRLEY, "Early Jurisprudence of New Hampshire," Procds. New Hamp. Hist. Soc. (1876-84), 309; BACON, _Genesis of the New England Churches_, 339-41; YOUNG, _Chronicles of the Pilgrims_, 201.]

[Footnote 367: BRADFORD, Hist. of Plymouth, 101. The work mentioned by Bradford, according to Mr. Deane, "is probably _La grande Chronique ancienne et moderne de Holland, Zélande, Westfrise, Utrecht_, &c., by Jean-François le Petit, 1601, and 1611."--BRADFORD, op. cit., 101, note by the editor.]

The testimony of Bradford must, indeed, command our earnest attention, though in the matter of dates he is apparently misled by his authority. For, as already seen,[368] two of the Netherland provinces had established civil marriage as early as 1580; while it was not extended to them all until seventy-six years later. Nor is the mere fact that, seemingly without discussion, civil marriage was adopted by Massachusetts and her daughter-colonies, as well as by Plymouth, necessarily a fatal objection to this theory of origin, though it has a bearing upon the question which must be carefully considered. For the New England Pilgrim and Puritan alike were simply doing what their brethren did a few years after when they found their opportunity in the days of the Commonwealth. If America owes the institution of civil marriage to Holland, it is so not merely because of the residence of the Scrooby congregation at Leyden, but because of the profound influence which Dutch Puritanism exerted upon the Puritanism of England for a hundred years after the Spanish and Tudor persecutions began. It can scarcely be doubted that in various ways Dutch ideas made themselves felt in the remarkable legislative and constitutional experimentation of Cromwell's reign.[369] Moreover, the argument is strengthened by the fact that the Fathers of the English Reformation, unlike Luther and his followers, do not seem to have raised a single voice in favor of the lay ceremony.

[Footnote 368: See chap. x, sec. i.]

[Footnote 369: The evidence for the influence of Holland upon English and American institutions is presented in CAMPBELL, The Puritan in Holland, England, and America (New York, 1892), an able and timely work, calling attention to many facts strangely neglected by previous writers, but too sweeping in its general conclusion that American law and institutions, in their essential characteristics, are not Anglo-Saxon, but Dutch. For the interrelations of the Puritans in England and Holland see especially op. cit., I, 485 ff.; II, 44 ff.]

Nevertheless, though Dutch custom undoubtedly furnished a direct precedent which should not be ignored, it seems highly probable that without the influence of Holland the early establishment of civil marriage in New England was inevitable. It was required by the spirit of Protestantism. Under favorable conditions, which New England did and old England did not afford, it was sure to arise as a consequence of rejecting the sacramental theory of wedlock.[370] There is another factor of the problem which must be reckoned with. The New England Puritans were steeped to the marrow in Hebraism; and, as we shall presently see, the growth of a sentiment in favor of lay marriage was fostered by the example of the Jewish law.[371] It is vain to apologize for them on the ground that under the influence of the Mosaic code they really regarded the officiating magistrate as the "minister of God." In his "judicial" capacity the magistrate may, indeed, have been looked upon as a divine agent.[372] That is the well-known casuistry by which Luther and the early Protestants persuaded themselves that absolute divorce through the temporal court is not forbidden by the scriptural precepts.[373] But it is a grave error to suppose that the seventeenth-century Puritan had this in mind when he rejected the priestly ceremony. Doubtless he did not forget that marriage from its social and ethical sides is something higher than a mere civil contract. Yet for more than half a century after the settlement so intent was he in emphasizing its secular character that in the statutes the words "holy" or "sacred" as applied to it very seldom, if ever, appear. "Honorable" or some similar epithet is the strongest term usually employed. Even the publication of banns, as will hereafter be seen, was at first ordinarily required to be made, not on the sabbath, but at public "lecture" or on training day.[374]

[Footnote 370: At a very early day the English Separatists are found advocating civil marriage: see BACON, Genesis of the New England Churches, 107, who states Greenwood's view (1587).]

[Footnote 371: See sec. iv, below.]

[Footnote 372: ELLIS, Puritan Age, 185.]

[Footnote 373: See chap. xi, sec. ii.]

[Footnote 374: But publication of banns on the sabbath was not ordinarily prohibited, the laws being usually silent as to that, while naming other days. Probably in some towns from the beginning sabbath publication may have been customary, as it was, apparently, at Andover: BAILEY, Hist. Sketches of Andover, 75. Cf. BACON, Genesis of the New England Churches, 339-41, who also seems to misapprehend the attitude of the Separatist and Puritan in his anxiety to show that early New England marriages were not "godless."]

The difference between the colonists and their Anglican adversaries in this regard is brought out in an interesting way through the experience of Edward Winslow, whose second marriage has just been mentioned. In 1634 he was sent on public business to England, where, partly in the interest of Merry-Mount Morton, Mason, and Sir Ferdinando Gorges, he was accused by Archbishop Laud--whose scheme for setting up a governor-general and a bishop in the colonies seemed likely to be frustrated by Winslow's petition relative to the encroachments of the French and Dutch--of "teaching in y^e church publickly," and of performing the marriage ceremony. The latter offense he had committed in his capacity as magistrate. In reply to the charge he excused himself on the ground that the colonists were "necessitated so to doe, having for a long time togeather at first no minister; besids, it was no new-thing, for he had been so maried him selfe in Holland, by y^e magistrats in their statthouse."[375] But "with more courage and candor than caution, he proceeded to defend the practice on its merits, declaring that he knew no scriptural ground for confining this office to the clergy; while from the relations which marriage often had to property and to business obligations, there seemed good reason for making it a civil contract, as in Holland."[376] As a consequence Winslow was imprisoned in the Fleet for seventeen weeks.[377]

[Footnote 375: BRADFORD, Hist. of Plymouth Plantation, 327-30.]

[Footnote 376: GOODWIN, Pilgrim Republic, 386.]

[Footnote 377: Cf. PALFREY, Hist. of New England, I, 543.]

It appears certain, then, that in the two older colonies the lay ceremony was invariably required from the beginning.[378] But in neither case does there seem to have been any direct legislation on the subject for many years. Indeed, were there no prudential reason,[379] a positive legal sanction may well have been deemed superfluous while public opinion was so sensitive and so united. The first extant order of the general court of Plymouth requiring celebration before a civil officer was passed, it is said,[380] in 1671. But in this jurisdiction, as in Massachusetts, the assistants or "magistrates" had always exercised this function; and it had long been the custom for the general court to appoint commissioners in the particular towns to join persons in marriage.[381] The earliest statute of Massachusetts relating to the celebration is the act of 1646, providing "that no person whatsoever in this Jurisdiction, shall joyne any persons together in Marriage, but the Magistrate, or such other as the General Court, or Court of Assistants shal Authorize in such place, where no Magistrate is neer."[382] In practice the last provision of this act was carried out in various ways. Thus, for example, any citizen might be appointed for a particular town during the pleasure of the court.[383] Or, in absence of the regular officer, a commission might be issued to perform the ceremony in specified cases; as when Henry Chickering was given authority to marry "two or three couples, legally published at Dedham."[384] In one instance we find a curious optional commission in which are inserted the names of three persons, either one of whom is empowered to join "M^{r.} John Apleton and M^{rs.} Priscilla Glover" in marriage.[385] But, as a rule, one or more of the three commissioners, chosen for the ending of small causes in towns where no assistant resided, was authorized by the county court to perform this duty.[386]

[Footnote 378: WEEDEN, Ecc. and Soc. Hist. of New England, I, 217 ff., has some interesting gleanings on the civil contract.]

[Footnote 379: "To make a law that marriage should not be solemnized by ministers is repugnant to the laws of England; but to bring it a custom by practice for the magistrate to perform it is by no law made repugnant."--WINTHROP, Hist. of New England, II, 313, 314 (382). Cf. COOK, in Atlantic Monthly, LXI, 351.]

[Footnote 380: By BRIGHAM, Mass. Hist. Soc. Proceedings, IV, 283, 284. In general on civil marriage in New England see LECHFORD, Plain Dealing (Boston, 1867), 86, 87, or in 3 Mass. Hist. Coll., III, 94; DUNTON, Life and Errors (1686), in 2 Mass. Hist. Coll., II; Mem. Hist. of Boston, I, 196; READ, in Coll. of Old Col. Hist. Soc., No. 2, 9; FRIEDBERG, Eheschliessung, 470-78; DRAKE, Making of New England, 98; OLIVER, Puritan Commonwealth, 415; HILDRETH, Hist. of U. S., I, 192; WEEDEN, Ecc. and Soc. Hist. of New England, I, 217 ff., and Index; COOK, "Marriage Celebration in the Colonies," in Atlantic Monthly, LXI, 350 ff.; and especially the excellent chapter in EARLE'S Customs and Fashions of Old New England, 36-81.

SEWALL'S Diary, in 5 Mass. Hist. Coll., V, VI, VII; and his Letter Books, in 6 Mass. Hist. Coll., I, II, are a mine of information on social usages connected with dowers, courting, and wedlock. For very interesting records of marriages celebrated by magistrates at Salem in the seventeenth century see Hist. Coll. Essex. Inst., I, II.]

[Footnote 381: Plym. Col. Rec., II, 155; IV, 10, 22, 43, 65, 73, 74, 108, 186; VI, 217, etc. Cf. 3 Mass. Hist. Coll., II, 270. In one instance we find the court abrogating a commission: FREEMAN, Hist. of Cape Cod, I, 208.]

[Footnote 382: WHITMORE, Colonial Laws of Mass. (1660-72), 172; ibid. (1672-86), 102. Cf. Mass. Hist. Soc. Procds., IV, 283, 284. Compare NEWHALL, Ye Great and General Court, 367.]

[Footnote 383: So, in 1646, the court "granted co[=m]ission to M^r Edw^d Rawson to see people ioyne in marriage in Newberry," during pleasure, Watertown receiving a similar commission: Mass. Col. Rec., II, 166. In 1651, on petition, Captain William Gerrish was similarly appointed for Newberry: ibid., III, 256; IV, Part I, 65; cf. ibid., IV, Part II, 63; V, 483. Such commissioners were usually so appointed at the request of the inhabitants. See two further examples for 1654, ibid., III, 345, 346. On May 29, 1663, we find a "humble request by two men to General Court that Lieu. Goodinnough be authorized to marry their son and daughter. Granted with addition that Goodinnough be authorised to marry all who apply to him in that town [Sudbury?] and who have been properly published."--MSS. Early Court Files of Suffolk, No. 519.]

[Footnote 384: Mass. Col. Rec., IV, Part I, 407. In October, 1647, Captain Wm. Hathorne was commissioned to marry Thomas Jeggles and Abigail Sharpe, in the absence of "y^e major Gennerall."--Mass. Col. Rec., III, 115. The MSS. Early Court Files of Suffolk, No. 221, under date of Nov. 13, 1655, contains the following: "Order by the deputies in General Court for appointing Captain Hathorne to join together in marriage at Salem such as desire it, there not being in or near there any Magistrate. The Magistrates judge meet that the Deputies of Salem be authorized to join in marriage. The Deputies judge meet to leave the choice to the town of Salem."]

[Footnote 385: Mass. Col. Rec., IV, Part I, 74; cf. ibid., 407; and SHIRLEY, "Early Jurisprudence of New Hamp.," in Procds. of New Hamp. Hist. Soc. (1876-84), 308.]

[Footnote 386: At a "County Court at Charlestown," June 25, 1658, "Mr. Richard Russell at the request of the freemen of Charlestown is empowered to solemnize marriages and to take oaths in civil cases."--MSS. Records of the County Court of Middlesex, I, 133. See also Mass. Col. Rec., IV, Part I, 255 (1656), 322 (1658). The "associates," who sat with the "magistrates" to compose the county court, were often commanded to join persons in marriage: ibid., V, 139, 145, 101.]

The law and custom of the other New England colonies were essentially the same as those already discussed. Everywhere marriage was regarded as a civil contract and the celebration was performed by a civil magistrate. In New Hampshire members of the council could act.[387] In Rhode Island, besides the magistrate, "none but Quakers[388] and clergymen of the Church of England could perform the ceremony," and these were given such authority by special grant of the king.[389] The law of New Haven, 1648, is peculiar in requiring not only that the marriage be performed before a magistrate or someone expressly allowed by the general court; but when the persons to be united are "able to go forth," that it be solemnized in some public place,[390] under penalty of five pounds for "every such miscarriage."[391] In Connecticut, likewise, compulsory civil marriage was adopted.[392]

[Footnote 387: See the Cutt Code in Provincial Papers, I, 396, 397; also New Hamp. Hist. Soc. Coll., VIII, 23, 117, 118; cf. SHIRLEY, "Early Jurisprudence of New Hamp.," _Procds. New Hamp. Hist. Soc._ (1876-84), 307 ff.]

[Footnote 388: "A good story is told of Wm. Wanton--governor of Rhode Island, 1732-3--in Deane's Scituate. Before his removal from that place to Newport, prior to 1700, he had married Ruth Bryant, daughter of a Congregational deacon. Wanton's family were Quakers. Religious objections were made to the match on both sides. He said, 'Friend Ruth, let us break from this unreasonable bondage--I will give up my religion, and thou shalt thine, and we will go over to the Church of England, and go to the devil together.' They fulfilled this resolution so far, says our author, as to go to the Church of England, and marrying and adhering to the Church of England during life."--ARNOLD, Hist. of Rhode Island, II, 113, note.]

[Footnote 389: GREEN, Short Hist. of Rhode Island, 152, 153; ARNOLD, Hist. of Rhode Island, II, 113. By the code of 1647 marriages were to be celebrated ("confirmed") before the "head officer of the towne": STAPLES, Proceedings of the First Gen. Assembly, 1647 (Providence, 1847), 47, 48; R.I. Col. Rec., I, 187. On the head officer see HOWARD, Local Const. Hist., I, 88, 89. According to the law of 1663 the intentions are to be published, and "afterwards before one of the Gener^{ll} officers shall they be married": in RIDER'S reprint of the Laws and Acts (1705), 12. But in RIDER'S reprint of The Charter and the Laws (1719), 12, it is declared lawful for "any Assistant, Justice of the Peace, or Warden" to perform the ceremony. The act cited is one of a group dated 1662; and it appears to be a modification of the law just cited from the collection of 1705. The act of 1701 reserves the right of Quakers and members of the Church of England to be married according to their own usage: RIDER, Charter and Laws (1719), 48; also in Acts and Laws (Newport, 1730), 44, 46.]

[Footnote 390: "This requirement was sufficiently answered when spectators were present; and usually marriages were solemnized at the home of the bride."--ATWATER, Hist. of the Colony of New Haven, 363.]

[Footnote 391: New Haven Col. Rec., II, 599, 600.]

[Footnote 392: The civil-marriage form is recognized by the code of 1650: see TRUMBULL, Blue Laws, 167; COOK, in Atlantic Monthly, LXI, 351; SANFORD, Hist. of Conn., 125; and HOLLISTER, Hist. of Conn., I, 438. By the code of 1673 no person is to solemnize marriages "but the Magistrates, or such other as the General Court shall Authorize in such places where no Magistrate is near": see the reprint of The Book of the General Laws of 1673 (Hartford, 1865), 46.]

During the "usurpation" period, beginning in 1686, the laws requiring civil marriage were set aside. Joseph Dudley, who entered upon his duties as president of New England in May of that year, published "an order of council, authorizing and empowering ministers and justices of the peace, the order says, 'to consummate marriages,' after three several times publication or licence from the president or deputy."[393] With this compromise Governor Andros was not satisfied; and it was his intention to allow marriages to be performed only by the Episcopal clergy. To do this at once, however, was impracticable. "Magistrates," says Hutchinson, "still continued to give people in matrimony. Other provision could not immediately be made." For at the time there was but one Episcopal clergyman in the country; and "Sir Edmund considered the Congregational ministers as mere laymen. Randolph wrote to the bishop of London, 'I press for able and sober ministers, and we will contribute largely to their maintenance; but one thing will mainly help, when no marriages shall hereafter be allowed lawful but such as are made by the ministers of the church of England."[394] Another restraint upon marriage was accounted a still more serious hardship. "None were allowed to marry except they entered into bonds with sureties to the governor, to be forfeited in case there should afterwards appear to have been any lawful impediment."[395] This requirement in many cases amounted to a practical prohibition.[396]

[Footnote 393: HUTCHINSON, Hist. of Mass., I, 392, note; cf. SNOW, Hist. of Boston, 172, 173, 192; DRAKE, Hist. of Boston, 472, 473; SHIRLEY, "Early Jurisprudence of New Hamp.," _Procds. New Hamp. Hist. Soc._ (1876-84), 308; WHITMORE, in _Mem. Hist. Bost._, II, 1, 2.]

[Footnote 394: HUTCHINSON, Hist. of Mass., I, 318; cf. ARNOLD, Hist. of Rhode Island, I, 498, 499; GREEN, Short Hist. of Rhode Island, 103. TRUMBULL, Hist. of Conn., I, 372, followed by HOLLISTER, Hist. of Conn., I, 317, makes the following extraordinary statement: "Magistrates only were allowed to join people in the bands of wedlock. The governor (Andros) not only deprived the clergy of the perquisite from marriages, but soon superseded the laws for their support."]

