Chapter 26

[507]Earle,Customs and Fashions, 57.[508]Sewall'sDiary, in 5Mass. Hist. Coll., V, 491.[509]Ibid., 503.[510]Sewall'sLetter-Book, in 6Mass. Hist. Coll., I, 213.[511]Sewall'sDiary, in 5Mass. Hist. Coll., VI, 24. In like spirit the judge manages the marriage of his daughter Mary with Sam Gerrish:Sewall'sLetter-Book, in 6Mass. Hist. Coll., I, 379;Diary, in 5Mass. Hist. Coll., V, xxxviii; VI, 250, 251, 263. On these and other illustrations of New England courtship seeEarle,Customs and Fashions, 56 ff.[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.[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 ofDavis,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 thereonPike,Hist. of Crime in England, II, 182; andBlackstone,Commentaries, IV, 64.[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 This law was confirmed in 1640, the act of 1631 being then formally repealed:ibid., I, 301.[515]In 1643-44, at a quarter court held in Boston, "James Brittanie being found guilty of adultery with Mary Latham, he was condemned to death.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.) inWhitmore'sBibliographical Sketch of the Laws of Mass., xlii. According toWinthrop,Hist. of New England, II, 157-59, these persons were executed.[516]Davis,The Law of Adultery, 15, 16.[517]Thus on Sept. 7, 1641, for adulterous practices a man was "censured to bee sent to the gallos wtha 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 "Corte acquit Elisa : Pennion of the capitall offence charged upon her by 2 sevrall inditements for adultery," but sentence her to be "whiped" in Boston and again "at Linn wthin 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 yenext lecture day presently after the lecture carried to the Gallowes & there by yeExecutioner 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 wthtenn 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. InNoble'sRecords 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.[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.[519]But the law is not entirely clear: seePlym. Col. Rec., XI, 12; and the comments ofDavis,The Law of Adultery, 16.[520]See the facts collected byDavis,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 aredbadge placed upon the outer garments. See also the case cited by Davis fromJosselyn'sAccount of Two Voyages to New England(Veazie'sreprint, 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: inPlym. Col. Rec., III, 111, 112 (March 5, 1656-57); and one inMass. Col. Rec.(Sept. 3, 1639), 269.[521]Plym. Col. Rec., I, 132.[522]Ibid., II, 28 (1641).[523]Ibid., XI, 95, 172.[524]New Hamp. Prov. Papers, I, 384-86.[525]By the marriage act of 13 W. III., 1701:New Hamp. Prov. Papers, III, 224. This act is retained inActs and Laws of New Hamp.(Portsmouth, 1761), 53, 54; andibid.(Portsmouth, 1771), 10, 11.[526]There is a discussion of several cases inShirley, "Early Jurisprudence of New Hamp.,"Procds. New Hamp. Hist. Soc.(1876-84), 279 ff.[527]Act of 1749: inActs and Laws of R. I.(Newport, 1767), 6; alsoibid.(Newport, 1752), 67, 68. By the earlier statute as given inActs and Laws(1745), 118, the punishment is thirty-nine stripes or a fine not exceeding 10 pounds.[528]Acts and Laws of Conn.(New Haven, 1769), 7;The Book of Gen. Laws, 1673(Hartford, 1865), 2, 3; nearly the same inActs and Laws(New London, 1715), 4, andibid.(New London, 1750), 7.[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 ytpte of yecensure inflicted on him for his notorious evills, of wearing yerope 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.[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 wtha paper on hir breast wthyeInscriptionThvs I Stand For My Advlterovs And Whorish Carriageand that on a lecture day next after the lecture and then be seuerely whipt wththirty stripes."—Noble'sRecords of the Court of Assistants, I, 10.[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.[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."[533]Ibid.(May 2, 1721), IV, foll. 355, 356. According to theMSS. 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.[534]MSS. Records of the Superior Court of Judicature(1730-33), fol. 49.[535]Ibid.(1752-53), fol. 190. TheMSS. 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.[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 theMSS. 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 inMSS. Early Court Files of Suffolk(1671-72), No. 1100.[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, seeMSS. 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 theMSS. 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 inMSS. Records of the County Court of Middlesex(April 1, 1684), IV, 97.