Chapter 27

[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.[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 seeMSS. Records of the County Court of Middlesex, I, 39; III, 107, 194; IV, 97, 171, 173.[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.[584]MSS. Records of the County Court of Suffolk, 22. There was another sentence of this kind at the same session of this court.[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.[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 seeMSS. 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 inMSS. 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 inMSS. 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.[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) seeibid., 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 theMSS. Early Court Files of Suffolk, No. 3728, compare theMSS. Records of the Superior Court of Judicature, II, 198; and the petition and act regarding appeal inMSS. Mass. Archives, XL, 476, 478, 483.[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.[589]Fornication before marriage (presumably with husband).[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.[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.[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 ofBliss,Colonial Times on Buzzard's Bay, 99-101, 111-14.[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 theLetter from New England(1742), 4, describing the symptoms of "conversion."[594]Adams,op. cit., 28.[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, citingButler,History of Groton, 174, 178, 181;Worthington,History of Dedham, 108, 109; andReport of Boston Record Commission, vi, 93,passim.[596]Adams,op. cit., 31 ff., 34.Judd,History of Hadley(Northampton, 1863), 247, note, mentions Jonathan Edwards's sermon against bundling.[597]Mielziner,The Jewish Law of Marriage and Divorce, 75.[598]Deut. 20:7; 22:22-29.[599]Mielziner,op. cit., 75.[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 (theperuta, 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 Romancoemptio. "The rabbinical formality differs, however, from the Roman in this, that the act is done by the man only;hegives the money or its value, andhespeaks 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 sheistaken; he is the active and she the passive party."—Talm. Kiddushin, 2band 3b;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.[601]Mielziner,The Jewish Law of Marriage and Divorce, 76.[602]Ibid., 77. "Since the third century it was regarded as improper to effect a betrothment without a previous engagement."—Ibid., 77.[603]Mass. Col. Rec., I, 104.[604]Plym. Col. Rec., VII, 101.[605]Ibid., 109.[606]Ibid., 101.[607]For examples seeMSS. 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.[608]Ibid.(1735-36), fol. 243.[609]Case of Danielsv.Bowinet ux.:ibid.(1764-65), fol. 4.[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 seeMSS. 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.[611]Mass. Col. Rec., IV, Part II, 458.[612]Plym. Col. Rec., V, 116.[613]For many proofs of the niggardly economy and exceeding "nearness" of the old New Englander seeBliss,Colonial Times on Buzzard's Bay;Weeden,Ecc. and Soc. Hist. of N. E.; and especially theDiaryandLetter-BookofSamuel Sewall.[614]An example is afforded by thePlym. 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 seeMSS. Early Court Files of Suffolk(1671), No. 1063. In theMSS. 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.[615]Weeden,Ecc. and Soc. Hist. of N. E., I, 413;cf. ibid., I, 420, II, 541 ff.; alsoEarle,Customs and Fashions, 62 ff., 43 ff.[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.[617]Sewall,Diary, in 5Mass. 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 6Mass. Hist. Coll., I, 279-81;Diary, in 5Mass. Hist. Coll., VI, 80.[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.[619]Sewall'sLetter-Book, in 6Mass. Hist. Coll., II, 83, 84 (letter of Jan. 25, 1718, referring to his wife's death in 1717);cf.theDiary, in 5Mass. Hist. Coll., VII, 143, 144.[620]Sewall'sDiary, in 5Mass. Hist. Coll., VII, 165.[621]Ibid., 151, 163, 164.[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 5Mass. Hist. Coll., VII, 164. On March 14 he sends her a copy of theBerlin Jewish Converts,ibid., VII, 177.[623]Ibid., 177 (March 19, 1718), 180.[624]Ibid., 178, 179 (March 26, 1718).[625]Ibid., 182, 187, 188, 189, 190, 199.[626]Ibid., 202 (Nov. 1, 1718).[627]Weeden,Ecc. and Soc. Hist. of N. E., II, 542.