[Footnote 395: HUTCHINSON, Hist. of Mass., I, 318. At least twenty-two of these bonds are extant. One, dated Jan. 11, 1686-87, given "unto Edward Randolph, Esq., Secretary of his Majesty's Territory and Dominion," may be found among the "Usurpation Papers" in 3 Mass. Hist. Coll., VII, 170; and also in New Hamp. Provincial Papers, II, 18. The other twenty-one are in the Early Court Files of Suffolk, Nos. 29996-30016. Following is a copy of the first:

"Know all men by these p^{re}sents that Wee John Harris of the Isle of Shoales ffisherman and Jabesh Negus of Boston Carpenter are houlden and firmely bound vnto his Excellency S^r Edmund Andros Kn^t Cap^t G[~r]all and Governour in Cheife vnder his most Sacred Ma^ty James the Second King of England ec in and over the Territory & Dominion of New England ~ In two Hundred pounds Currant money of New England aforesaid to be paid to his said Excellency S^r Edmund Andros his Executo^rs Admin^rs or Assignes. To which payment well and truly to be made Wee bind ourfelves and each of vs and each of our heires Executo^rs and Administrato^rs Joyntly and feurally in the whole and for the whole firmely by these p^{re}sents. Dated the 24th day of June Anno Dni 1587 Annoq R R Jacobii Secdi nunc Anglice ec Tertio.

"The Condicon of this Obligãcon is fuch That if hereafter there fhall not appeare any Lawfull Lett or Impediment by reason of any p^{re}contract Consanguinity Affinity or any other Lawfull meanes whatsoeur But that the above said John Harris and Mary Sparks of Ipswich Spinster may Lawfully solemnize Marriage togeather; And in the same afterwards Lawfully remaine and Continue Like man and wife~ according to the Lawes in that behalfe made and provided That then this Obligac[~c]on to be void or else to Remaine in full force & virtue.

+----+ "Signed Sealed and Deliured [Signed] John Harris |Seal| +----+ +----+ "In the p^{re}sence of vs. [ " ] Jabesh Negues |Seal| +----+ [Signed] "Jn Bonamy

[ " ] Wm Marshall"

The earliest bond is dated June 24, 1687 (1587 in the MS.), and the latest Oct. 24, 1688. They are alike in all essential respects, differing very slightly from the above sample either in form or wording. They are all for £200; and all are executed in Boston, as shown by the names of the witnesses, although only six are "dated in Boston." Seventeen of them were witnessed by John Bonamy, and thirteen by Pe[ter] Heyman. These seemingly were men who made a business of witnessing in Boston; and all the other witnesses appear in connection with them. The bridegroom is always a bondsman. In one case, that of the fifteenth bond, dated March 5, 1687/8, the other signer is a woman, but not the bride. The other bondsman is never of the same name as the bride to be. The places of residence are Salem, Boston, Piscataqua, Nevis, and Plymouth; the counties of Bristol, Suffolk, and Plymouth; while in one case the man is from "Rhode Island."]

[Footnote 396: TRUMBULL, Hist. of Conn., I, 372; HOLLISTER, Hist. of Conn., I, 317.]

The "first marriage at Boston with prayer-book and ring" occurred on May 18/28, 1686, just four days after Dudley received his commission as president of New England.[397] But there is evidence that zealous opposition to the religious ceremony existed up to the very beginning of this period. Thus, according to Savage, "Lawrence Vanderbosk, a Huguenot clergyman, undertook to solemnize marriages in Boston in 1685." But he was brought before a tribunal for this enormity and promised "to do no more such things," yet in September, says Judge Sewall, "he joined together Giles Sylvester and Hannah, widow of Benjamin Gillam. The reverend offender went to New York the same week."[398]

[Footnote 397: GOODWIN, Pilgrim Republic, 596; DRAKE, _Hist. of Boston_, 472; DOYLE, Eng. Colonies, III, 232.]

[Footnote 398: Note by WHITMORE, Andros Tracts, II, 37. "'Tis confessed," says Increase Mather referring to this incident, "that once or twice a Debauched Priest has appeared amongst them; particularly one Vardenbosch, who, besides the good work of Baptizing a noted whore or two of his acquaintance, made private Marriages without any previous publication of Banes (which is a nusance & Bane to all humane society); and yet so tender was the government as only to give them some Orall Rebukes, upon which the guilty Knaves have run away."--MATHER, "A Vindication of New England," Andros Tracts, II, 36, 37. For the passage in SEWALL'S Diary referred to, see 5 Mass. Hist. Coll., V, 98. There is a discussion of the first clerical marriage in New England, with reference to Vanderbosk, in Historical Magazine and Notes and Queries, VIII, 279, 348.]

Gradually, however, the stern Puritanism of the colonists became softened; the prejudice against ecclesiastical rites rapidly subsided; marriages were solemnized even by the Congregational clergy;[399] and soon after the struggle for the charters, laws were enacted allowing the ministers of all denominations to perform the ceremony. Yet, in Rhode Island, it was not until 1733 that the "settled and ordained ministers and elders of every society and denomination of Christians" were permitted to join persons in marriage, the legal fee therefor being fixed at three shillings.[400] By an act of October, 1694, the same privilege was conferred upon the "ordayned ministers of the severall plantations" of Connecticut--in order, says the general court, to satisfy "such as are conscienciously desirous to be" so joined.[401] For Massachusetts a similar statute was passed in 1692, authorizing all "settled ministers" to solemnize marriages, but only in their "respective towns;" while, on the other hand, the authority of the justice of the peace extended throughout the county.[402] The careful limitation of the respective districts of the minister and magistrate was doubtless intended to act as a check upon clandestine unions, as by the more stringent act of 1695. By this statute none may join any persons in marriage who are not inhabitants or residents of the county or town; nor without a proper certificate of due publication and parental consent from the clerks of the towns where the parties respectively dwell. For celebrating a marriage contrary to the act the minister or justice suffers a penalty of fifty pounds and is forever disabled to join persons in marriage, with the added liability of prosecution from the parent or guardian.[403] By several subsequent acts the powers of the clergy are still further enlarged. Thus in 1763 they are empowered to solemnize marriages in "parishes" and "districts" composed of "parts of towns" in "as ample a manner" as in the several towns where they dwell.[404] In 1773 they are allowed to perform the ceremony, not merely within their official districts, but for any whose "ministerial taxes" they are entitled to receive; or if for any cause a parish is without a minister, or if the incumbent himself desires to get married, then the next minister of the same denomination in the town may lawfully act.[405]

[Footnote 399: During the Andros period Rev. Charles Morton--who was installed as pastor of the church in Charlestown, Nov. 5, 1686--began to solemnize marriages. He was probably the first Congregational minister in New England who did so. See EDES, Mem. Hist. of Boston, II, 315.]

[Footnote 400: Rhode Island Col. Rec., IV, 490; RIDER, Supp. Pages to the Digest of 1730, 258, 259; Acts and Laws (1745), 176. Cf. ARNOLD, Hist. of R. I., II, 113; GREEN, Short Hist. of R. I., 152, 153.]

[Footnote 401: Conn. Col. Rec., 136. As the law stood in 1769, marriages might be solemnized by magistrates and justices, each within his own county, and by any ordained minister within his town or society during his continuance in the work of the ministry: Acts and Laws (New Haven, 1769), 144.]

[Footnote 402: Acts and Resolves, I, 61. On this act JUDGE SEWALL makes the following characteristic entry in his Diary: "Nov. 4, 1692. Law passes for Justices and Ministers Marrying persons. By order of the Co[=m]ittee, I had drawn up a Bill for Justices and such others as the Assembly should appoint to marry: but came new-drawn and thus alter'd from the Deputies. It seems they count the respect of it too much to be left any longer with the Magistrate. And salaries are not spoken of; as if one sort of men might live on the Aer. They are treated like a kind of useless, worthless folk."--5 Mass. Hist. Coll., V, 368. The marriage fee was fixed by this act at three shillings.]

[Footnote 403: Charters and General Laws (Boston, 1814), 285; Acts and Resolves, I, 209, 210. In Nov., 1704, James Gardner, "preacher of the Gospel" at Dartmouth, that town being destitute of an "ordained minister," was allowed to solemnize marriages: ibid., VIII (Appendix, Vol. III), 92.]

[Footnote 404: Acts and Resolves, IV, 622; Charters and Laws, 655. Cf. the earlier act of 1716-17: Acts and Resolves, II, 60.]

[Footnote 405: Acts and Resolves, V, 231; Charters and Laws, 679.]

So it appears that the proclamation of President Dudley in 1686 marks an epoch of some importance in institutional history. For by it the principle of American law, generally recognized at present by the statutes of the various states, and imitated by English legislation, was first recognized. Almost everywhere in this country the lay and the religious celebrations are equally valid; and it is not without interest to note that long before the Revolution the priest had once more practically superseded the magistrate at the nuptials.[406] It was already regarded as good social "form" to have the nuptials solemnized by religious rites.

[Footnote 406: In Hutchinson's time marriages were usually performed by the clergy. "Although," he says, "the law admits of its being done by a justice of the peace, yet not one in many hundred is performed by them;" and he adds in a note: "Perhaps, in a few years, the people of England will be equally well satisfied with the provision made by the late marriage act, and no body will be at the pains of a journey to Scotland to avoid conformity to it."--HUTCHINSON, Hist. of Mass., I, 392, 393.]

No prescribed marriage ritual existed. The intention of the persons entering into the covenant might be expressed in any fitting words.[407] In the early period weddings were usually celebrated quietly in the home of the bride. But it must not be understood that all festivity was for long rigorously proscribed. Soon feasting was added to prayer and the singing of psalms.[408] A sumptuary law of 1637, forbidding the sale of buns and cakes in the markets, victualling houses, and elsewhere, carefully makes an exception of "such cakes as shalbee made for any buriall, or marriage, or such like speciall occation."[409] The ancient practice of our teutonic ancestors of "bedding" the newly married pair was maintained in some quarters. Judge Sewall had that experience when he took his second wife.[410] "In Marblehead bridesmaids and groomsmen put the wedded couple to bed;" and we are told that "along the New Hampshire and upper Massachusetts coast, the groom was led to the bridal chamber clad in a brocaded night-gown. This may have occasionally taken place among the gentry," comments Mrs. Earle, "but I fancy brocaded night-gowns were not common wear among New England country folk."[411] Another "survival" was the sham "bride-stealing" which was long kept up in the Connecticut valley. "The last bride stolen in Hadley was Mrs. Job Marsh, in the year 1783;" and to this day "in certain localities in Rhode Island, the young men of the neighborhood invade the bridal chamber and pull the bride downstairs, and even out-of-doors, thus forcing the husband to follow to her rescue. If the room or house-door be locked against this invasion, the rough visitors break the lock."[412] Furthermore, numerous instances of "smock marriages" in New England are recorded. Here the English superstition elsewhere mentioned[413] took the special form that "if the bride were married 'in her shift on the king's highway,' a creditor could follow her person no farther in pursuit of his debt."[414]

[Footnote 407: See GILMAN, The Story of Boston, 177, 178, for an account of the marriage ceremony in the time of the Mathers.]

[Footnote 408: LODGE, Short History, 462.]

[Footnote 409: Mass. Col. Rec., I. 214; cf. ATWATER, Hist. of the Col. of New Haven, 363; BAILEY, Hist. Sketches of Andover, 74, 75; WEEDEN, Ecc. and Soc. Hist. of N. E., I, 113.]

[Footnote 410: SEWALL, Diary, in 5 Mass. Hist. Coll., VII, 233.]

[Footnote 411: EARLE, Customs and Fashions, 73, 74.]

[Footnote 412: EARLE, Customs and Fashions, 77. "A poem, by Mrs. Emma Willard, entitled 'Bride-Stealing, a Tale of New England's Middle Ages,' is preserved in Everest's Poets of Connecticut. It gives a poetical account of one among many instances of 'stealing the bride' that occurred in the early days of the colony."--HOLLISTER, Hist. of Conn., I, 438, note. See also STILES, Windsor, 475; WEEDEN, Ecc. and Soc. Hist. of N. E., I, 295; and HUNTINGTON, Celebration of the 200th Anniversary of Hadley (Northampton, 1859), 43.]

[Footnote 413: See above, chap. x, sec. ii, p. 441, note 3.]

[Footnote 414: EARLE, Customs and Fashions, 77-79, where several instances are discussed. See also PRIME, Along New England Roads; WEEDEN, Ecc. and Soc. Hist. of N. E., II, 538.]

In the eighteenth century weddings were accompanied by much revelry and extravagance. Gloves, rings, and scarves, as at funerals, were given away in such profusion as to call for legislation to check the abuse.[415] Unstinted feasting and drinking were the order of the day. "Sack-posset" appears to have been the favorite wedding beverage.[416] "All the friends were entertained at the bride's home with a collation or supper, and afterward a dance; while in the country they were the most important social events. The banns were proclaimed in church, and all the neighbors were invited from the pulpit to attend the ceremony. On the day of the wedding muskets were fired, a procession was formed, and marched to the bride's house, where the marriage took place; and then came a dinner, a dance, and great merry-making. Usually these wedding feasts lasted through the day and evening, but they were sometimes kept up for two or three days. On one occasion at New London there was a great wedding dance on the day after the marriage, when ninety-two ladies and gentlemen assembled and proceeded to dance ninety-two jigs, fifty-two contra-dances, forty-five minuets, and seventeen hornpipes. This was probably an extreme case; but all over New England weddings were great occasions, and were celebrated with much pomp and rejoicing."[417]

[Footnote 415: NOURSE, Hist. of the Town of Harvard, Mass., 1732-1893 (Harvard, 1894), 498, gives details as to marriage fees received and entered in his record by the local clergyman. At first John Seccomb usually had 5 shillings; later, about 1750, his fee became "one pound old tenor;" still later generally "a dollar," or "half a dollar," and once a "pistareen." From 1760 Rev. Joseph Wheely usually records "2£ 5s." During the Revolution the ordinary charge was six shillings legal money.]

[Footnote 416: Sack-posset was compounded of milk, spirits, and other ingredients; and it was eaten with a spoon: SEWALL'S Diary, in 5 Mass. Hist. Coll., VI, 403, note. On the wonderful mixed drinks of the New England Puritans see MRS. EARLE'S delightful chapter on "Old Colonial Drinks and Drinkers," Customs and Fashions, 163-83; and also BLISS, Side Glimpses from the Colonial Meeting-House, 12-28.]

[Footnote 417: LODGE, Short History, 462, 463; cf. SANFORD, Hist. of Conn., 125. BAILEY, Hist. Sketches of Andover, 74-78, gives interesting details as to weddings and marriage settlements; and BROOKS, Olden Time Series: Days of the Spinning-Wheel, 32, 33, reprints specimens of marriage notices taken from newspapers of the eighteenth century. On these festivities, advertisements, and settlements see also EARLE, Customs and Fashions, 60-77.]

Of the New England marriage celebration at the beginning of the eighteenth century we have some vivid, though imperfect, sketches from the inimitable pen of Judge Sewall. Next to funerals, weddings seem to have been his chief recreation. The brief and naïve entries in his Diary reveal to us the mingled praying, psalm-singing, and posset which enlivened those festive occasions. Thus on October 22, 1713, he writes: "I go to Salem.... See Mr. Noyes marry Mr. Aaron Porter and Mrs. Susan Sewall, at my Brother's. Was a pretty deal of Company present.... Mr. Noyes made a Speech, said Love was the Sugar to sweeten every condition in the married Relation. Pray'd once. Did all very well. After the Sack-Posset, etc., Sung the 45th Psalm from the 8th verse to the end, five staves. I set it to Windsor Tune. I had a very good Turkey-Leather Psalm-Book which I look'd in while Mr. Noyes Read: and then I gave it to the Bridegroom saying, 'I give you this Psalm-Book in order to your perpetuating this song: and I would have you pray that it may be an Introduction to our Singing with the Choir above.'"[418]

[Footnote 418: SEWALL'S Diary, in 5 Mass. Hist. Coll., VI, 403.]

Again in 1720 we find him solemnizing the marriage of his daughter, Mrs. Judith Sewall, with Mr. William Cooper. "I said to Mr. Simeon Stoddard and his wife, Sir, Madam, The Great Honor you have conferr'd on the Bridegroom and the Bride, by being present at this Solemnity does very conveniently supercede any further enquiry after your Consent. And the part I am desired to take in this Wedding, renders the way of my giving my Consent very Compendious: There's no maner of room left for that previous Question, Who giveth this Woman to be married to this Man? Dear child, you give me your Hand for one moment, and the Bridegroom forever. Spouse, You Accept and receive this Woman now given you, etc. Mr. Sewall pray'd before the Wedding, and Mr. Coleman after. Sung the 115. Psalm from the 9. verse to the end, in the New Hall, St. David's which I set. Then we had our Cake and Sack-posset."[419]

[Footnote 419: Ibid., VII, 253.]

II. BANNS, CONSENT, AND REGISTRATION

It is a fact of great historical interest that in the New England colonies the administration of matrimonial law was relegated to the sphere of local self-government. The requirement of previous publication, parental consent, and registration was everywhere carried into effect by the officers of the town as a part of their regular functions; and by-laws for their guidance were enacted in town-meeting.