[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 "committingadultery" 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.[539]Acts and Resolves, I, 56 (Oct. 29).[540]See the "Letter from the Privy Council,"Acts and Resolves, I, 56, note; and compareDavis,The Law of Adultery, 12, 13.[541]Acts and Resolves, I, 208-10.[542]By 13 Anne: inActs and Laws(Portsmouth, 1761), 55, 56; andibid.(Portsmouth, 1771), 42, 43.[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.[544]This case is inMSS. 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 theBoston Weekly News-Letterof Thursday, Feb. 10, 1743, stating that the daughter Elizabeth, with whom the crime was committed, had absconded.[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 capitalI;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 criminisin 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.[546]Goodwin,Pilgrim Republic, 599, 600.[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 inMather'sRatio, 112; likewiseWinthrop,Hist. of New England, II, 382 n. 2, whose mistake has already been mentioned. CompareEarle,Customs and Fashions, 68 ff., who gives the "texts" of some of the betrothal sermons.[548]Conn. Col. Rec., I, 47, 48.[549]Shirley, "Early Jurisprudence of New Hamp.,"Procds. New Hamp. Hist. Soc.(1876-84), 308.[550]Goodwin,Pilgrim Republic, 600;cf.Plym. Col. Rec., XI, 172.[551]Shirley,loc. cit., 308.[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.[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.[554]Shirley,loc. cit., 308.[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.[556]Cf.Shirley,loc. cit., 308, 309.[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 tobundlewith 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: seeAdams,Some Phases of Sexual Immorality, 31, note. In general on this custom consultEarle,Customs and Fashions, 62-64;Weeden,Ecc. and Soc. Hist. of N. E., II, 739, 864.[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.[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 statequeests, 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, citingCarr,The Stranger in Ireland(1807).[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.[561]Stiles,op. cit., 14-35, who cites various authorities for Wales, especiallyPratt,Gleaning through Wales, Holland, and Westphalia(3d ed., London, 1797), I, 105-7; andBingley,North Wales(London, 1804), II, 282.Cf.alsoAdams,op. cit., 32; andBrand,Popular Antiquities, II, 98.[562]Bundling probably has its origin in the "proof-nights" which formerly were widely prevalent among the Teutonic peoples of Europe: seeFischer,Ueber die Probenächte, 12 ff., 24 ff., 32-36.[563]Stiles,Windsor, 495;Weeden,Ecc. and Soc. Hist. of N. E., II, 739.[564]Judd,Hadley, 247.[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; andLodge,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; seeStiles,Bundling, 70, 71.[566]SeeStiles,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 daughtersbundlingon 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 thebundlingamong the boors with theirrurales pedantesthrough every village in New England besides." Of course, all this must be swallowed with a very large "grain of salt."[567]Stiles,op. cit., 66.[568]Anbury,Travels through the Interior Parts of America; in a Series of Letters(new ed., London, 1781), II, 37-40: cited byStiles,op. cit., 66 ff. In a subsequent letter Anbury plagiarizes the passage from Burnaby which we have quoted in a preceding note.[569]According toWorthington'sHistory 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.[570]Adams,op. cit., 35; citingMrs. John Adams'sLetters(1848), 161.[571]Stiles,op. cit., 110, note, where personal testimony is adduced.[572]See the Appendix toStiles,op. cit., 113-25, where an article from theYankee, 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 theMSS. Records of the Court of General Sessions of Middlesex(Dec. 15, 1702), I, 137.[573]ThusShirley, "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."[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.[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 inCobbett-Hansard,Parliamentary Debates, XV, 56-59.[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."[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."[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, inWhitmore,Bib. Sketch, xxxi, xxxiii, xxxvii.[579]These are in the Athenæum copy of theMSS. Records of the County Court of Suffolk, 1671-80. There is also a unique example in theMSS. 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.[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 alsoWhitmore,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.