[628]Sewall,loc. cit., 205 (Nov. 28, 1718).[629]Ibid., 206, 207 (Nov. 30, 1718).[630]Ibid., 225, 232, 233.[631]Ibid., 255 (May 26, 1720).[632]Letter of Dec. 13, 1720, to Alexander Dummer, inSewall'sLetter-Book, in 6Mass. Hist. Coll., II, 122, 123.[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'sDiary,loc. cit., 267.[634]Ibid., 269.[635]Ibid., 270.[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.[637]Sewall,loc. cit., 272.[638]Ibid., 273, 274.[639]Ibid., 275.[640]Earle,Customs and Fashions of Old New England.[641]Sewall'sDiary,loc. cit., 299 (Jan. 12, 1722), 300.[642]Ibid., 300, 301.[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 Jany. 30thmay 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).[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 seeHowe,The Puritan Republic, chap. v, 111 ff.[645]Shirley, "Early Jurisprudence of New Hamp.,"Procds. New Hamp. Hist. Soc.(1876-84), 307.[646]For these cases seeGoodwin,Pilgrim Republic, 599.[647]Freeman,Hist. of Cape Cod, I, 208.[648]Goodwin,loc. cit.[649]Shurtleff,Top. and Hist. Description of Boston, 51.[650]Goodwin,loc. cit.[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."[652]Morse, inMem. Hist. Bost., IV, 572. TheMSS. 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."[653]Goodwin,loc. cit.See further on Bellingham's marriageHildreth,Hist. of U. S., I, 279;Mem. Hist. Bost., I, 575.[654]Complaints of clandestine marriages may be found in the New Hampshire records: seeProvincial Papers, IV, 832;New Hamp. Hist. Coll., VIII, 117, 118. There is an unsettled case of alleged clandestine marriage in theMSS. Early Court Files of Suffolk(March, 1699-1700), Nos. 4590, 4663.[655]SeeConn. 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.[656]R. I. Col. Rec., I, 187; andStaples,Proceedings of the First Assembly, 47, 48.[657]R. I. Col. Rec., II, 104.[658]Ibid., III, 361, 362; also inRider'sreprint of theLaws and Acts(1705), 44.[659]See the act of 1701:R. I. Col. Rec., III, 435, 436. CompareRider'sLaws and Acts(1705), 50; and his reprint ofCharter and Laws(1719), 12, 13.[660]By 32 H. VIII., cap. 38:Statutes at Large(London, 1763), II, 298;Sewall'sLetter-Book, in 6Mass. Hist. Coll., I, 351-53, 369, 370.[661]"The greatest good the Land got by this Match, was a general leave to marry Cousin Germans, formerly prohibited by theCrown, and hereafter permitted by theCo[=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'sLetter-Book, in 6Mass. Hist. Coll., I, 369. Compare his letter of Feb., 1603/4, inop. cit., 290-93.[662]"They that will, from this Example, be fond of Marrying Cousin-Germans, Let 'em!"—Ibid., II, 19.[663]Ibid.;cf. ibid., I, 290-93, where Sewall opposes the marriage of his cousin John Sewall with thewidowof the latter's cousin german; alsoibid., I, 17; and hisDiary, in 5Mass. Hist. Coll., V, 96, 424, for further illustrations.[664]The Mosaic code does not clearly prohibit marriage with adeceasedwife'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.[665]Whitmore,Col. Laws of Mass.(1672-86), 102;Mass. Col. Rec., IV, Part II, 454.[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, inMem. Hist. Bost., II, 415 n. 2.[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 5Mass. Hist. Coll., V, 407;cf.McKenzie, inMem. Hist. Bost., II, 197.[668]But, on the other hand, marriage with a husband's brother or nephew is not expressly prohibited;cf.5Mass. Hist. Coll., V, 407, note.[669]Acts and Resolves, I, 209; alsoCharters 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 ofHawthorne'sScarlet Letter." It probably originated in the similar law, already mentioned, for the punishment of adultery which is expressed in nearly the same words: seeActs and Resolves, I, 171.[670]5Mass. Hist. Coll., V, 407 n. 1.[671]Historical Magazine and Notes and Queries, II, 301.[672]Sewall'sDiary, in 5Mass. Hist. Coll., V, 354. For the case seeNoble'sRecs. 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.[673]On white slaves in New England, and elsewhere in America, see the valuable article ofButler, "British Convicts Shipped to American Colonies,"American Historical Review, II, 12-33.[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; andBancroft,Hist. of U. S.(New York, 1888), II, 268-80.[675]See his admirableMassachusetts: Its History and Historians(Boston, 1893).[676]CompareMoore'sarticle "Slave Marriages in Mass.," inDawson'sHist. Mag., 2d series, V (Feb., 1869), 135, to which I am much indebted.