The first extant statute for the regulation of marriage is contained in the revision of the Plymouth laws made in 1636, and repeated under a slightly altered form in the revision of 1658. It is a model of brevity and precision; and it marks an epoch in the history of English jurisprudence, attempting, as it does in few words, a remedy for many of the evils which continued for two centuries to vex the mother-country. No one "under the covert of parents" is allowed to marry without their approbation. But in case such approval "cannot be had then it shall be with the consent of the Gove[~r] or some assistant to whom the persons are knowne whose care it shall be to see the marriage be fitt before it be allowed by him." After the consent of parent or magistrate has thus been obtained, the marriage is to be published in "meeting" three several times before it is solemnized. Or, if there is no meeting, then fifteen days' notice by posting in the usual public place shall be sufficient; provided the "writing be vnder some magistrats hand or by his order."[420]

[Footnote 420: Plym. Col. Rec., XI, 13, 190; cf. PALFREY, Hist. of New England, II, 20; and BRIGHAM, Plym. Col. Laws, 44, 272.]

The Old Colony, likewise, made careful provision for registration. By an act of 1646 it is declared the duty of the town clerk to keep a register of the "day and yeare of the marriage, birth, and buriall of euery man, woman, and child" within his township. He is to have "thripence apece for each particular person soe registered." The persons marrying are themselves required, within one month, to report their marriage to him under penalty of three shillings for neglect--one-half to the Colony and the other half to the register "upon his complaint." The clerk must also submit annually to the general court at its March meeting a written report of all registrations made by him during the year. By this act, moreover, the publication of banns was devolved upon him.[421]

[Footnote 421: Plym. Col. Rec., XI, 189,190; cf. ibid., 52, 53. Records of births, deaths, and marriages are printed ibid., VIII. The record of marriages was sometimes included in the proceedings of the general court: ibid., I.]

The laws of the other colonies differed only in details from those of Plymouth. In Massachusetts the first order of the general court on the subject was passed in 1639. The intention is to be thrice published, not at divine service on the sabbath, it may be noted, but in town-meeting or at "publike lecture" in "both the townes where the parties, or either of them, do ordinarily reside." If no public lecture is held in the town, then fourteen days' notice may be given in writing on "some poast standing in publike viewe" and used solely for this purpose.[422] The "poast" is to be provided by the town under penalty of ten shillings for default.[423] Later it became customary for the town clerk or his deputy to publish the banns on Sunday, "after the blessing to the evening exercise was pronounced;" and so in 1696-97 we find the town-meeting of Charlestown ordering that "publishments should be made 'on Lecture days or any other public times, and not restrained to Sabbath Days only.'"[424] Sometimes on petition the legislature granted to individuals special permission to marry.[425] Originally the registration of births, deaths, and marriages devolved upon the town clerk; but it seems to have been neglected by him. For in 1642 the general court laid this duty upon the clerk of the writs in each town, under penalty for default, requiring him to make annual return of all names registered to the recorder of the county court.[426] A similar report to the same officer is to be submitted each year by all magistrates or persons appointed to solemnize marriages; and the "new married man" shall likewise, within one month, bring in to the clerk of the writs a certificate of his marriage.[427] Under the Province laws the duties of recorder were again performed by the clerk of the township; and under severe penalty persons might not be joined in marriage without presenting a proper certificate of publication and satisfactory evidence of parental consent.[428]

[Footnote 422: In the edition of the laws, 1660, notice is to be placed "upon some post of their Meeting-house door": WHITMORE, Col. Laws of Mass. (1660-72), 51, 52: cf. ibid. (1672-86), 101.]

[Footnote 423: Mass. Col. Rec., I, 275; WHITMORE, _Col. Laws of Mass._ (1660-72), 51, 52; ibid. (1672-86), 101.

The meeting-house on Sunday or lecture-day was a general clearing-house for news and gossip; and not the least inviting topics were supplied by the marriage notices. "There they read, as from an old newspaper, of an intention of marriage between persons known to everybody; and although the town clerk had stood up in the congregation and screamed it at the top of his voice, it was an endless subject of comment, especially if the woman had as publicly renounced the intention--as women sometimes did."--BLISS, Colonial Times on Buzzard's Bay, 77, 78.]

[Footnote 424: EDES, in Mem. Hist. Bost., II, 315, and n. 2.]

[Footnote 425: For instance, on May 22, 1651, such a petition from Mary Longe was allowed, provided "she be published according to law": Mass. Col. Rec., III, 232. Sept. 7, 1643, "Jacob Sheath & Margaret Webbe are permitted to joyne in marriage, though but twice published": ibid., II, 46. May 30, 1644, "without further publishment," Robert Parke "hath libertye to proceed in marriage with Alice Tompson": ibid., III, 3.]

[Footnote 426: Mass. Col. Rec., II, 15; IV, Part I, 290; cf. ibid., I, 275, 276; and WHITMORE, Col. Laws of Mass. (1660-72), 188; ibid. (1672-86), 130. But town clerks continued to act: Salem Town Rec., 148. The office of "Clark of the writts" seems to have been created in 1641, primarily to issue summons and attachments: Mass. Col. Rec., I, 344, 345. See also "Province Laws of New Hampshire," in Coll. of New Hamp. Hist. Soc., VIII, 31. Originally clerks of the writs were appointed by the general court; but later it was ordered that they should be licensed by the shire court or court of assistants. Those presented for license were first nominated in town-meeting: Mass. Col. Rec., II, 188; Dorchester Town Rec., 116; Salem Town Rec., 148, 195; Boston Town Rec. (1660-1701), 100, 103, 130, 197. Cf. HOWARD, Local Const. Hist., I, 90, 91, 331.]

[Footnote 427: WHITMORE, Col. Laws of Mass. (1660-72), 188; ibid. (1672-86), 130; Mass. Col. Rec., II, 59.]

[Footnote 428: See the acts of 1692 and 1696: Acts and Resolves, I, 61, 209, 210. By the former statute ministers and justices are required to make a quarterly report of marriages solemnized by them to the clerk of the sessions of the peace. The act of 1716, referred to in SEWALL'S Diary, provides that the town clerk shall send in to the same officer an annual transcript of marriages recorded by him. "The volume of such returns for Suffolk County has very recently (written 1882) been transferred to the custody of the city registrar of Boston."--SEWALL'S Diary, in 5 Mass. Hist. Coll., VII, 112, and the note by the editors.]

Previous to 1692, of course, the legal history of New Hampshire is in the main identical with that of Massachusetts.[429] But in the pioneer stage the township was sufficient unto itself. "Dover and Portsmouth, for nearly twenty years, had no central authority.[430] They had no ministry in any form, nor any magistrates, except such as might be created by any mining hamlet in an unorganized territory, or afterward as the result of forming themselves into societies. This, however, did not prevent people either from marrying or dying. The result was that marriage in New Hampshire has borne from the outset not only the character of a civil contract, but the impress of our township system."[431] After the establishment of the royal province the contract might be solemnized by "virtue either of publishment, or of a licence from the Governor. The granting of these licences was accounted a part of the royal prerogative;"[432] and it was complained of as leading to abuse.[433]

[Footnote 429: Intentions of marriage were to be published three times, or else on fourteen days' written notice: "General Lawes and Liberties of New Hamp.," Coll. New Hamp. Hist. Soc., VIII, 23. See also the Cutt Code, Provincial Papers, I, 396, 397.]

[Footnote 430: DOYLE, English Colonies, II, 201 ff.; LODGE, Short Hist., 397 ff.; HILDRETH, Hist. of U. S., I, 200; BANCROFT, Hist. of U. S., I, 217, 218, 262.]

[Footnote 431: SHIRLEY, "Early Jurisprudence of New Hampshire," Procds. New Hamp. Hist. Soc. (1876-84), 309.]

[Footnote 432: BELKNAP, Hist. of New Hampshire, III, 211.]

[Footnote 433: Provincial Papers, IV, 832 (1737).]

The statutes of Connecticut contain a curious provision, which will receive further notice hereafter. Distinction is made between the "contract" and the "covenant." Eight days' public notice of the proposed engagement must be given; and after the contract the betrothed pair must "forbeare" for a second period of eight days before joining in the covenant.[434] By the code of 1673 persons are not to be joined in wedlock "before the intention ... hath been sufficiently published at some publick Lecture or Town meeting in the Towns where the parties or either of them do ordinarily reside, or be set up in Writing ... upon some post of their Meeting House Door in publick view, there to stand so as it may be read eight days before such marriage."[435] In general, the marriage laws of both Connecticut[436] and New Haven[437] on the topic considered are plainly modeled upon those of Massachusetts, and so need not here receive further analysis.

[Footnote 434: Conn. Col. Rec., I, 47, 48 (1640), 540; TRUMBULL, True Blue Laws, 106. Compare The Code of 1650 (Hartford, 1836), 67, 68.]

[Footnote 435: The Book of General Laws of 1673 (Hartford, 1865), 46. The Acts and Laws (New London, 1715), 75, require three publications or eight days' posting; while by the Acts and Laws (New Haven, 1769), 144-47, intentions are to be announced only eight days before the celebration "in some public Meeting or Congregation on the Lord's Day, or on some public Fast, Thanksgiving, or Lecture Day, in the Town, Parish, or Society where the Parties or either of them do ordinarily reside," or else posted eight days, as before.]

[Footnote 436: For the law of registration see Conn. Col. Rec., I, 48, 105, 106, 551; TRUMBULL, op. cit., 123.]

[Footnote 437: New Haven Col. Rec., II, 599, 600, 607; TRUMBULL, op. cit., 241, 242, 255; ATWATER, _Hist. of New Haven Colony_, 363.]

Some interesting details may be gleaned from the matrimonial legislation of Rhode Island. The code of 1647 requires the publication of banns at two town-meetings, confirmation before the head officer, and registration in the town clerk's book; otherwise the marriage is void. It is further enacted that the "man that goes contrarie to this present Ordinance ... shall forfeit five pounds to the parents of the Maid, and be bound to his good behaviour; and all the accessories shall forfeit five pounds a man, halfe ... to the grieved parents and the other halfe to the Town."[438] Thus was established at an early day, says Arnold, a system of registration "such as recent legislation has attempted to revive."[439] In 1656 it was permitted either to publish marriages at town-meeting, or "on a traininge day at y^e head of y^e Companie,"[440] or by a "Writinge under y^e Magistrates hands fixed upon some noted place in y^e Towne."[441] If "the banns were forbidden, the case was to be heard by two magistrates; should they allow it, the parties might marry; but if not, the general Court of trials were to decide."[442] A later version of the law of 1647, of uncertain date, is somewhat more detailed. The "man y^t hath A respect to a maid & doth desi[re] to Obtaine her in Marriage ... shall first acquaint her Parents thereof & upon their consenting thereto he shall have Baines of matrimony set up in a Publick Place in y^e Town or be Published two sever^{ll} times In A Public Assembly In the Town & then remaine from After y^e first Publication Tenn Days." Afterward, "before one of the Gener^{ll} officers" the celebration may take place according to "y^e usuwal Custome of this place & then a Certificate Shall be given by y^e Officer y^t Ioynes them togeather in Marriage to y^e party So married who shall Carry it to the Clarke of y^e Town where y^e Marriage was Solemnized & have it Placed upon Record." For violation of the act the same penalties are imposed on the principals and accessories as in 1647; and the children "y^t any shall have w^{th}out this due & orderly Course of Law ... shall be looked at not to be Legitimate."[443] It appears that the execution of the laws was sadly neglected, and so by an act of 1698 all marriages thus far solemnized, but not duly registered, are declared valid. Persons married in future are ordered within ten days to make return to the town clerk; while the latter is required to submit annually to the head officer of the town or to the chief justice of the peace a report of all births, marriages, and deaths by him recorded.[444] Three years later a more stringent statute appears. Persons from another colony or township must present to the officer performing the ceremony a magistrate's certificate of proper publication and qualification.[445] "Fine and suspension from office were the penalties for any violation of this act by a magistrate, and fine, imprisonment, or whipping, is the punishments for the principals who disregard it."[446] After various changes[447] the law of the provincial era reached its full development in the code of 1767. A dual system of banns and lay publication is provided. If application be made to a "settled and ordained" minister of any denomination, he shall "openly and by public speaking" proclaim the banns on three several Sundays, holidays, or days of public worship "in the Meeting in the Town, where the Parties respectively belong." If lay publication be preferred, the assistant, warden, or justice, under his hand and seal, is required to post a notice in some public place in each of the towns where the parties dwell fifteen days before the wedding.[448] A method of "under-writing" in case of objection is prescribed. With leave of any assistant, justice, or warden, the person opposing the marriage is to make the objection "in writing under his or her Hand, therein assigning the Impediment, and affix the same under the Publication;" but in case of oral banns the written objection, in the presence of two witnesses, is to be delivered to the minister or elder who proclaimed the banns. The person forbidding the marriage must enter into recognizance with two good sureties to appear at the next court of general sessions of the peace and there "make good and prove" his allegations, or, in default, pay to the persons to be wedded "all such Damages as they shall sustain by Means of staying their Marriage." A certificate of publication must be produced; two credible witnesses to the ceremony are required; the person conducting the celebration must give a certificate[449] thereof to the newly wedded pair; and he is entitled to a fee of three shillings. Only fines are imposed for violation of the act by the solemnizer or by the parties. Neither by this law nor apparently by any statute subsequent to the act of 1663 is a contract declared void for non-observance of legal forms.[450]

[Footnote 438: R. I. Col. Rec., I, 187; STAPLES, _First Proceedings_, 47, 48.]

[Footnote 439: ARNOLD, Hist. of Rhode Island, I, 208.]

[Footnote 440: Publication on training day seems to have been customary elsewhere in New England, doubtless that day being one of the "public times" referred to in the Massachusetts laws.]

[Footnote 441: This practice may be illustrated by the following anecdote concerning the marriage of Ruth Wilkinson and William Hopkins at Providence, related by MR. C. C. BEAMAN in Hist. Coll. Essex Inst., II, 116: "The lovers could not muster courage enough to speak to the 'awful Justice,' for Mr. Wilkinson (Ruth's father) held that office so dignified in former days. In the house or office it was the custom to post up 'Intentions of Marriage.' The timid lovers, who had often looked with an envious or emulous eye upon such important steps preliminary to a 'consumation devoutly to be wished,' wrote a notice of their 'intentions,' and placing it unobserved upon the table of the 'Justice,' watched to see how it would be regarded. 'Squire Wilkinson, as they saw by a peep through the door, took up the paper, read it, and deliberately posted it up in the proper location. There were some blushes on the cheeks of Ruth that day, probably, but the desired approbation thus ingeniously obtained soon led on to marriage."]

[Footnote 442: ARNOLD, Hist. of R. I., I, 260; _R. I. Col. Rec._, I, 330.]

[Footnote 443: RIDER'S Laws and Acts (1705), 12.]

[Footnote 444: R. I. Col. Rec., III, 362; also in RIDER'S Laws and Acts (1705), 44.]

[Footnote 445: R. I. Col. Rec., III, 436; cf. ibid., IV, 395, 396; RIDER, op. cit., 50.]

[Footnote 446: ARNOLD, Hist. of R. I., II, 3; R. I. Col. Rec., III, 436, 437. By this act fourteen days' notice is required of those living in the jurisdiction.]

[Footnote 447: Compare RIDER'S Charter and Laws (1719), 12, 13, 47, 48; Acts and Laws (1745), 30, 31, 176, 177 (1733), 100 (registration act of 1727); and RIDER'S _Supp. Pages to the Digest of 1730_, 258, 259 (act of 1733).]

[Footnote 448: The prescribed notice is in the following form:

"Know all Men by these Presents, that A. B. of ---- and C. D. of ---- have declared unto me their Intention of Marriage: I do therefore hereby make public the said Intention. If any Person knows any just Cause or Impediment why these Two Persons shall not be joined together in Marriage, they may declare the same as the Law directs. Given under my Hand and Seal at ---- this ---- Day of ---- Anno Domini ----."--Acts and Laws (Newport 1767,), 172, 173.]

[Footnote 449: The marriage certificate is in the following form:

"I Hereby certify, That A. B. of ---- Son of ---- and C. D. of ---- Daughter of ---- were lawfully joined together in Marriage on the ---- Day of ---- Anno Domini ---- by me the Subscriber."]

[Footnote 450: Acts and Laws (Newport, 1767), 172-75.]

In conclusion it may be noted that generally throughout New England neglect of the prescribed forms did not invalidate marriage, though the offender against the law might be punished.[451] It is historically probable, where words of nullity were not contained in the statute, that the irregular contract by simple present agreement, without intervention of a minister or magistrate, was valid. But this is a disputed point which will hereafter be considered in connection with the history of common-law marriage in the United States.[452]

[Footnote 451: See the case of Usher v. Troop (Throop), 1724-29, in MSS. Records of the Superior Court of Judicature (Mass.), 1725-30, folio 236. In 1724 John Usher, of Bristol, a minister of the Church of England, convicted in the inferior court of common pleas of marrying a couple without certificate of the town clerk, was fined 50 pounds and "forever thereafter disabled to Joyn Persons in Marriage." On appeal it was found: "If the Constitutions and Canons Ecclesiastical of the Church of England are sufficient to support the Appellant here, in Joyning Persons together in Marriage without such certificate.... Then the Jury say the Applt is not Guilty; otherwise they say he is Guilty." The appeal was finally dismissed (1729) on default of the "appellee."]

[Footnote 452: See chap. xviii, i.]