[507]Earle,Customs and Fashions, 57.

[508]Sewall'sDiary, in 5Mass. Hist. Coll., V, 491.

[509]Ibid., 503.

[510]Sewall'sLetter-Book, in 6Mass. Hist. Coll., I, 213.

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

[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.

[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 ofDavis,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 thereonPike,Hist. of Crime in England, II, 182; andBlackstone,Commentaries, IV, 64.

[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.

[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.) inWhitmore'sBibliographical Sketch of the Laws of Mass., xlii. According toWinthrop,Hist. of New England, II, 157-59, these persons were executed.

[516]Davis,The Law of Adultery, 15, 16.

[517]Thus on Sept. 7, 1641, for adulterous practices a man was "censured to bee sent to the gallos wtha 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 "Corte acquit Elisa : Pennion of the capitall offence charged upon her by 2 sevrall inditements for adultery," but sentence her to be "whiped" in Boston and again "at Linn wthin 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 yenext lecture day presently after the lecture carried to the Gallowes & there by yeExecutioner 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 wthtenn 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. InNoble'sRecords 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.

[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.

[519]But the law is not entirely clear: seePlym. Col. Rec., XI, 12; and the comments ofDavis,The Law of Adultery, 16.

[520]See the facts collected byDavis,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 aredbadge placed upon the outer garments. See also the case cited by Davis fromJosselyn'sAccount of Two Voyages to New England(Veazie'sreprint, 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: inPlym. Col. Rec., III, 111, 112 (March 5, 1656-57); and one inMass. Col. Rec.(Sept. 3, 1639), 269.

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

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

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

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

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

[526]There is a discussion of several cases inShirley, "Early Jurisprudence of New Hamp.,"Procds. New Hamp. Hist. Soc.(1876-84), 279 ff.

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

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

[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 ytpte of yecensure inflicted on him for his notorious evills, of wearing yerope 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.

[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 wtha paper on hir breast wthyeInscriptionThvs I Stand For My Advlterovs And Whorish Carriageand that on a lecture day next after the lecture and then be seuerely whipt wththirty stripes."—Noble'sRecords of the Court of Assistants, I, 10.

[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.

[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."

[533]Ibid.(May 2, 1721), IV, foll. 355, 356. According to theMSS. 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.

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

[535]Ibid.(1752-53), fol. 190. TheMSS. 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.

[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 theMSS. 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 inMSS. Early Court Files of Suffolk(1671-72), No. 1100.

[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, seeMSS. 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 theMSS. 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 inMSS. Records of the County Court of Middlesex(April 1, 1684), IV, 97.

For the earlier period the Athenæum copy of theMSS. 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 inMSS. Records of the County Court of Middlesex(April 1, 1684), IV, 97.

[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 "committingadultery" 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.

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

[540]See the "Letter from the Privy Council,"Acts and Resolves, I, 56, note; and compareDavis,The Law of Adultery, 12, 13.

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

[542]By 13 Anne: inActs and Laws(Portsmouth, 1761), 55, 56; andibid.(Portsmouth, 1771), 42, 43.

[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.

[544]This case is inMSS. 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 theBoston Weekly News-Letterof Thursday, Feb. 10, 1743, stating that the daughter Elizabeth, with whom the crime was committed, had absconded.

[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 capitalI;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 criminisin 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.

[546]Goodwin,Pilgrim Republic, 599, 600.

[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 inMather'sRatio, 112; likewiseWinthrop,Hist. of New England, II, 382 n. 2, whose mistake has already been mentioned. CompareEarle,Customs and Fashions, 68 ff., who gives the "texts" of some of the betrothal sermons.

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

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

[550]Goodwin,Pilgrim Republic, 600;cf.Plym. Col. Rec., XI, 172.

[551]Shirley,loc. cit., 308.

[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.

[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.

[554]Shirley,loc. cit., 308.

[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.

[556]Cf.Shirley,loc. cit., 308, 309.

[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 tobundlewith 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: seeAdams,Some Phases of Sexual Immorality, 31, note. In general on this custom consultEarle,Customs and Fashions, 62-64;Weeden,Ecc. and Soc. Hist. of N. E., II, 739, 864.

[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.

[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 statequeests, 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, citingCarr,The Stranger in Ireland(1807).

[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.

[561]Stiles,op. cit., 14-35, who cites various authorities for Wales, especiallyPratt,Gleaning through Wales, Holland, and Westphalia(3d ed., London, 1797), I, 105-7; andBingley,North Wales(London, 1804), II, 282.Cf.alsoAdams,op. cit., 32; andBrand,Popular Antiquities, II, 98.

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

[563]Stiles,Windsor, 495;Weeden,Ecc. and Soc. Hist. of N. E., II, 739.

[564]Judd,Hadley, 247.

[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; andLodge,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; seeStiles,Bundling, 70, 71.

[566]SeeStiles,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 daughtersbundlingon 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 thebundlingamong the boors with theirrurales pedantesthrough every village in New England besides." Of course, all this must be swallowed with a very large "grain of salt."

[567]Stiles,op. cit., 66.

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

[569]According toWorthington'sHistory 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.

[570]Adams,op. cit., 35; citingMrs. John Adams'sLetters(1848), 161.

[571]Stiles,op. cit., 110, note, where personal testimony is adduced.

[572]See the Appendix toStiles,op. cit., 113-25, where an article from theYankee, 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 theMSS. Records of the Court of General Sessions of Middlesex(Dec. 15, 1702), I, 137.

[573]ThusShirley, "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."

[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.

[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 inCobbett-Hansard,Parliamentary Debates, XV, 56-59.

[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."

[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."

[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, inWhitmore,Bib. Sketch, xxxi, xxxiii, xxxvii.

[579]These are in the Athenæum copy of theMSS. Records of the County Court of Suffolk, 1671-80. There is also a unique example in theMSS. 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.

[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 alsoWhitmore,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.

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