[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 seeMSS. Records of the County Court of Middlesex, I, 39; III, 107, 194; IV, 97, 171, 173.

[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.

[584]MSS. Records of the County Court of Suffolk, 22. There was another sentence of this kind at the same session of this court.

[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.

[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 seeMSS. 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 inMSS. 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 inMSS. 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.

[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) seeibid., 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 theMSS. Early Court Files of Suffolk, No. 3728, compare theMSS. Records of the Superior Court of Judicature, II, 198; and the petition and act regarding appeal inMSS. Mass. Archives, XL, 476, 478, 483.

[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) seeibid., 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 theMSS. Early Court Files of Suffolk, No. 3728, compare theMSS. Records of the Superior Court of Judicature, II, 198; and the petition and act regarding appeal inMSS. Mass. Archives, XL, 476, 478, 483.

[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.

[589]Fornication before marriage (presumably with husband).

[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.

[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.

[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 ofBliss,Colonial Times on Buzzard's Bay, 99-101, 111-14.

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 ofBliss,Colonial Times on Buzzard's Bay, 99-101, 111-14.

[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 theLetter from New England(1742), 4, describing the symptoms of "conversion."

[594]Adams,op. cit., 28.

[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, citingButler,History of Groton, 174, 178, 181;Worthington,History of Dedham, 108, 109; andReport of Boston Record Commission, vi, 93,passim.

[596]Adams,op. cit., 31 ff., 34.Judd,History of Hadley(Northampton, 1863), 247, note, mentions Jonathan Edwards's sermon against bundling.

[597]Mielziner,The Jewish Law of Marriage and Divorce, 75.

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

[599]Mielziner,op. cit., 75.

[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 (theperuta, 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 Romancoemptio. "The rabbinical formality differs, however, from the Roman in this, that the act is done by the man only;hegives the money or its value, andhespeaks 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 sheistaken; he is the active and she the passive party."—Talm. Kiddushin, 2band 3b;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.

[601]Mielziner,The Jewish Law of Marriage and Divorce, 76.

[602]Ibid., 77. "Since the third century it was regarded as improper to effect a betrothment without a previous engagement."—Ibid., 77.

[603]Mass. Col. Rec., I, 104.

[604]Plym. Col. Rec., VII, 101.

[605]Ibid., 109.

[606]Ibid., 101.

[607]For examples seeMSS. 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.

[608]Ibid.(1735-36), fol. 243.

[609]Case of Danielsv.Bowinet ux.:ibid.(1764-65), fol. 4.

[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 seeMSS. 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.

[611]Mass. Col. Rec., IV, Part II, 458.

[612]Plym. Col. Rec., V, 116.

[613]For many proofs of the niggardly economy and exceeding "nearness" of the old New Englander seeBliss,Colonial Times on Buzzard's Bay;Weeden,Ecc. and Soc. Hist. of N. E.; and especially theDiaryandLetter-BookofSamuel Sewall.

[614]An example is afforded by thePlym. 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 seeMSS. Early Court Files of Suffolk(1671), No. 1063. In theMSS. 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.

[615]Weeden,Ecc. and Soc. Hist. of N. E., I, 413;cf. ibid., I, 420, II, 541 ff.; alsoEarle,Customs and Fashions, 62 ff., 43 ff.

[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.

[617]Sewall,Diary, in 5Mass. 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 6Mass. Hist. Coll., I, 279-81;Diary, in 5Mass. Hist. Coll., VI, 80.

[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.

[619]Sewall'sLetter-Book, in 6Mass. Hist. Coll., II, 83, 84 (letter of Jan. 25, 1718, referring to his wife's death in 1717);cf.theDiary, in 5Mass. Hist. Coll., VII, 143, 144.

[620]Sewall'sDiary, in 5Mass. Hist. Coll., VII, 165.

[621]Ibid., 151, 163, 164.

[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 5Mass. Hist. Coll., VII, 164. On March 14 he sends her a copy of theBerlin Jewish Converts,ibid., VII, 177.

[623]Ibid., 177 (March 19, 1718), 180.

[624]Ibid., 178, 179 (March 26, 1718).

[625]Ibid., 182, 187, 188, 189, 190, 199.

[626]Ibid., 202 (Nov. 1, 1718).

[627]Weeden,Ecc. and Soc. Hist. of N. E., II, 542.

[628]Sewall,loc. cit., 205 (Nov. 28, 1718).

[629]Ibid., 206, 207 (Nov. 30, 1718).

[630]Ibid., 225, 232, 233.

[631]Ibid., 255 (May 26, 1720).

[632]Letter of Dec. 13, 1720, to Alexander Dummer, inSewall'sLetter-Book, in 6Mass. Hist. Coll., II, 122, 123.