III. COURTSHIP, PROPOSALS, AND GOVERNMENT OF SINGLE PERSONS

It may be an exaggeration to say that the Mosaic code was the corpus juris of the Puritan.[453] But it is certain that the early private law of New England was profoundly influenced by it. The family in many respects took on a patriarchal character. The sway of the house-father, though in the main just, became in theory despotic. Even the conception of marriage as a civil contract gained support from the Jewish law.[454] Our ancestors loved to cite the book of Ruth and other scriptural texts in its favor; and their view of the proper relations of husband and wife, those of parent and child, or those of man and woman before marriage, was derived directly from the biblical ordinances.[455]

[Footnote 453: "Il y avait même un tel mélange de la religion à toutes les circonstances de la vie civile, que la législation, en certaines matières, en référait à la Bible qui était, pour ainsi dire, le corpus juris des émigrants dans la Nouvelle-Angleterre. La famille, où ils avaient puisé le sentiment religieux, était forte parce qu'elle était unie; et le père, qui ressemblait en quelque sorte au patriarche d'autrefois, avait une autorité incontestée qu'on aimait, car elle était composée de bienveillance et de justice."--CARLIER, Le mariage aux États-Unis, 7, 8.]

[Footnote 454: "Between these two extreme views--that of marriage as merely a civil contract and marriage as a sacrament--stands that of the Jewish law. The act of concluding marriage is there certainly also considered as a contract, which requires the consent of both parties and the performance of certain formalities, similar to other contracts, and which, under certain circumstances, can be dissolved. But, inasmuch as marriage concerns a relation which is based on morality and implies the most sacred duties, it is more than a mere civil contract."--MIELZINER, The Jewish Law of Marriage and Divorce, 25, 26. But "the presence of a rabbi or minister is, according to the Talmudic Law, not required at the betrothal or the nuptials. The prescribed benedictions were pronounced either by the bridegroom or by any of the friends present. Such was also the Jewish custom during the Middle Ages."--Ibid., 84. Cf. AMRAM, The Jewish Law of Divorce, 39.]

[Footnote 455: See SHIRLEY'S comments on the Cutt Code, "Early Jurisprudence of New Hampshire," Procds. New Hamp. Hist. Soc. (1876-84), 273 ff.]

Thus "old bachelors," though rare in early New England, were looked upon with disfavor. They were regarded almost as "suspected criminals."[456] Connecticut "in 1636 would not allow any young unmarried man to keep house."[457] A special order of the town of Windsor was necessary, in 1682, to permit "Isaac Sheldon and Samuel Rockwell to keep house together, 'so they carry themselves soberly and do not entertain idle persons to the evil expense of time by day or night.'"[458] Hartford taxed "lone-men" twenty shillings a week "for the selfish luxury of solitary living."[459] Even in the eighteenth century a general statute of Connecticut, under the same penalty of twenty shillings a week, forbade any "house-keeper" or "master of a family," without "allowance of the selectmen," to give "entertainment or habitation" to a single person; and "such Bourders, Sojourners, and Young persons" are required to "attend to the Worship of God" in the families where they live and "to be subject to the domestick Government of the same," or else forfeit five shillings for every breach of the law.[460] In Rhode Island in one instance "single persons of three months' residence paid five shillings, while the 'rate of faculties and personal abilities' was left at the discretion of the assessors."[461] According to a New Haven law, in order to "suppress inconvenience" and disorders inconsistent with the "mind of God in the fifth commandment," single persons, not in service or dwelling with their relatives, are forbidden to diet or lodge alone; but they are required to live in "licensed" families; and the "governors" of such families are ordered to "observe the course, carriage, and behaviour, of every such single person, whether he or she walk diligently in a constant lawful imployment, attending both family duties and the publick worship of God, and keeping good order day and night or otherwise."[462]

[Footnote 456: EARLE, Customs and Fashions, 36.]

[Footnote 457: WEEDEN, Ecc. and Soc. Hist. of N. E., I, 230; Conn. Col. Rec., I, 8.]

[Footnote 458: WEEDEN, loc. cit.; STILES, Windsor, 54.]

[Footnote 459: EARLE, Customs and Fashions, 37.]

[Footnote 460: Acts and Laws (1715), 60; see also _Conn. Col. Rec._, I, 538; TRUMBULL, Blue Laws, 104.]

[Footnote 461: In 1682: WEEDEN, op. cit., I, 272; MUNRO, Bristol, R. I., 115.]

[Footnote 462: New Haven Col. Rec., II, 608; TRUMBULL, op. cit., 258.]

Similar measures were adopted by the other colonies. The law of Plymouth provides that "wheras great Inconvenience hath arisen by single persons in this Collonie being for themselues and not betakeing themselues to live in well Gou^rned famillies. It is enacted by the Court that henceforth noe single person be suffered to liue by himselfe or in any family but such as the Celectmen of the Towne shall approue of; and if any person or persons shall refuse or neglect to attend such order as shalbe giuen them by the Celectmen; that such person or persons shalbe sumoned to the Court to be proceeded with as the matter shall require."[463] "Whereas," runs a statute of Massachusetts, "there is a loose and sinful custom of going or riding from town to town, ... oftimes men and women together, upon pretence of going to lectures, but it appears ... merely to drink and revel in ordinaries and taverns, which is in itself scandalous, and it is to be feared a notable means to debauch our youth and hazard the chastity of those that are drawn fourth thereunto: for prevention whereof," it is ordered "that all single persons who merely for their pleasure take such journeys ... shall be reputed and accounted riotous and unsober persons, and of ill behavior ... and shall be committed to prison for ten days, or pay a fine of forty shillings for each offence," unless they can "give bonds and sufficient sureties for good behavior in twenty pounds."[464] Earlier it was decreed that the "Select men of every Town, in the several precincts, and quarters where they dwel, shal have a vigilant eye over their brethren and neighbours, to see, first that none of them shall suffer so much barbarism in any of their families, as not to endeavour to teach, by themselves or others, their children & apprentices, so much learning, as may enable them perfectly to read the english tongue & knowledg of the Capital laws." Once a week children and apprentices are to be catechised "in the grounds and principles of Religion," or at least taught "some short orthodox catachism without book;" and they are to be bred and brought up "in some honest Lawfull calling ... profitable for themselves and the Common-wealth," if their parents or masters "will not, or cannot train them up in learning to fitt them for higher imployments." If parents and masters neglect their duty, "whereby children & servants become rude, stubborn & unruly, the sayd Select men with the help of two Magistrates or the next County Court for that Shire, shall take such children or apprentices from them," and until they come of age place them with persons who will more strictly look after their government as the law directs.[465] It was further enacted that every town shall order and dispose to service or otherwise all "single persons and inmates" within its borders, anyone feeling aggrieved thereby "to have Liberty to appeale to the next County Court."[466]

[Footnote 463: Plym. Col. Rec., XI, 223.]

[Footnote 464: WHITMORE, Colonial Laws of Mass. (1672-86), 236, 237.]

[Footnote 465: Ibid. (1660-72), 136.]

[Footnote 466: Ibid., 196; ibid. (1672-86), 148; _Mass. Col. Rec._, I, 186.]

These laws were not wholly a dead letter, as shown by the judicial records. Thus on April 2, 1672, "Thomas Henshaw and Thomas Hall, singlemen, being convicted of living from under family government ... , are ordered forthwith to submit themselves" to such government "and to appear at the next court and bring with them certificate thereof."[467] Nevertheless complaint is made that the town officers are negligent. In 1668 the legislature directs the clerk of each shire court to send "to the Constables of the Towns" within the shire an order which they are "enjoyned faithfully to execute." In the preamble it is recited that the neglect of the laws, "as by sad experience from Court to Court abundantly appears, doth occasion much sin and prophaness to increase among us, to the dishonour of God, and the ensnaring of many Children and Servants, by the dissolute lives and practices of such as do live from under Family Government, and is a great discouragement to those Family Governours, who conscientiously endeavour to bring up their Youth in all Christian nurture, as the Laws of God and this Common wealth doth require: These are therefore ... to require you to acquaint the Select men of your Town, that the Court doth expect and will require, that the said Laws be accordingly attended... : and you are also required to take a list of the names of those young persons ... who do live from under Family Government, viz., do not serve their Parents or Masters, as Children, Apprentices, hired Servants, or Journey men ought to do, and usually did in our Native Country, being subject to their commands and discipline."[468]

[Footnote 467: MSS. Records of the County Court for Middlesex, III, 21.]

[Footnote 468: WHITMORE, op. cit. (1660-72), 260; also ibid. (1672-86), 149. There is a copy of one of the orders sent to the constables, differing slightly in capitalization and punctuation from the above, in the MSS. Files of the County Court for Middlesex, Dec., 1668.]

The manuscript files of Middlesex show that lists[469] of delinquent single persons were taken by the constables as required; and that some of them were summoned to appear before the court. Following is the "answer" of Robert Williams, whose name is in the list given in the margin:

"I do desire to liue under family gouernment and haue so desired euer sinc my time was out with my master that I liued with and all the time sinc commited myself into mens housis of good report as neer as I could and do desir to walk inofenciue to all men and furder I do hop that the men which I do work with will say as I do if the honered court will desir it indeed I am not a saruant yet do submit myself to family ordor I [will] do as a saruant what els the honered court would haue me do mor I hope I shall be willing to obay the finil power."[470]

[Footnote 469: Here is the list from Marlboro:

"Samuell Goodenow, from under family Gouernment, Liuing upon his oune ground.

"Isaius Tailer and Will Tayler, Renters....

"John Howard ... out of his time ... and Entending as fast as he can to settell himselfe: so to liue under family gouernment.

"Rober Williams...."--_MSS. Files of the County Court for Middlesex_, Dec. 1668.]

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

"To the Hon^rd Court....

"Whereas Aaron Jaquese, a single prson liuing in our towne, who hath for sometime liued from vnder family gouernment contrary to Court Order, being su[=m]uned by y^e Constable to appear before this Honored Court: These are to enforme ... that ... Aaron Jaquese hath bin much complained of by seuerall of our inhabitants, for negligence in his calling, hauing obserued him much giuen to idleness; also shifting from house to house, & vnfaithfull to his Couenants & promises with such prsons, with whom he has engaged service, vpon which Complaints the selectmen haue endeauered acording to law, to place him foorth in service, but ca[=n]ot effect it. Our Humble request to this Hon'd Court is, that they would please to despose of ... Aaron to service, or otherwise to order something concering the same as may be effectuall to render him to a more regular Course of life, as y^e wisdome of this Court shall judg best. So shall we pray &c.

Your humble seruants."

The MSS. Files of the County Court for Middlesex, April, 1669, also contain a certificate of the selectmen of Charlestown to the effect that John Swain had given satisfaction for orderly behavior.]

In a society where marriages were formed very early, girls often wedding at sixteen or less, and where widows were wooed almost at the bier of the dear departed,[471] it is perhaps not surprising if "old maids" were ridiculed and sometimes despised. A woman became an "antient maid" at twenty-five.[472] In an often quoted passage of his Life and Errors, John Dunton thus praises a woman who remained single, not from "necessity," but from "choice," and who knew that time is a "dressing-room for Eternity, and therefore reserves most of her hours for better uses than those of the Comb, the Toilet, and the Glass":

"It is true an old (or super-annuated) maid in Boston is thought such a curse as nothing can exceed it (and look'd upon as a dismal spectacle); yet she, by her good-nature, gravity, and strict virtue, convinces all (so much as the fleering Beaus) that it is not her necessity, but her choice, that keeps her a Virgin. She is now about thirty years (the age which they call a Thornback), yet she never disguises herself, and talks as little as she thinks of Love. She never reads any Plays or Romances, goes to no Balls, or Dancing-match, as they do who go (to such Fairs) in order to meet with Chapmen. Her looks, her speech, her whole behaviour, are so very chaste, that but once (at Governor's Island, where we went to be merry at roasting a hog) going to kiss her, I thought she would have blushed to death."[473]

[Footnote 471: Thus Judge Sewall went home with Widow Denison from her husband's funeral and "prayed God to keep house" with her: Diary, in 5 Mass. Hist. Coll., VII, 179 (March 26, 1718). Cf. also EARLE, Customs and Fashions, 45, 46.

"The colonists married early and they married often. Widowers and widows hastened to join their fortunes and sorrows. The father and mother of Governor Winslow had been widow and widower seven and twelve weeks respectively, when they joined their families and themselves in mutual benefit, if not in mutual love. At a later day the impatient governor of New Hampshire married a lady but ten days widowed."--EARLE, op. cit., 86. On early marriages see WEEDEN, Ecc. and Soc. Hist. of N. E., II, 541, 739.]

[Footnote 472: EARLE, op. cit., 38.]

[Footnote 473: DUNTON'S Life and Errors (Westminster, 1818), I, 102, referring to Boston in 1686. In DUNTON'S Letters from New-England (ed. by WHITMORE for the Prince Society, Boston, 1867), 99, where this passage appears in a modified form, the age of a "thornback" is reduced to twenty-six years. The paragraph is also quoted by WEEDEN, op. cit., I, 299, 300; and EARLE, op. cit., 38, 39.]

But bachelors and "thornbacks" were not the only people who caused the lawmaker anxiety. He kept a sharp eye on married persons living away from their mates. An act of the Massachusetts general court, in 1647, after reciting that diverse married persons are living in the jurisdiction, whose wives or husbands are in England or elsewhere, and who are guilty of making love to women, of attempting marriage or even attaining it, or are under "suspition of uncleannes"--the vice which seems to have sorely vexed the good people of those days--and all of whom are a great dishonor to God and a reproof to religion, commonwealth, and church--orders that every such person shall be incontinently sent back "by y^e first oportunity of shiping," unless present on transient business or to "make way" for the family to come over.[474] Such complaints were by no means groundless and the courts were often called upon to execute the law. Under the circumstances bigamy was easily committed, though not always permanently concealed. On December 3, 1639, the pretended marriage of James Luxford was declared void; "all that hee hath" was given to his victim; and he himself was fined, set in the stocks, and ordered "sent away to England by the first opportunity."[475] In 1644 the "marriage of John Richardson to Elizabeth Frier was annulled upon proof that he had a former wife living in England."[476] Henry Jackson--whose case seems to justify the act of 1647--was presented in 1672-73 "for lying, in saying he was single and attempting marriage with several," though since confessing that he has a wife beyond the sea; "for living from under family government; and for carrying a fire brand at night near a hay stack;" on all of which counts, we are prepared to hear, he got twenty stripes, had to pay costs, and was ordered away to "England by the next ship."[477]

[Footnote 474: Mass. Col. Rec., II, 211, 212; WHITMORE, _Col. Laws of Mass._ (1660-72), 172; ibid. (1672-86), 216.]

[Footnote 475: Mass. Col. Rec., I, 283.]

[Footnote 476: Ibid., II, 86.]

[Footnote 477: MSS. Records of the County Court of Suffolk, 113.]

More numerous are the cases of "living apart." For example in 1637 the general court decreed that Isaac Davies should be sent home to his wife in England.[478] Three years later "Willi Wake" in like manner was advised to seek his consort.[479] Edward Iron in 1651 "upon promise to take some effectual course to send for his wife now in England" was "granted liberty to abide in the country until the next return of ships." Should his attempt fail, then he was "ordered to depart out of this jurisdiction by the next opportunity."[480] For similar absence from his spouse James Underwood in 1654 was fined at Salem.[481] In 1663 for the same offense Christopher Blake was presented by the grand jury of Suffolk, although in his petition he avers that for three years he had "been desirous of getting his wife across but she refused to come;" and that he had never "presented himself as a single man, but always openly manifested the true state of his condition." Accordingly the general court ordered the prosecution "stayed for a year."[482] In 1671 Paul Hall, presented in the same county, "appeared and declared he was informed his wife was dead." The court, being skeptical, commanded him to "repair to the last place of her abode or bring in a certificate of her death."[483] Delinquent wives were looked after with equal vigilance. In 1668 the constable of Boston is ordered to summon "before the county court two women and one man for living apart from their spouses contrary to law."[484] A presentment of Sarah Pickering failed in 1674 because she produced evidence that her husband had renounced her.[485] Even when both partners were in the jurisdiction the law was not less harshly administered. On June 17, 1672, for "disorderly living apart," Michael Smith and wife, "inhabitants of Charlestoun" were "admonished and ordered to pay costs."[486] The case of "Abr. Hagborne" in 1663 is more remarkable. Although he had come to the colony twenty-two years before; had lived contentedly with his wife for fourteen or fifteen years until she "did depart" for England; had sent for her to return home and provided for her transportation, "whereby the innocence of Living Apart is on your peticoners part;" and "had no idea the law against living apart would apply to the known settled inhabitants, brethren and freemen whose wives unnaturally desert them;" yet the county court "was pleased to require him to depart the Countrie & to repayre vnto his wife." So he "humbly petitions" the general court that he may not be compelled to return to England and that he may "not be put vpon [religious] temptacoñs or aboue his strength or any kind of iniun[~cc]on [injunction] of going to Serue other Gods;" but may be "allowed to continue his Abode here ... vnder the Shadow of that happie Gouernment in Co[=m]onwealth and Churches ... those few days of his pilgrimage that remayne." A gracious answer, it is perhaps needless to add, was the meet reward of so just and so skilful a prayer.[487]

[Footnote 478: Mass. Col. Rec., I, 198.]

[Footnote 479: Ibid., 311.]

[Footnote 480: MSS. Records of the County Court of Middlesex, I, 18. Apparently Edward's attempts were a failure; for on Oct. 4, 1653, he was "granted liberty to use what more effectual means he may or can to send for his wife from England": ibid., I, 32.]

[Footnote 481: Mass. Col. Rec., III, 349, 350. But on petition, in order to present further testimony, the general court granted a respite.]

[Footnote 482: MSS. Early Court Files of Suffolk County, No. 531. This case is also partially reported in Mass. Col. Rec., IV, Part II, 84; and quoted in SHIRLEY, "Early Jurisprudence of New Hampshire," Procds. New. Hamp. Hist. Soc. (1876-84), 310.]

[Footnote 483: MSS. Records of the County Court of Suffolk, 9.]

[Footnote 484: MSS. Early Court Files of Suffolk, No. 867.]

[Footnote 485: MSS. Records of the County Court of Suffolk, 279.]

[Footnote 486: MSS. Records of the County Court of Middlesex, III, 63.]

[Footnote 487: MSS. Early Court Files of Suffolk, No. 527. For similar legislation see New Haven Col. Rec., II, 600; TRUMBULL, Blue Laws, 243.]

In like spirit single women and wives in the absence of their husbands were forbidden to "lodge any inmate or sojourner," except with the approval of the selectmen or other magistrates.[488] Of course, these were pioneer days. The peace of the settlements was probably disturbed by loose and riotous adventurers, outcasts from the society of the Old World. Doubtless these measures, aside from religious motives, were in some degree useful police ordinances; as were also those prohibiting the husband from beating his wife, and the wife from striking her spouse.[489]

[Footnote 488: Mass. Col. Rec., V, 4; SHIRLEY, Early Jurisprudence of New Hamp., 310, 311. The harboring of "strangers"--and "stranger" might be a father, daughter, or son from a neighboring town--gave the good people of the colonies a great deal of trouble. See the illustrations in WEEDEN, Ecc. and Soc. Hist. of N. E., I, 272; and HOWARD, Local Const. Hist., I, 87, 88, where the town records are cited.]

[Footnote 489: WHITMORE, Col. Laws of Mass. (1660-72), 51, 171; ibid. (1672-86), 101. Cf. Mass. Col. Rec., III, 212 (1650). In 1638 John Emerson, of Scituate, was tried before the general court for abusing his wife: ibid., I, 232; the same year for beating his wife, Henry Seawall was sent for examination before the court at Ipswich: ibid., 233; and in 1663 Ensigne John Williams, of Barnstable, was fined by the Plymouth court for slandering his wife: GOODWIN, Pilgrim Republic, 596.

It would seem that the husband, too, really needed some legal protection. The early court records disclose the sad fact that husband-beating was painfully frequent in colonial times. Thus in Plymouth jurisdiction Joan, the wife of Obadiah Miller of Taunton, was presented "for beating and reviling her husband, and egging her children to healp her, bidding them knock him in the head, and wishing his victials might [~c]oake him."--Plym. Col. Rec., III, 75.

The bad practice was not unknown among the "good wives" of Salem. For example, in 1637, at the fifth quarter court, it was decreed: "Whereas Dorothy the wyfe of John Talbie hath not only broak that peace & loue, w^{ch} ought to haue beene both betwixt them, but also hath violentlie broke the king's peace, by frequent Laying hands vpon hir husband to the danger of his Life, & Condemned Authority, not co[=m]ing before them vpon command, It is therefore ordered that for hir misdemeaner passed & for p^rvention of future evills that are feared wilbe co[=m]itted by hir if shee be Lefte att hir Libertie. That she shall be bound & chained to some post where shee shall be restrained of hir libertye to goe abroad or comminge to hir husband till shee manefest some change of hir course.... Only it is pmitted that shee shall come to the place of gods worshipp, to enjoy his ordenances." Later "Dorothy" was punished again for a similar offense: Hist. Coll. Essex Inst., VII, 129, 187. Cf. HOWARD, Local Const. Hist., I, 326, 327. For further illustrations see WEEDEN, Ecc. and Soc. Hist, of N. E., I, 294.]

But the colonists went farther and prescribed the death penalty for disobedience to parents, following the precepts of the Mosaic law.[490] Furthermore, they attempted to regulate courtship by statute, in a way which, however wholesome, would scarcely be relished by the young men and maidens of our generation. Thus the general court of Plymouth prohibits "any motion of marriage to any man's daughter or mayde servant" without having "first obtayned leaue" of the parents or master under penalty of fine and corporal punishment in the discretion of the bench. But appeal is allowed to the magistrate, when the master "through any sinister end or couetous desire," witholds his consent.[491] The courts were not wholly without business growing out of this legislation, as appears from illustrations collected by Mr. Goodwin. "In 1652 Jonathan Coventry was indicted for 'making a motion of marriage' to Katherine Bradbury, servant to Mr. Bourne, of Marshfield, without the latter's consent.[492] Coventry left the Colony before arrest.... In 1648 Thomas Dunham was ordered to abstain from visiting or sending to Martha Knott, of Sandwich, from October 4 till the first Tuesday of December, that the Court may better learn of his pretended contract, unless the Governor, on the clearing of things, give him leave. A romantic case was that of Governor Thomas Prence against Arthur Howland, Jr., nephew of the Pilgrim.[493] The tolerant course of the elder Arthur Howland toward the Quakers had earned Prence's hearty ill-will; and when, in 1660, he found that Arthur, Jr., had wooed his daughter Elizabeth, he had the swain before the General Court, where he was fined £5 for making love without her father's permission. The couple remained constant, for in 1667 the irate Governor once more brought up young Arthur, who was again fined £5 because he had 'disorderly and unrighteously endeavored to obtain the affections of Mistress Elizabeth Prence,' and was put under bond of £50 to 'refrain and desist.' But Prence, like Canute, was unable to control the forces of Nature. This action was in July; but before the next spring the imperious Governor seemed to have been forced to capitulate, for Arthur and Elizabeth were united."[494] On the other hand, the right of a lover to appeal to the magistrate, in case his "motion" were hindered through "sinister end or couetous desire," was occasionally of practical value. In 1646, for instance, Richard Taylor complained to the general court of Plymouth that he was prevented from marrying Ruth Wheildon by her father Gabriel; but when before the court Gabriel yielded and promised no longer to oppose the marriage.[495] The records show that parents might be held accountable for "miscarriages" resulting from unreasonable opposition.[496]

[Footnote 490: WHITMORE, Col. Laws of Mass. (1660-72), 129; New Haven Col. Rec., II, 578, and TRUMBULL, Blue Laws, 201; Conn. Col. Rec., I, 515, and TRUMBULL, op. cit., 69; _New Hamp. Hist. Coll._, VIII, 12; SHIRLEY, _Early Jurisprudence of N. H._, 311; Andros Tracts, III, 13. Cf. a similar law for early New York: Duke of Yorke's Laws, 15.]

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

[Footnote 492: For the case see ibid., III, 5: "Wee psent Jonathan Couentry ... for makeing mocion of marriage vnto Katheren Bradberey, servant vnto M^r Burne, of the same town, without her master's consent, contrary to Court orders."]

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

[Footnote 494: GOODWIN, Pilgrim Republic, 598; cf. PALFREY, Hist. of New England, II, 21.]

[Footnote 495: GOODWIN, op. cit., 597.]

[Footnote 496: Dec. 16, 1679. At a court held at Charlestown, George Parminter and his wife convicted of fornication before marriage, court respited their sentence till next court, and ordered that their parents be summoned then to appear to give answer why they denied them the consummation of their marriage for so many months after they were in order thereto: MSS. Records of the County Court of Middlesex, III, 316.]

To the close of the colonial era a law of Connecticut provided that "if any Man shall directly or indirectly endeavour to draw away the affections of any Maid ... , on pretence of Marriage, before he hath obtained Liberty and Allowance" from her parent, governor, or guardian, should there be any, "he shall forfeit the sum of Five Pounds to the Party grieved; double that amount for the second offence; and for a third transgression suffer imprisonment, besides paying the costs of prosecution."[497]

[Footnote 497: Acts and Laws of Conn. (New Haven, 1769), 144. Substantially the same provision appears in the Code of 1643: TRUMBULL, Blue Laws, 106, 107; Conn. Col. Rec., I, 92; in The Book of General Laws, 1673 (Hartford, 1865), 46; and in Acts and Laws (New London, 1715), 75.]

An elaborate statute of New Haven, for the regulation of proposals, provides "that whosoever within this jurisdiction shall attempt, or endeavor to inveagle, or draw the affections of any maide, or maide-servant, whether daughter, kinswoman, or in other relation, for himself, or for any other person, without the consent of father, master, governor, or such other, who hath the present interest, or charge, or (in absence of such) of the nearest magistrate, whether it be by speech, writing, message, company-keeping, unnecessary familiarity, disorderly night meetings, sinful dalliance, gifts, or any other way, directly or indirectly, every such person (besides all damages which the parent, governor, or person intrusted or interested, may sustain by such unlawful proceedings) shall pay to the plantation forty shillings for the first offence; and for the second offence towards the same party four pounds; and for the third offence he shal be further fined, imprisoned, or corporally punished, as the plantation court, or court of magistrates considering all circumstances, shal determine."[498]

[Footnote 498: New Haven Col. Rec., II, 600; TRUMBULL, op. cit., 242. Cf. ATWATER, Hist. of Col. of New Haven, 362.]

The foregoing act was probably suggested by the Massachusetts law of 1647, which is likewise here presented. It is declared that, "whereas God hath committed the care and power into the hands of parents for the disposing their Children in Marriage, so that it is against rule, to seek to draw away the affections of young maidens under pretence of purpose of marriage, before their parents have given way and allowance in that respect; and whereas it is common practise in divers places for young men irregularly and disorderly to watch all advantages for their evil purposes, to insinuate into the affections of young Maidens by coming to them in places and seasons unknown to their parents for such ends, whereby much evil hath grown amongst us, to the dishonour of God and damage of parties; for prevention whereof for time to come. It is further Ordered, that whatsoever person from henceforth shall endeavour, directly or indirectly, to draw away the affection of any mayd in this jurisdiction, under pretence of marriage, before he hath obtained liberty and allowance from her parents or Governors or in absence of such of the nearest magistrate, he shall forfeit for the first offence five pounds, for the second towards the partie ten pounds, and be bound to forbeare any further attempt and proceedings in that unlawful designe, without or against the allowance aforesayd. And for the third offence upon information or complaint by such parents or Governors to any Magistrate, giving bond to prosecute the party, he shall be committed in prison, and upon hearing and conviction by the next court, shal be adjudged to continue in prison, untill the Court of Assistants shall see cause to release him."[499]

[Footnote 499: WHITMORE, Col. Laws of Mass. (1660-72), 172; ibid. (1672-86), 101; Mass. Col. Rec., II, 207. Cf. FRIEDBERG, Eheschliessung, 477, note; NEWHALL, _Ye Great and General Court_, 349-65, giving interesting examples.]

The courts were not without employment under this statute. In 1658 Paul Wilson appeared before the county court of Middlesex, sitting in Charlestown, "to answer the complaint of Deacon Upham for violent soliciting his daughter against his will." Whereupon the tribunal "admonished Wilson of his evil behavior towards the said Upham and his daughter Priscilla, and ordered him to give bond of ten pounds for his regular behavior towards the said parties." Accordingly the culprit gave bond "yt he will no more frequent the company of Priscilla Upham, nor by no means whether direct or indirect, make any more addresses vnto her without her fathers leave first orderly had & obteined."[500] For a similar offense, in 1672, the county court of Suffolk fined Benjamin Scott five pounds.[501] Two years later, before the same tribunal, Thomas Irons was presented "for procuring Richard Barnum to publish a marriage" between himself and Mary Arnold without her father's leave;[502] while the next February, as we learn from the record, John Lorin stood "convict on his own confession of making love to Mary Willis without her parents consent and after being forwarned by them, £5."[503]

[Footnote 500: MSS. Records of the County Court for Middlesex, I, 131.

In 1662 Marmaduke Johnson, who by his own confession had a wife in England, was convicted of trying to steal the affections of the daughter of Samuel Green without his knowledge and consent; and he was ordered to join his spouse by the first oportunity: ibid., I, 206. The next year Johnson was "fined £20 unless he give security" so to depart, in the meantime being "committed until the order is performed": ibid., 249. It may be further noted that on April 7, 1674, a Marmaduke Johnson is spoken of as "late constable of Cambridge": ibid., III, 87.]

[Footnote 501: MSS. Records of the County Court of Suffolk, 106.]

[Footnote 502: Irons was fined 20 shillings, and Barnum half that sum: MSS. Records of the County Court of Suffolk (July 28, 1674), 255, 256. On the same day "Edward Peggy being bound over for using indirect means 'by powders or other wayes unlawfull to Engage the affections or desires of women kinde to him' and for begetting a bastard child"--in particular for illegally "drawing away the affections of two girls"--was assessed 10 pounds and put under bonds for good behavior: ibid., 261.]

[Footnote 503: Ibid. (Feb. 4, 1674-75), 301. The records of the court of assistants in Mass. Col. Rec. (Sept. 1, 1640), I, 299, 300, contain a similar case.]

Although parents might be prosecuted for "unreasonably denying any child timely or convenient marriage,"[504] it is evident that lovers had to be very circumspect in old colonial days. In a community where power to dispose of a son or daughter in wedlock was believed to be the gift of heaven, it is not strange that "allowance" was sometimes hard to gain. Praising the chaste reserve of the gentle "old maid" of Boston whom he had learned to admire, John Dunton thus expresses the dominant view: "I am sure this is most agreeable to the Virgin modesty, which should make Marriage an act" rather of "obedience" than "choice." "And they that think their Friends too slowpaced in the matter give certain proof that lust is the sole motive."[505] Nor was the average New England house-father at all likely to allow sentiment to get the better of prudence in seeking a match for his child. He was more apt to be governed by a spirit of cold calculation which never for an instant lost sight of the "main chance." Judge Sewall, for example, can hardly be called "slowpaced" in providing his daughters with wooers. He superintends the whole "business" of love-making with never-flagging zeal. Poor, timid daughter Betty is fairly worried into matrimony, perhaps as the only sure way of escaping her father's nagging. What a procession of "captains" and "persons of worth" he parades before the reluctant girl before he succeeds in gaining his will! The first who "wished to speak with her" is Captain Tuthill, who appears as a suitor when she is but seventeen years of age. After the judge had made careful and satisfactory inquiry as to the captain's estate--which he finds valued at £600 or £700--and the young man "in good Business, and like to be in better;"[506] and after having his daughter read to him about the courtship of Adam and Eve "as a soothing and alluring preparation for the thought of matrimony,"[507] the lover is invited to call. Of this visit and its surprising result Sewall thus writes in his Diary: "At night Capt. Tuthill comes to speak with Betty, who hid her self all alone in the coach for several hours till he was gon, so that we sought at several houses, till at last came in of her self, and look'd very wild."[508] A number of others in rapid succession have little better luck with the coy maiden. The next fall, however, on returning from a journey to Rhode Island, the judge finds his "family in health, only disturb'd at Betty's denying Mr. Hirst." A month later he sadly records that he supposes even this suitor has "taken his final leave."[509] Nevertheless two days after, on October 26, 1699, he addresses Betty at "Brantry," where she had gone on a visit, the following characteristic letter:

"Mr. Hirst waits upon you once more to see if you can bid him welcome. It ought to be seriously considered, that your drawing back from him after all that has passed between you, will be to your Prejudice; and will tend to discourage persons of worth from making their Court to you. And you had need well to consider whether you are able to bear his final Leaving of you, howsoever it may seem gratefull to you at present. When persons come toward us, we are apt to look upon their Undesirable Circumstances mostly; and therefore to shun them. But when persons retire from us for good and all, we are in danger of looking only on that which is desirable in them to our wofull Disquiet. Whereas 'tis the property of a good Balance to turn where the most weight is, though there be some also in the other Scale. I do not see but that the Match is well liked by judicious persons, and such as are your Cordial Friends, and mine also.

[Footnote 504: Law of 1641: WHITMORE, Col. Laws of Mass. (1660-72), 137.]

[Footnote 505: DUNTON, Life and Errors, I, 103; idem, Letters from New England, 101, 102.]

[Footnote 506: SEWALL'S Diary, in 5 Mass. Hist. Coll., V, 490.]

[Footnote 507: EARLE, Customs and Fashions, 57.]

[Footnote 508: SEWALL'S Diary, in 5 Mass. Hist. Coll., V, 491.]

[Footnote 509: Ibid., 503.]

"Yet notwithstanding, if you find in yourself an i[=m]ovable, incurable Aversion from him, and ca[=n]ot love, and honour, and obey him, I shall say no more, nor give you any further trouble in this matter. It had better be off than on. So praying God to pardon us, and pity our Undeserving, and to direct and strengthen and settle you in making a right Judgment, and giving a right Answer, I take leave, who am, dear child, your loving father. Your mother remembers to you."[510]

[Footnote 510: SEWALL'S Letter-Book, in 6 Mass. Hist. Coll., I, 213.]

Either this letter had the desired influence or Betty was unable to endure the "wofull disquiet" of a "final leaving;" for a year later it stands written that "Mr. Grove Hirst and Elizabeth Sewall are married by Mr. Cotton Mather."[511]

[Footnote 511: SEWALL'S Diary, in 5 Mass. Hist. Coll., VI, 24. In like spirit the judge manages the marriage of his daughter Mary with Sam Gerrish: SEWALL'S Letter-Book, in 6 _Mass. Hist. Coll._, I, 379; Diary, in 5 Mass. Hist. Coll., V, xxxviii; VI, 250, 251, 263. On these and other illustrations of New England courtship see EARLE, Customs and Fashions, 56 ff.]