[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'sDiary,loc. cit., 267.

[634]Ibid., 269.

[635]Ibid., 270.

[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.

[637]Sewall,loc. cit., 272.

[638]Ibid., 273, 274.

[639]Ibid., 275.

[640]Earle,Customs and Fashions of Old New England.

[641]Sewall'sDiary,loc. cit., 299 (Jan. 12, 1722), 300.

[642]Ibid., 300, 301.

[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 Jany. 30thmay 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).

[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 seeHowe,The Puritan Republic, chap. v, 111 ff.

[645]Shirley, "Early Jurisprudence of New Hamp.,"Procds. New Hamp. Hist. Soc.(1876-84), 307.

[646]For these cases seeGoodwin,Pilgrim Republic, 599.

[647]Freeman,Hist. of Cape Cod, I, 208.

[648]Goodwin,loc. cit.

[649]Shurtleff,Top. and Hist. Description of Boston, 51.

[650]Goodwin,loc. cit.

[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."

[652]Morse, inMem. Hist. Bost., IV, 572. TheMSS. 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."

[653]Goodwin,loc. cit.See further on Bellingham's marriageHildreth,Hist. of U. S., I, 279;Mem. Hist. Bost., I, 575.

[654]Complaints of clandestine marriages may be found in the New Hampshire records: seeProvincial Papers, IV, 832;New Hamp. Hist. Coll., VIII, 117, 118. There is an unsettled case of alleged clandestine marriage in theMSS. Early Court Files of Suffolk(March, 1699-1700), Nos. 4590, 4663.

[655]SeeConn. 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.

[656]R. I. Col. Rec., I, 187; andStaples,Proceedings of the First Assembly, 47, 48.

[657]R. I. Col. Rec., II, 104.

[658]Ibid., III, 361, 362; also inRider'sreprint of theLaws and Acts(1705), 44.

[659]See the act of 1701:R. I. Col. Rec., III, 435, 436. CompareRider'sLaws and Acts(1705), 50; and his reprint ofCharter and Laws(1719), 12, 13.

[660]By 32 H. VIII., cap. 38:Statutes at Large(London, 1763), II, 298;Sewall'sLetter-Book, in 6Mass. Hist. Coll., I, 351-53, 369, 370.

[661]"The greatest good the Land got by this Match, was a general leave to marry Cousin Germans, formerly prohibited by theCrown, and hereafter permitted by theCo[=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'sLetter-Book, in 6Mass. Hist. Coll., I, 369. Compare his letter of Feb., 1603/4, inop. cit., 290-93.

[662]"They that will, from this Example, be fond of Marrying Cousin-Germans, Let 'em!"—Ibid., II, 19.

[663]Ibid.;cf. ibid., I, 290-93, where Sewall opposes the marriage of his cousin John Sewall with thewidowof the latter's cousin german; alsoibid., I, 17; and hisDiary, in 5Mass. Hist. Coll., V, 96, 424, for further illustrations.

[664]The Mosaic code does not clearly prohibit marriage with adeceasedwife'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.

[665]Whitmore,Col. Laws of Mass.(1672-86), 102;Mass. Col. Rec., IV, Part II, 454.

[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, inMem. Hist. Bost., II, 415 n. 2.

[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 5Mass. Hist. Coll., V, 407;cf.McKenzie, inMem. Hist. Bost., II, 197.

[668]But, on the other hand, marriage with a husband's brother or nephew is not expressly prohibited;cf.5Mass. Hist. Coll., V, 407, note.

[669]Acts and Resolves, I, 209; alsoCharters 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 ofHawthorne'sScarlet Letter." It probably originated in the similar law, already mentioned, for the punishment of adultery which is expressed in nearly the same words: seeActs and Resolves, I, 171.

[670]5Mass. Hist. Coll., V, 407 n. 1.

[671]Historical Magazine and Notes and Queries, II, 301.

[672]Sewall'sDiary, in 5Mass. Hist. Coll., V, 354. For the case seeNoble'sRecs. 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.

[673]On white slaves in New England, and elsewhere in America, see the valuable article ofButler, "British Convicts Shipped to American Colonies,"American Historical Review, II, 12-33.

[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; andBancroft,Hist. of U. S.(New York, 1888), II, 268-80.

[675]See his admirableMassachusetts: Its History and Historians(Boston, 1893).

[676]CompareMoore'sarticle "Slave Marriages in Mass.," inDawson'sHist. Mag., 2d series, V (Feb., 1869), 135, to which I am much indebted.

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