IV. PRE-CONTRACTS, BUNDLING, AND SEXUAL IMMORALITY

The colonists were extremely anxious to restrain vice by legislation. The whole field of private morals was brought under the purview of the magistrate. Unchastity and sexual crimes, especially, they were determined to prevent at all hazards; and, in consequence, the early colonial and court records are far from pleasant reading. Conjugal infidelity is especially abhorred by the lawmaker. Originally, in all the New England colonies save Rhode Island and Plymouth, death was the penalty prescribed for adultery with a "married or espoused wife." In the New World the Puritan thus actually realized what Luther, Hooper, and other Reformation Fathers ardently desired as an ideal fulfilment of the Mosaic code.[512] The capital law of Massachusetts, at any rate, was not a dead letter, as is clearly shown by the records of the early period. The only attempt to put in force the original act of 1631 was, indeed, a failure. It appears that in 1637 two men and one woman were convicted; but on the ground that the statute had been "made by the court of assistants by allowance of the general court," and for fear lest it had not been "sufficiently published," the extreme penalty was not administered. Instead the culprits were whipped and then banished on pain of death should they return.[513] The act of 1631 was, however, at once confirmed,[514] and it remained in force until superseded by the "Body of Liberties," whose provision on this point was not abrogated during the period of the colonial charter. Under the law as thus constituted two persons were condemned and executed in 1644.[515] Further, in his Magnalia Cotton Mather mentions the execution of an adulterer from Weymouth.[516] These are the only cases of capital punishment for this offense yet discovered; but a number of persons narrowly escaped it, where the evidence seems sufficient to warrant the death penalty. Apparently the courts shrank from pronouncing sentence according to the full rigor of the law,[517] satisfying themselves with lesser punishments, such as imprisonment, banishment,[518] or whipping.

[Footnote 512: Mass. Col. Rec., I, 92 (1631); WHITMORE, Col. Laws of Mass. (1660-72), 55 ("Body of Liberties," 1641), 128; ibid. (1672-86), 15; New Haven Col. Rec., II, 577; TRUMBULL, Blue Laws, 200; Conn. Col. Rec., I, 77; TRUMBULL, op. cit., 60; New Hamp. Prov. Papers, I, 385 (Cutt Code). Beginning with the "Body of Liberties," 1641, the capital law of Massachusetts cites Lev. 20:19; 18:20; Deut. 22:23, 24; and the laws of the other colonies are supported by the same or like passages of the Jewish Code.]

[Footnote 513: The "elders" being appealed to promptly decided that the three persons then lying in prison should be put to death, "if the law had been sufficiently published." But for the reasons named in the text the general court thought it was "safest that these persons should be whipped and banished": WINTHROP, Hist. of New England, I, 309; Mass. Col. Rec., I, 198, 202, 203, 225. Compare the excellent monograph of DAVIS, The Law of Adultery and Ignominious Punishments, 6-11, who gives the details regarding this case and the law of 1631; and calls attention to the English act of 1650, which classes incest and adultery among felonies, citing thereon PIKE, Hist. of Crime in England, II, 182; and BLACKSTONE, Commentaries, IV, 64.]

[Footnote 514: March, 1637-38. "The law against adultery made by the Particular Court in October, 1631, is confirmed, that whosoever lieth with another man's wife, both shall be punished by death; and this is to be promulgated."--Mass. Col. Rec., I, 225. This law was confirmed in 1640, the act of 1631 being then formally repealed: ibid., I, 301.]

[Footnote 515: In 1643-44, at a quarter court held in Boston, "James Brittanie being found guilty of adultery with Mary Latham, he was condemned to death. Mary Latham being found guilty of adultery with James Brittanie, she was condemned to death."--Record of the Court of Assistants of Mass. Bay Colony, 1641-44 (from the Barlow MS.) in WHITMORE'S Bibliographical Sketch of the Laws of Mass., xlii. According to WINTHROP, Hist. of New England, II, 157-59, these persons were executed.]

[Footnote 516: DAVIS, The Law of Adultery, 15, 16.]

[Footnote 517: Thus on Sept. 7, 1641, for adulterous practices a man was "censured to bee sent to the gallos w^{th} a roape about his neck, & to sit upon the lather an houre, the roapes end throwen over the gallos, so to returne to prison."--Mass. Col. Rec., I, 335; cf. DAVIS, op. cit., 15. In 1645 Henry Dawson came near suffering the extreme penalty: WINTHROP, op. cit., II, 305. Three years later the "Co^rte acquit Elisa : Pennion of the capitall offence charged upon her by 2 sev^rall inditements for adultery," but sentence her to be "whiped" in Boston and again "at Linn w^{th}in one month" (1648): Mass. Col. Rec., II, 243. Still more striking are the cases of Elizabeth Hudson and Bethia Bulloine (Bullen), "married women and sisters," carried from the county court at Boston before the assistants in 1667. On a special verdict by the jury the latter tribunal sentenced each "to be by the Marshall Generall ... on y^e next lecture day presently after the lecture carried to the Gallowes & there by y^e Executioner set on the ladder & with a Roape about her neck to stand on the Gallowes an half houre & then brought ... to the market place & be seriously whipt w^{th} tenn stripes or pay the Sume of tenn pounds," standing committed till the sentence be performed: MSS. Early Court Files of Suffolk (Sept. 11, 1667), No. 821. Whether this sentence was for adultery as charged or for "lascivious carriage" we are not informed. In NOBLE'S Records of the Court of Assistants, I, 56, 57, 70, 71, 73, 74, 114, 115, 240, 252, are ten cases of punishment by rope and gallows and whipping instead of death, the jury plainly avoiding the penalty for adultery under the law.]

[Footnote 518: Under date of Sept. 2, 1674, the Suffolk Files contain a petition from a husband praying that his wife--for adultery banished to Rhode Island the preceding year--might "be allowed to return in peace." His petition was denied, although he avers that through his wife's absence "his life is most uncomfortabell," having "no Relation at all that liveth with him and it being low with him and not abell to ... pay Rent in seuerall places & not willing to Remaine away from the things of god ... to goe to liue in a place and with such as he never delighted in."--MSS. Early Court Files of Suffolk, No. 1325.]

In Plymouth the death penalty for adultery seems never to have been established.[519] Instead, the "scarlet letter," a punishment even more terrible to bear, was there adopted as a permanent badge earlier than in any other colony; while in England it appears never to have been so employed for any crime.[520] So far as known, the oldest typical case of bearing such a "stigma" continuously for adultery occurred in 1639. In that year a woman was sentenced to be "whipt at a cart tayle" through the streets, and to "weare a badge vpon her left sleeue during her aboad" within the government. If found at any time abroad without the badge, she was to be "burned in the face w^{th} a hott iron."[521] Two years later a man and a woman for the same offense were severely whipped "at the publik post" and condemned while in the colony to wear the letters AD "vpon the outeside of their vppermost garment, in the most emenent place thereof."[522] So the custom was already developed in judicial practice when the oldest statute providing for the "scarlet letter" appeared in 1658. It was then enacted "that whosoeuer shall comitt Adultery shalbee seuerly punished by whiping two seuerall times; viz: once whiles the Court is in being att which they are convicted of the fact and 2^{cond} time as the Court shall order; and likewise to weare two Capital letters ziz; AD cut out in cloth and sewed on theire vpermost Garments on theire arme or backe; and if at any time they shalbee taken without the said letters whiles they are in the Gou^rment soe worn to bee forth with taken and publickly whipt."[523]

[Footnote 519: But the law is not entirely clear: see _Plym. Col. Rec._, XI, 12; and the comments of DAVIS, The Law of Adultery, 16.]

[Footnote 520: See the facts collected by DAVIS, op. cit., 16-32. For Massachusetts, between 1633 and 1681, are a number of sentences to wear a badge for offenses other than adultery, such as drunkenness, theft, wanton behavior, incontinence, or the disturbing of public worship. In most instances the mark is to be worn temporarily; but in three cases it is a continuous punishment. Thus on March 4, 1633-34, for drunkenness, Robert Coles is "sentenced to be disfranchised, and to wear about his neck, and to hang about his outer garment a D made of red cloth set upon white, to continue for a year and not to leave it off at any time when he should come among company."--DAVIS, op. cit., 18; Mass. Col. Rec., I, 112. This appears to be the earliest reference to a red badge placed upon the outer garments. See also the case cited by Davis from JOSSELYN'S Account of Two Voyages to New England (VEAZIE'S reprint, Boston, 1865), 178, 179, occurring either in Massachusetts or Plymouth prior to 1671; the similar case of sentence to wear a "Roman B cut out ridd cloth," for unclean and lascivious behavior and blasphemous words: in Plym. Col. Rec., III, 111, 112 (March 5, 1656-57); and one in Mass. Col. Rec. (Sept. 3, 1639), 269.]

[Footnote 521: Plym. Col. Rec., I, 132.]

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

[Footnote 523: Ibid., XI, 95, 172.]

The Plymouth statute was copied into the Cutt Code for New Hampshire in 1679-80.[524] By the act of 1701, taken from the Massachusetts law of 1694, the initial letter is still prescribed;[525] and down to its repeal in 1792 the law was frequently enforced by the courts.[526]

[Footnote 524: New Hamp. Prov. Papers, I, 384-86.]

[Footnote 525: By the marriage act of 13 W. III., 1701: New Hamp. Prov. Papers, III, 224. This act is retained in Acts and Laws of New Hamp. (Portsmouth, 1761), 53, 54; and ibid. (Portsmouth, 1771), 10, 11.]

[Footnote 526: There is a discussion of several cases in SHIRLEY, "Early Jurisprudence of New Hamp.," _Procds. New Hamp. Hist. Soc._ (1876-84), 279 ff.]

It is an evidence of the more humane tendency of Rhode Island legislation that neither death nor the scarlet badge seems ever to have been prescribed for adultery, although the offense was otherwise harshly punished. The culprit is to be "publickly set on the Gallows in the Day Time, with a Rope about his or her Neck, for the Space of One Hour; and on his or her Return from the Gallows to the Gaol, shall be publickly whipped on his or her naked Back, not exceeding Thirty Stripes; and shall stand committed to the Gaol of the County wherein convicted, until he or she shall pay all Costs of Prosecution."[527]

[Footnote 527: Act of 1749: in Acts and Laws of R. I. (Newport, 1767), 6; also ibid. (Newport, 1752), 67, 68. By the earlier statute as given in Acts and Laws (1745), 118, the punishment is thirty-nine stripes or a fine not exceeding 10 pounds.]

In Connecticut a brand appears to have superseded the death penalty at least by 1673, as shown in the code of that year. The provision of this code is retained almost exactly in the compilation of 1769, requiring "that whosoever shall commit adultery with a Married Woman or one Betrothed to another Man, both of them shall be severely Punished, by Whipping on the naked Body, and Stigmatized or Burnt on the Forehead with the Letter A, on a hot Iron: And each of them shall wear a Halter about their Necks, on the outside of their Garments, during their Abode in this Colony, so as it may be Visible: And as often as either of them shall be found without their Halters, worn as aforesaid, they shall, upon Information, and Proof of the same, made before an Assistant or Justice of the Peace, ... be Whipt, not exceeding Twenty Stripes."[528]

[Footnote 528: Acts and Laws of Conn. (New Haven, 1769), 7; The Book of Gen. Laws, 1673 (Hartford, 1865), 2, 3; nearly the same in Acts and Laws (New London, 1715), 4, and ibid. (New London, 1750), 7.]

As a detail of interest it may be observed that nowhere save in Connecticut is the continuous wearing of a halter provided for by statute; although for offenses other than adultery several decisions show that during the seventeenth century this punishment was employed in the Bay Colony.[529] Furthermore, in Connecticut, as will hereafter appear, the law of incest differs from that of adultery in not requiring a rope to be so worn.

[Footnote 529: In 1654, for rape, a man, besides being whipped in Boston and again in Watertown, is sentenced during the court's pleasure to wear a rope around his neck, the end of it "hanging downe two feete long." If found at any time without the rope "aboue forty rodd from his house," he is to be whipped: Mass. Col. Rec., IV, Part I, 212. There is a similar case in 1642: DAVIS, The Law of Adultery, 30. That such sentences were executed is shown in a realistic way by a petition of 1670 preserved in the Suffolk Files. William Stacey, suffering for some offense not mentioned, prays "that the rope which he is forced to wear around his neck may be taken off. In answer the Secretary is required to send a copy of the Court's sentence to the Constable of Charlestoun that he may see that the sentence requiring the rope to be worn outside the clothes is carried out."--MSS. Early Court Files of Suffolk, No. 988. On May 6, 1646, "Elizabeth Fairefeild" petitioned the court of assistants that her husband might be discharged "from y^t pte of y^e censure inflicted on him for his notorious evills, of wearing y^e rope about his necke." He was, however, compelled to wear the rope six years more; for it was not until 1652 that his faithful wife's prayer was granted: Mass. Col. Rec., III, 67, 161, 273.]

The statute of Massachusetts prescribing the death penalty for adultery did not survive the fall of the charter. So in 1794 the scarlet letter was substituted.[530] The act published on June 20 of that year, and remaining in force until after the close of the provincial era, varies in several important details, though not essentially, from the laws of Plymouth and Connecticut already presented. The offenders "shall be set upon the gallows by the space of an hour, with a rope about their neck, and the other end cast over the gallows; and in the way from thence to the common goal shall be severely whip'd, not exceeding forty stripes each." Also the offenders "shall forever wear a capital A, of two inches long and proportionate bigness, cut out in cloth of a contrary color to their cloaths, and sewed upon their upper garments, on the outside of the arm, or on their back, in open view." If "found without their letters so worn, during their abode in this province, they shall, by warrant from a justice of peace, be forthwith apprehended and ordered to be publicly whip'd, not exceeding fifteen stripes, and so from time to time, toties quoties."[531]

[Footnote 530: Already in 1673, for having an illegitimate child and imposing it on her husband, a woman had been sentenced by the court, "if found in this Colony two months after this date that shee stands in the markett place on a stoole for one hower w^{th} a paper on hir breast w^{th} y^e Inscription THVS I STAND FOR MY ADVLTEROVS AND WHORISH CARRIAGE and that on a lecture day next after the lecture and then be seuerely whipt w^{th} thirty stripes."--NOBLE'S Records of the Court of Assistants, I, 10.]

[Footnote 531: Acts and Resolves, I, 171. This provision seems to have been retained until it was omitted in the act of Feb. 17, 1785: The Perpet. Laws of the Com. of Mass. (Boston, 1789), 203, 204.]

Apparently writers have thus far failed to discover positive evidence that the provision of this act regarding the capital letter was ever carried out. A search in the manuscript records of the superior court of judicature, however, has disclosed several interesting cases. The earliest sentence occurred in March, 1707, when Mathew Fuller and Hannah Parker were indicted before a superior court at Plymouth. In the exact terms of the statute Hannah was sentenced to be set on the gallows, receive thirty stripes upon her naked back, and forever after to wear the capital A. But, singularly enough, her paramour was acquitted, no reason being assigned therefor either in the court record or in the files.[532] Again in 1721 Jemima Colefix, for sinning with a free negro and bearing a mulatto child, received a similar sentence; and in this case also the accused man was acquitted of being the putative father as had been charged.[533] The next case is dated February 9, 1730-31; and it shows that men as well as women had to endure this penalty. Before a court held in Boston "the jurors present John Warren, miller, and Rachel Gould for adultery," both being married persons. Although they pleaded not guilty, they were each set on the gallows, given thirty-nine stripes, and condemned to wear the capital letter.[534] Twenty years later, on September 26, 1752, "Daniel Bayley, cooper, and Mary Rainer" received the same punishment, except that they each suffered forty stripes, the full number allowed by the statute.[535] Finally after the lapse of thirty years more, just as the War of Independence was drawing to a close, we learn from the records that, following the usual stripes and exposure on the scaffold, Jerusha Doolittle was condemned to wear the fatal A as a badge of shame "forever."[536]

[Footnote 532: MSS. Records of the Superior Court of Judicature, III (1700-14), fol. 206. This decree may not actually have been carried out. The record concludes, "she being big with child the sentence was suspended for the present."]

[Footnote 533: Ibid. (May 2, 1721), IV, foll. 355, 356. According to the MSS. Early Court Files of Suffolk, No. 15,180, the order of execution to the sheriff says she was convicted on her own confession and accused the negro Humphers of being the father. The woman was apparently an experienced sinner. Fifteen years earlier "Jemima Colefix ... being presented ... for whoredom with a Negro, appeared and owned the same but that it was before marriage with her present Husband." Severely whipped twenty stripes, costs, and stands committed: MSS. Records of the Court of General Sessions of Suffolk (Jan. 27, 1706), I, 144.]

[Footnote 534: MSS. Records of the Superior Court of Judicature (1730-33), fol. 49.]

[Footnote 535: Ibid. (1752-53), fol. 190. The MSS. Early Court Files of Suffolk, No. 29,729, show that on this conviction without further proof "George Rainer [Raynord]," Mary's husband, got a complete divorce. The statutory limit of forty stripes was originally fixed according to the "law of God": WINTHROP, Hist. of N. E., II, (ed. 1825-26), 250.]

[Footnote 536: MSS. Records of the Supreme Judicial Court (1781-82), leaf 41. Besides the cases of conviction discussed in the text, there are in the records a number of instances of acquittal for the same offense. In the MSS. Early Court Files of Suffolk (May 28-30, 1700), No. 4715, is an interesting example of extradition for adultery; and the survival of the ancient "chattel" interest of the husband in the wife is revealed by three damage suits for trespass on account of alleged assault upon, and in one for detaining, the wife: MSS. Records of the Superior Court of Judicature (1763-64), fol. 70; ibid. (1767-68), fol. 163; ibid. (1775-78), fol. 144; ibid. (1739-40), fol. 286. A similar case of "drawing away the affections" of a daughter may be found in MSS. Early Court Files of Suffolk (1671-72), No. 1100.]

This closes the list of cases found in which the stigma is referred to. On the other hand, there are a number of sentences for adultery, or for what would ordinarily be so regarded, where this penalty is not imposed. These are the cases of semi-adulterous conduct, nominally provided for by the act of 1694, in which there is either no charge or not sufficient evidence of absolute transgression.[537] Usually one and sometimes both of the culprits are married. Fines, stripes, and occasionally banishment are the penalties imposed. As in the early period, there is manifestly a hesitation to urge conviction for "adultery" so as to involve the extreme penalty of the scarlet letter. The courts thus seem to favor a strict construction of the statute, giving the accused the benefit of the more lenient interpretation. In several cases the jury declines to convict for the offense charged where the evidence would clearly seem enough to sustain a verdict.[538]

[Footnote 537: These convictions are usually not for "adultery," but for being in bed together, according to a clause of the act of 1694 providing that when a man is found in bed with another person's wife each offender shall receive not more than thirty stripes, unless one was surprised and not consenting. For examples, some of them acquittals and some convictions, see MSS. Records of the Superior Court of Judicature, I (Oct. 30, 1694), fol. 129; ibid., III (May 7, 1700), foll. 10, 11; ibid., 1736-38 (Aug. 8, 1738), fol. 209; ibid., 1757-59 (Aug. 1, 1758), 391; ibid., 1757-59 (Feb. 21, 1759), 554; ibid., 1760-62 (Sept. 16, 1760), foll. 122, 123; ibid., 1763-64 (Jan. 25, 1763), fol. 11; ibid., 1763-64 (April 26, 1763), fol. 44; ibid., 1767-68 (April 12, 1765), fol. 164; MSS. Records of Gen. Sessions of Suffolk (April 2, 1717), II, 151.

For the earlier period the Athenæum copy of the MSS. Records of the County Court of Suffolk, 34 (March 17, 1671-72), 113 (Jan. 28, 1672-73), 585 (May 5, 1679), 633 (Jan. 27, 1679-80), contains four analogous cases; and there is one in MSS. Records of the County Court of Middlesex (April 1, 1684), IV, 97.]

[Footnote 538: Thus at a superior court held at Falmouth for Cumberland and Lincoln counties, June 28, 1763, the "jurors present John Lawrence, husbandman, and Mary Lawton, both married, for adulterously dwelling together for five years, frequently lodging together in the same bed knowing each other to be married, being found adulterously in bed together and not surprised but consenting, and having carnal knowledge together. John was arraigned, pleaded not guilty, and the jury returned a verdict of guilty except to the charge of having committed adultery. 30 stripes and recognition in £100 to keep the peace." [Mary not tried.]--MSS. Records of the Superior Court of Judicature (1763-64), fol. 90. So also before a superior court held at Worcester, April 20, 1773, Joshua Phillips, laborer, presented by the jury for "committing adultery" with Mary, wife of Edward Rice, was acquitted. Then the jurors present them both "for being found at divers times in bed together.... They pleaded not guilty. Convicted. Joshua fined £20 and costs. Mary 20 stripes and costs."--Ibid. (1773-74), foll. 36, 38.]

Throughout New England, Rhode Island alone excepted, persons guilty of incest--that is to say, of uniting within the degrees of consanguinity or affinity legally forbidden--were stigmatized with an initial letter precisely as in the case of adultery. An act of Massachusetts in 1692, "for the punishing of capital offenders," makes this offense a felony punishable with death.[539] Because some of the "articles" dealing with capital crimes, among which is incest, "were conceived in very uncertain and doubtful terms," and because in such cases the penalty of death was not "conformable to y^e Laws of England," the act was disallowed by the privy council in August, 1695.[540] However, in June of the same year a new act for the prevention of incestuous marriages had been adopted by the general court; and this remained in force during the provincial era. By it the forbidden degrees are enumerated in harmony with the English ecclesiastical law. For violation of its provision exactly the same penalty in the same words is imposed as by the statute of 1694 for the punishment of adultery, except that in place of A a capital I is to be continuously worn.[541] This act of 1695 was adopted by New Hampshire in 1714,[542] and by Connecticut in 1702, the provision regarding the initial letter reappearing in the statute books of the latter commonwealth until 1821.[543]

[Footnote 539: Acts and Resolves, I, 56 (Oct. 29).]

[Footnote 540: See the "Letter from the Privy Council," _Acts and Resolves_, I, 56, note; and compare DAVIS, The Law of Adultery, 12, 13.]

[Footnote 541: Acts and Resolves, I, 208-10.]

[Footnote 542: By 13 Anne: in Acts and Laws (Portsmouth, 1761), 55, 56; and ibid. (Portsmouth, 1771), 42, 43.]

[Footnote 543: Revision of 1702, 73; Acts and Laws (New London, 1715), 74-76; ibid. (New London, 1750), 145; ibid. (New Haven, 1769), 145; ibid. (New London, 1784), 136.]

In Massachusetts the legal stigma for incest was often imposed by judicial sentence. As already noticed by Davis, such a sentence in 1743 was executed upon Andrew Fleming, of Groton, who had first been set on the gallows for an hour and whipped forty stripes.[544] Hitherto no other examples of wearing the capital I seem to have been discovered. But a careful search in the manuscript records of the superior court for the period ending in 1780 has brought to light five additional cases. The first of these occurred in 1729 and the last in 1759. In every instance the culprit is punished with rope and gallows, stripes, and the scarlet letter.[545]

[Footnote 544: This case is in MSS. Records of the Superior Court of Judicature (1740-42), fol. 264. From the Suffolk Files (360-66, 557) DAVIS, The Law of Adultery, 13, 14, quotes the warrant of the sheriff for the execution; and also a notice of the case from the Boston Weekly News-Letter of Thursday, Feb. 10, 1743, stating that the daughter Elizabeth, with whom the crime was committed, had absconded.]

[Footnote 545: The five cases are as follows: (1) Salem, Oct. 28, 1729: Peter Harding, tailor, for having carnal knowledge with his daughter; gallows an hour, thirty-nine stripes, and capital I; MSS. Records of the Superior Court of Judicature (1725-30), fol. 274. (2) Worcester, Sept. 19, 1752: Jonathan Fairbanks, husbandman, and Sarah Armstrong, his wife's daughter; Jonathan sentenced as above, except twenty stripes: ibid. (1752-53), fol. 181. (3) Springfield, Sept. 24, 1754: Joseph Severance and Eunice Classon, his wife's sister; Joseph sentenced as above, except thirty stripes. (4) Eunice, particeps criminis in the preceding case, receives the same sentence, except twenty stripes: ibid. (1755-56), fol. 341. (5) Cambridge, Aug. 7, 1759: Judah Clark and Huldah Dudley, his wife's daughter; Huldah sentenced as above, except thirty stripes: ibid. (1757-59), 655.]

The New England Puritans were, of course, very serious in their efforts to check sexual immorality. Their laws are characteristic of the age. As yet small progress had been made in enlightened theories of crime and its punishment. Besides they were steeped to the core in Hebraism. More or less as a religious duty they accepted and re-enacted the harsh precepts of the primitive Jewish code. It is not a little curious, however, to see them preserving an ancient English usage, almost extinct in the mother-country--in some instances regulating it by statute--which "thwarted their endeavors for complete propriety."[546] This was the custom of pre-contract, contraction, or betrothal, which everywhere in New England was celebrated with due solemnity. Such was the case in Massachusetts.[547] By the Connecticut statute, as already noted, the "contract" was carefully distinguished from the "covenant;" and because many persons entangle themselves by rash and inconsiderate promises for their future joining in marriage, the act of 1640 requires eight days' public notice of the betrothal, after which a second period of eight days must elapse before the covenant is sealed.[548] The pre-contract was in use also in New Hampshire[549] and Plymouth. In the latter jurisdiction the "couple--having the consent of the parents or guardians, in the case of minors--made before two witnesses a solemn promise of marriage in due time, the ceremony having the formality of the magisterial weddings then in vogue."[550]

[Footnote 546: GOODWIN, Pilgrim Republic, 599, 600.]

[Footnote 547: COTTON MATHER, in his life of Danforth, says: "After his Contraction, according to the old usage of New England, unto the virtuous daughter of Mr. Wilson (whereat Mr. Cotton preached the sermon), he was married unto that gentle-woman, in the year 1651."--MATHER, Magnalia, IV, c. 3, § 6, Vol. II, 50. Cf. DEXTER, Congregationalism, 458 n. 166, who cites also a statement in MATHER'S Ratio, 112; likewise WINTHROP, Hist. of New England, II, 382 n. 2, whose mistake has already been mentioned. Compare EARLE, Customs and Fashions, 68 ff., who gives the "texts" of some of the betrothal sermons.]

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

[Footnote 549: SHIRLEY, "Early Jurisprudence of New Hamp.," Procds. New Hamp. Hist. Soc. (1876-84), 308.]

[Footnote 550: GOODWIN, Pilgrim Republic, 600; cf. _Plym. Col. Rec._, XI, 172.]

Undoubtedly pre-contract was derived from the English "espousals," which, it has already appeared, were a direct survival of the beweddung of the Anglo-Saxon laws. But in New England the betrothal gained a peculiar legal significance. "The betrothed woman was put, both by law and social custom, one step above the woman who was not betrothed, and one step below the woman who was married. This was so both as respects the civil and the criminal law."[551] In Massachusetts, Connecticut, and New Haven the "espoused wife" like the married wife is to suffer death for adultery;[552] while for fornication, on the other hand, the single woman and her partner in guilt are much less severely punished. The betrothed woman "was sentenced to wear the brand of the 'scarlet letter,' precisely as if she were married."[553]

[Footnote 551: SHIRLEY, loc. cit., 308.]

[Footnote 552: WHITMORE, Col. Laws of Mass. (1660-72), 55, 128; Conn. Col. Rec., I, 77; New Haven Col. Rec., II, 577; TRUMBULL, Blue Laws, 60, 200.]

[Footnote 553: SHIRLEY, loc. cit., 308. This is true of Connecticut for the entire provincial period: Acts and Laws (New Haven, 1769), 7, but apparently not of Massachusetts under the second charter. In New Hampshire under the Canfield Code, 1682, the betrothed woman is still treated as married, but whipping is dispensed with: New Hamp. Prov. Papers, I, 444, 445. But by the act of 1701 she is punished for fornication as a single woman: ibid., III, 224.]

Thus in New England the betrothal regained a sanction similar to that which it possessed according to primitive Germanic custom. It was, in fact, a kind of marriage. The espoused couple were separated from the world and placed in a relation whose sacredness might not be violated as respects others without the most serious consequences. On the other hand, it was entirely in harmony with this theory that when they "were guilty of incontinence with each other after pre-contract before marriage, their punishment was in general one half, or less than one half, what it would have been had there been no betrothment."[554] By the statute of Plymouth, for example, the penalty in such cases was fifty shillings for each person and imprisonment for a period not exceeding three days, or if the guilty persons "will not or cannot" pay the fine, they are to suffer "corporal punishment by whipping" instead; while for transgression before contract the fine was twice as much.[555] This was, in effect, to place a premium[556] upon wrongdoing committed between the espousals and the nuptials. Naturally the immorality of such offenses seemed thus to be lessened; and, as will presently appear, a vast amount of sexual license was the natural result.

[Footnote 554: SHIRLEY, loc. cit., 308.]

[Footnote 555: The whole of this curious law may prove instructive. It is enacted "That any person or persons that shall Comit Carnall Copulation before or without lawfull contract shalbee punished by whiping or els pay ten pounds fine apeece and bee Imprisoned during the pleasure of the Court soe it bee not aboue three daies but if they bee or wilbee married [i. e., a "delayed" marriage voluntarily solemnized or else marriage prescribed as a penalty] the one to the other; then but ten pounds both and Imprisoned as aforsaid; and by a lawfull Contract the Court vnderstands the mutuall consent of parents or guardians if there bee any to bee had; and a sollemne promise of marriage in due time to each other before two competent witnesses [this being the regulation of pre-contract already mentioned in the text]; and if any person or persons shall Comitt carnall Coppulation after contract and before Marriage they shall pay each fifty shillings and bee both Imprisoned," etc.--Plym. Col. Rec., XI, 172, 95, 46. Originally the punishment for fornication was left in the discretion of the magistrates: ibid., 12.]

[Footnote 556: Cf. SHIRLEY, loc. cit., 308, 309.]

The evil consequences of this anomalous state of the law were rendered all the more serious through the custom of "bundling" which obtained a wide prevalence in New England as it did also in New York and the other middle colonies. According to Stiles, who has produced the only general history of the subject, bundling "was practiced in two forms; first, between strangers, as a simple domestic makeshift arrangement, often arising from the necessities of a new country, and by no means peculiar to America; and, secondly between lovers, who shared the same couch, with the mutual understanding that innocent endearments should not be exceeded."[557] It is the second form with which we are here most concerned; and in its origin this likewise appears to have been "a custom of convenience." It was long regarded as a gross or licentious practice peculiar to New England. Thus Irving taunts the people of Connecticut with having tried to deprave the manners of the "Dutch lasses of the Nederlandts" through the introduction of that "horrible" usage.[558] But the Dutch maidens needed no lessons from their Yankee sisters in this regard; for in their "queesting" they had brought with them a form of bundling from Holland.[559] Indeed, it is not at all improbable that in this case Pilgrim and Puritan alike may have been strongly influenced by Dutch precedent, as they certainly were in more important institutions. Such an inference seems all the more justifiable, for as yet no trace of bundling has been reported "in any localities of England itself, the mother country;"[560] though in Ireland, Scotland, and Wales evidences of its recent existence are not wanting,[561] and the custom seems clearly to be deeply planted in the ancient usage of the German race.[562]

[Footnote 557: STILES, Bundling in its Origin, Progress, and Decline (Albany, 1871), 13, 14. GROSE, Dictionary of the Vulgar Tongue, thus explains the practice: "A man and a woman lying on the same bed with their clothes on; an expedient practiced in America on a scarcity of beds, when, on such occasions, husbands and parents frequently permitted travelers to bundle with their wives and daughters." This applies, of course, only to the first named and less interesting form of the custom. In almost the same words as those used by Stiles, MASSON, Journeys in Belochistan, Afghanistan, etc., III, 287, describes the bundling of lovers among the Afghans: see ADAMS, Some Phases of Sexual Immorality, 31, note. In general on this custom consult EARLE, Customs and Fashions, 62-64; WEEDEN, Ecc. and Soc. Hist. of N. E., II, 739, 864.]

[Footnote 558: IRVING, Knickerbocker's Hist. of New York (Philadelphia, 1871), Book III, chaps. vii, viii, 217-28; cf. STILES, Bundling, 45 ff.; ADAMS, _Some Phases of Sexual Immorality_, 31.]

[Footnote 559: Queesting (a seeking, similar to English "quest") seems to have existed until last century on the islands of Vlie, Wieringen, and perhaps elsewhere in Holland. "At night the lover has access to his mistress after she is in bed; and, upon an application to be admitted upon the bed, which is of course granted, he raises the quilt, or rug, and in this state queests, or enjoys a harmless chit-chat with her, and then retires. This custom meets with perfect sanction of the most circumspect parents, and the freedom is seldom abused. The author traces its origin to the parsimony of the people, whose economy considers fire and candles as superfluous luxuries in the long winter evenings."--STILES, op. cit., 35, 36, citing CARR, The Stranger in Ireland (1807).]

[Footnote 560: ADAMS, Some Phases of Sexual Immorality, 33. Mr. Adams, however, while pointing out the "singular and to me unaccountable, fact" that traces of bundling, found so widely in the New England colonies, have not yet been discovered in England, thinks that it "could hardly have found its way as a custom" from Holland or the other countries named; and he mentions, by way of supporting his conclusion, its great prevalence in Cape Cod where, according to Palfrey, until about 1825, "there was a purer strain of English blood to be found ... than could be found in any county of England." But wherever the Dutch settled the custom of bundling was tenacious, lasting in Pennsylvania at least until 1845: EARLE, Customs and Fashions, 63: and in New York at least until 1804: STILES, op. cit., 111.]

[Footnote 561: STILES, op. cit., 14-35, who cites various authorities for Wales, especially PRATT, _Gleaning through Wales, Holland, and Westphalia_ (3d ed., London, 1797), I, 105-7; and BINGLEY, North Wales (London, 1804), II, 282. Cf. also ADAMS, op. cit., 32; and BRAND, Popular Antiquities, II, 98.]

[Footnote 562: Bundling probably has its origin in the "proof-nights" which formerly were widely prevalent among the Teutonic peoples of Europe: see FISCHER, Ueber die Probenächte, 12 ff., 24 ff., 32-36.]

In New England, however, it was by no means confined to Connecticut.[563] It prevailed in the sister-provinces, and especially in both western[564] and eastern Massachusetts, down to the revolutionary period and perhaps for a good many years to come. Burnaby,[565] writing of his visit to that colony in 1759-60, gives a lively account of the custom, under the name of "tarrying," significantly observing that it takes place between the permission to pay court and the banns. In his view, bundling is on the whole an innocent practice, seldom being attended by evil consequences. On the other hand, that veracious historian, Rev. Samuel Peters, reproves Burnaby for presenting the custom in "an unfavorable light, and as prevailing among the lower class of people;" whereas, according to Peters, it exists among "all classes, to the great honor of the country, its religion and ladies."[566] Again in 1777 Lieutenant Anbury, "a British officer, who served in America during the Revolutionary War, and whose letters preserve many sprightly and interesting pictures of the manners and customs of that period,"[567] chats racily of an invitation to bundle which he received at Williamstown, Mass.--a courtesy brought about through the scarcity of beds for the entertainment of strangers.[568] Charles Francis Adams finds positive proof of the existence of the custom "within a ten-mile radius of Boston" at least until 1781;[569] and he also quotes a reference to it from a letter of Abigail Adams written three years later.[570] Nor apparently was bundling entirely abandoned in eastern Massachusetts until nearly fifty years thereafter, Cape Cod having the "dubious honor" of holding out against the "advance of civilization" in this regard until 1827.[571] The next year, in Franklin county, Me., a letter to the Portland Yankee reveals the custom existing in full vigor.[572]

[Footnote 563: STILES, Windsor, 495; WEEDEN, _Ecc. and Soc. Hist. of N. E._, II, 739.]

[Footnote 564: JUDD, Hadley, 247.]

[Footnote 565: "When a man is enamoured of a young woman and wishes to marry her, he proposes the affair to her parents.... If they have no objection, they allow him to tarry with her one night, in order to make his court to her. At their usual time the old couple retire to bed, leaving the young ones to settle matters as they can; who, after having sate up as long as they think proper, get into bed together also, but without putting off their undergarments, in order to prevent scandal. If the parties agree, it is all very well; the banns are published, and they are married without delay. If not, they part, and possibly never see each other again; unless, which is an accident that seldom happens, the forsaken fair one prove pregnant, and then the man is obliged to marry her, under pain of excommunication."--Travels in North America, 110, 111. Elsewhere he says that, while at first the practice may "appear to be the effects of grossness of character, it will, upon deeper research, be found to proceed from simplicity and innocence."--Ibid., 144. Cf. ADAMS, op. cit., 31, note; and LODGE, Short History, 438. The word "tarrying" is not always equivalent to "bundling," having a more general meaning. Nor was tarrying or bundling always restricted to one night; see STILES, Bundling, 70, 71.]

[Footnote 566: See STILES, op. cit., 51-60, for a long extract from the lively account of Peters, who says that in Connecticut bundling is "as old as the first settlement in 1634;" and that "about the year 1756 Boston, Salem, Newport, and New York, resolving to be more polite than their ancestors, forbade their daughters bundling on the bed with any young men whatever, and introduced a sofa to render courtship more palatable and Turkish;" but with more "natural consequences than all the bundling among the boors with their rurales pedantes through every village in New England besides." Of course, all this must be swallowed with a very large "grain of salt."]

[Footnote 567: STILES, op. cit., 66.]

[Footnote 568: ANBURY, _Travels through the Interior Parts of America; in a Series of Letters_ (new ed., London, 1781), II, 37-40: cited by STILES, op. cit., 66 ff. In a subsequent letter Anbury plagiarizes the passage from Burnaby which we have quoted in a preceding note.]

[Footnote 569: According to WORTHINGTON'S History of Dedham (1827), 109--"a town only ten miles from Boston--I find that the Rev. Mr. Haven, the pastor of the church there, alarmed at the number of cases of unlawful cohabitation, preached at least as late as 1781 'a long and memorable discourse,' in which, with a courage deserving of unstinted praise, he dealt with 'the growing sin' publicly from his pulpit, attributing 'the frequent recurrence of the fault to the custom then prevalent of females admitting young men to their beds who sought their company with intentions of marriage.'"--ADAMS, op. cit., 35. STILES, op. cit., 75-77, note, gives a long extract from Worthington, who represents Haven's sermon as having had a powerful influence in setting aside the custom of bundling. But already before this Jonathan Edwards had raised his voice against it.]

[Footnote 570: ADAMS, op. cit., 35; citing MRS. JOHN ADAMS'S Letters (1848), 161.]

[Footnote 571: STILES, op. cit., 110, note, where personal testimony is adduced.]

[Footnote 572: See the Appendix to STILES, op. cit., 113-25, where an article from the Yankee, of Aug. 13, 1828, containing the letter mentioned, is quoted. A search in the manuscript court records reveals not a single clear case of bundling. On Jan. 30, 1709-10, Jane Lee, widow, was presented and acquitted in Charlestown for conduct resembling bundling: MSS. Records of the Court of Gen. Sessions of Suffolk, I, 202. There is a more probable example in the MSS. Records of the Court of General Sessions of Middlesex (Dec. 15, 1702), I, 137.]

According to the judgment of Stiles, bundling "came nearest to being a universal custom from 1750 to 1780." Contrary to the popular view,[573] it appears to have been confined to the more humble and less cultivated classes; "to those whose limited means compelled them to economize strictly in their expenditure of firewood and candle-light."[574] No evidence has yet been produced showing that it made its appearance in the main centers of New England civilization.

[Footnote 573: Thus SHIRLEY, "Early Jurisprudence of New Hamp.," Procds. New Hamp. Hist. Soc. (1876-84), 308, declares that "the practice prevailed very largely in New England, among the rich and the poor, the educated and the uneducated, the cultivated and the uncultivated."]

[Footnote 574: STILES, op. cit., 65, 106. ADAMS, op. cit., 31, 32, 36, reaches the same conclusion. "It was," he says, "a practice growing out of the social and industrial conditions of a primitive people, of simple, coarse manners and small means," and probably did not exist in Boston, Salem, or Plymouth.]

Though bundling could arise only in a comparatively rude state of society, it seems in itself to have been neither very vicious nor very immoral. Yet manifestly it was easily capable of abuse. Under dangerous conditions it might readily degenerate into coarseness and vice. Such conditions were not wanting throughout the colonial era. The general tone of sexual morality was not high. The laws and usages already presented, which in effect invited transgression on the part of engaged lovers, afforded a constant temptation.[575] Bundling thus has its chief moral significance as an adjunct of pre-contract which must be held responsible for a very large share of the sexual misconduct revealed in the judicial records. Before the general court of Plymouth the cases of "uncleanness" after contract and before marriage are very numerous. According to Goodwin, they averaged one a year; and this appears to be a conservative estimate. By actual count the records of that colony, for the twenty-eight years between 1633 and 1661, show at least twenty-four sentences for ante-nuptial offenses, chiefly after betrothal; while during the seventeen years following 1661 there are not less than forty-one such judgments. Members of some of the most illustrious families of New England were guilty of indiscretions in this regard.[576] In several of the early cases the husband was publicly whipped in view of the wife, who sat near in the stocks.[577]

[Footnote 575: So also in Holland, it is interesting to note, bundling appears in connection with the practice of public betrothals as the cause of ante-nuptial transgressions. See Townshend's speech on the Hardwicke act in COBBETT-HANSARD, Parliamentary Debates, XV, 56-59.]

[Footnote 576: "There was Peregrine White, the first-born child of the Colony and stepson of Governor Winslow; Thomas Cushman, Jr., son of the elder; James Cudworth, Jr., son of the future general and deputy-governor, and Jonathan, his brother; Samuel Arnold, Jr., son of the Marshfield pastor; Isaac Robinson, Jr., grandson of the great Leyden pastor; Thomas Delano; Nathaniel Church; and other scions of leading families."--GOODWIN, Pilgrim Republic, 600, who, thinks it a mistake to suppose that generation "below the present in general purity of life;" since the pre-contract was "a sort of semi-marriage" and "such cases were ferretted out and recorded" with "impartial diligence."]

[Footnote 577: GOODWIN, op. cit., 600; cf. New Hamp. Prov. Papers, I, 386, 445. FREEMAN, Hist. of Cape Cod, I, 167, 168, gives the following forms of sentence: "A. F. for having a child born six weeks before the ordinary time of women after marriage, fined for uncleanness, and whipt, and his wife set in the stocks." "C. E., for abusing himself with his wife before marriage, sentenced to be whipt publicly at the post, she to stand by whilst the execution is performed. Done, and he fined five pounds for the trouble."]

The manuscript records of two counties of Massachusetts for a portion of the seventeenth century appear to demonstrate that such "miscarriages" before complete wedlock were not less frequent in the Bay Colony.[578] A thorough analysis of the records of the county court of Suffolk, covering the ten years 1671-80, brings to light twenty of these cases, while during the same period there are forty-three instances of transgression by "single women."[579] Now, it is important to remember that the statutes of Massachusetts, unlike those of Plymouth, do not discriminate between the offenses of single persons and those committed with each other by espoused lovers.[580] The question therefore arises as to whether the custom of pre-contract--for pre-contract was not established by law in that province--can be held in any way accountable for these facts. A comparison of the penalties imposed in the two classes of cases, as exhibited in Tables I and II, shows that an affirmative answer must be given. The sins of betrothed persons are in general punished with far less rigor than those of single men and women. Thus twenty-one out of forty-three single women, and eight out of thirteen single men, are sentenced to stripes alone, nineteen of them receiving each from fifteen to forty lashes;

TABLE I

CASES OF FORNICATION BEFORE MARRIAGE IN THE COUNTY COURT OF SUFFOLK COUNTY, MASS., 1671-80

1. Fine only 3 married couples £5 (both) 1 " " £3 " 1 " " 40s. " 1 " "

2. Fine and confession before the congregation or stripes 2 " "

3. Fine or stripes 15 " "

a) Fine-- £5 (both) 3 " " £4 " 3 " " £3 " 1 " " 50s. " 1 " " 40s. " 7 " "

b) Stripes-- 20 2 husbands 0 wives 15 12 " 2 " 10 1 " 13 "

TABLE II

CASES OF FORNICATION BY SINGLE PERSONS IN THE COUNTY COURT OF SUFFOLK COUNTY, MASS., 1671-80

The most noticeable feature of these cases is the tendency on the part of single men to confess the crime and accept punishment, besides becoming bound as putative fathers. All the convictions for fornication are by confession or pleading guilty.

1. Single women convicted 43

a) Fine or stripes 22 £15 or 20 stripes 1 £5 or {20 " 1 {15 " 4 £3 or {20 " 1 {15 " 3 50s. or {15 " 3 {10 " 2 40s. or {15 " 2 {10 " 4

b) Stripes alone 21 40 (20 each in two places) 2 30 2 20 11 15 4 10 2

2. Single men, confession 13

a) Fine or stripes 5 £5 or 20 stripes 4 40s. or 15 stripes 1

b) Stripes alone 8 30 3 20 5

c) Putative fathers 17

while in no case is a single man or woman merely fined. On the other hand, out of twenty married couples punished for ante-nuptial misconduct, fifteen are given the choice of fines or stripes, three are merely fined; and in no instance is whipping alone the penalty decreed. Furthermore, the fines are on the average smaller in these cases than in others, although as regards both fines and stripes the sentences are sadly lacking in uniformity. The conclusion seems irresistible that, in harmony with popular sentiment, the courts, exercising the discretion granted by the statute, were inclined to deal more leniently with the faults of the betrothed than with those of less favored bachelors and spinsters.

[Footnote 578: In addition the records of the court of assistants for the early period contain six cases, in each instance the husband alone being punished; two cases in 1635, one in 1637, one in 1639, two in 1640: Mass. Col. Rec., I, 163, 193, 269, 296, 297; and three cases where both husband and wife were fined, condemned to stand in the market place, or to confess on Lecture Day: Rec. of the Court of Assistants, 1641-1643/44, in WHITMORE, Bib. Sketch, xxxi, xxxiii, xxxvii.]

[Footnote 579: These are in the Athenæum copy of the MSS. Records of the County Court of Suffolk, 1671-80. There is also a unique example in the MSS. Early Court Files of Suffolk (1675), No. 1412. This is a case of appeal to the assistants from the county court at Salisbury, where John Garland and wife had been fined £5 for having a child eleven weeks too early. On his appeal John says, significantly: "I and She had parents Concent to marry and Legally published & Stayed after publication a Considerable time, that had any Such Act been co[=m]ited by us we could haue preuented it by marrying sooner;" and he further alleges that it was an untimely birth caused by the wife's fall. In reply, the attorney for the county of Norfolk said Garland had pretended to quote "Aristottle" to prove a child might come in the seventh month, but that if the court "please to Cast an eye vpon John garland ... they will judg Him to be no deepe man in phylosophie." Whereupon the worthy barrister, rejecting pagan learning, imparted the following bit of strictly orthodox biology: "It was well knowne to the Honored Court at Salisbury that the usuall time of woman was a set time As in genesis the 18 and the 10 compared with 2 of kings the 4th & the 16 verse, the Honored Court likewise knew that that time wast aboue seauen month as is the first of luke the 36 vers compared with the 39 & 40 and 56 & 57 verse of that chapter." The "jury" reversed the decision of the lower court.]

[Footnote 580: "If any man commit fornication with a single woman, they shall be punished, either by enjoining marriage, or fine, or corporal punishment, or all or any of these," as the court may determine: WHITMORE, Col. Laws of Mass. (1660-72), 153. Later disfranchisement, in the case of a freeman, was added: ibid., 231. See also WHITMORE, op. cit. (1672-86), 54, 208; Conn. Col. Rec., I, 527; New Haven Col. Rec., II, 590; Plym. Col. Rec., XI, 12, 46, 95, 172.]

Similar evidence is afforded by the incomplete records of the county court of Middlesex for the period 1629-86, supplemented by the Files. These contain in all thirty cases of transgression before marriage, eight of which fall within the ten years covered by the Suffolk records already considered. Most of the severe sentences (Table III) occur in this period and the six years immediately following, although the heaviest fine, twenty pounds for the couple, is imposed in 1663.[581] Seemingly, from the few cases known, single persons were treated more harshly than those who were betrothed.[582]

[Footnote 581: June 16, 1663. At a county court at Charlestown, "Daniel Weld and Bertha his wife convicted of fornication before marriage, appeared and made humble acknowledgment of their sin craving the favor of the court. Admonished seriously to consider their great sin and fined £10 apiece. Execution respited during the pleasure of the court."--MSS. Records of the County Court of Middlesex, I, 243. On the same day before the same court John Roy and wife were convicted of the same offense, and "pleaded that it was committed a fortnight after their solemn contract in marriage and being hindered of marriage were overcome by the temptation." They had to pay only 40s.: ibid., 241.]

[Footnote 582: In these volumes there are five cases of fornication by single persons. In the first, April 4, 1654, the two culprits got each twelve stripes; in another, April 1, 1684, a married man and a girl were parties, the man being sentenced to pay £20 or receive thirty stripes, the woman, £5; and in one instance, October 2, 1677, the woman was "whipt fifteen stripes." More cruel was the fate of Sarah Pore. On July 7, 1785, for refusing to name the father of her two children, she was condemned "to be whipt severely twenty stripes and to lie in the house of correction for twelve months, there to be kept at hard labor and to be whipt once a month until she confess." Of course, on August 14, she named the man. For these cases see MSS. Records of the County Court of Middlesex, I, 39; III, 107, 194; IV, 97, 171, 173.]

On presentment by the grand jury[583] or voluntarily confessions were made by wives and husbands before the court; and these documents contain evidence of the close relation

TABLE III

CASES OF FORNICATION BEFORE MARRIAGE IN THE COUNTY COURT OF MIDDLESEX COUNTY, MASS., 1649-86 [EXCEPT 1663-71]

During the same period these records contain five cases of fornication by single persons.

1. Fine only 15 married couples £20 (together) 1 " " £5 " 3 " " £4 " 6 " " £3 " 2 " " 40s. " 3 " "

2. Fine or stripes a) Fine 10 " " £1 (together) 5 " " £6 " 1 " " £4 " 3 " " £3 " 1 " " 50s. (wife) 1 b) Stripes 10 " 20 6 husbands 0 wives 15 1 " 0 " 10 3 " 10 "

3. Stripes only 15 1 " (the wife 50s. or whipped)

4. Confessions and petitions 3 married couples

5. Convicted and respited 1 " "

existing between the colonial church and state. On October 31, 1671, for instance, Christopher Wheaton and Martha his wife were sentenced in Boston to make an acknowledgment "in publique at Hull to y^e Satisfaction of y^e Congregation, & pay twenty Shillings fine," on pain of being whipped ten stripes each by the constable.[584] An elaborate "church confession," found among the Middlesex Files, would seem to prove that in another case the decree of the court was obeyed; and that the written acknowledgment made before the congregation was returned to the court for record.[585]

[Footnote 583: See the long petition and confession of Samuel and 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| ... Confessed on | | | | | | | | | | | | 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| ... Pleaded guilty and | | | | | | | | | | | | named man | 1| 3| 1| 4| 5| 6| 21| 18| 16| 7| 3| ... Conf. on recogniz'nce | | | | | | | | | | | | and named man | 10| 4| 6| 4| 3| 6| 16| 11| 15| 9| 1| ... Appeared, confessed, | | | | | | | | | | | | 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| ..| ..| ..| ..| ..| ..| ... Pleaded not guilty, | | | | | | | | | | | | 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 ----------------------------------+----+----+----+----+----+----+----+----+--- Single women: | | | | | | | | | 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 | .. | .. Married couples: | | | | | | | | | Fornication before marriage, | | | | | | | | | man alone accus'd | .. | .. | .. | .. | .. | .. | .. | .. | 2 20s. or 10 stripes | .. | .. | .. | .. | .. | 1 | 1 | .. | .. Fornication before mar'ge, woman| | | | | | | | | 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.

Spotted a typo or a problem in this chapter? Tell us