"It is true anold(or super-annuated) maid in Boston is thought such a curse as nothing can exceed it (and look'dupon as adismal spectacle); yet she, by her good-nature, gravity, and strict virtue, convinces all (so much as the fleering Beaus) that it is not her necessity, but her choice, that keeps her a Virgin. She is now about thirty years (the age which they call aThornback), yet she never disguises herself, and talks as little as she thinks of Love. She never reads any Plays or Romances, goes to no Balls, or Dancing-match, as they do who go (to such Fairs) in order to meet with Chapmen. Her looks, her speech, her whole behaviour, are so very chaste, that but once (at Governor's Island, where we went to be merry at roasting a hog) going to kiss her, I thought she would have blushed to death."[473]But bachelors and "thornbacks" were not the only people who caused the lawmaker anxiety. He kept a sharp eye on married persons living away from their mates. An act of the Massachusetts general court, in 1647, after reciting that diverse married persons are living in the jurisdiction, whose wives or husbands are in England or elsewhere, and who are guilty of making love to women, of attempting marriage or even attaining it, or are under "suspition of uncleannes"—the vice which seems to have sorely vexed the good people of those days—and all of whom are a great dishonor to God and a reproof to religion, commonwealth, and church—orders that every such person shall be incontinently sent back "by yefirst oportunity of shiping," unless present on transient business or to "make way" for the family to come over.[474]Such complaints were by no means groundless and the courts were often called upon to execute the law. Under the circumstances bigamy was easily committed, though notalways permanently concealed. On December 3, 1639, the pretended marriage of James Luxford was declared void; "all that hee hath" was given to his victim; and he himself was fined, set in the stocks, and ordered "sent away to England by the first opportunity."[475]In 1644 the "marriage of John Richardson to Elizabeth Frier was annulled upon proof that he had a former wife living in England."[476]Henry Jackson—whose case seems to justify the act of 1647—was presented in 1672-73 "for lying, in saying he was single and attempting marriage with several," though since confessing that he has a wife beyond the sea; "for living from under family government; and for carrying a fire brand at night near a hay stack;" on all of which counts, we are prepared to hear, he got twenty stripes, had to pay costs, and was ordered away to "England by the next ship."[477]More numerous are the cases of "living apart." For example in 1637 the general court decreed that Isaac Davies should be sent home to his wife in England.[478]Three years later "Willi Wake" in like manner was advised to seek his consort.[479]Edward Iron in 1651 "upon promise to take some effectual course to send for his wife now in England" was "granted liberty to abide in the country until the next return of ships." Should his attempt fail, then he was "ordered to depart out of this jurisdiction by the next opportunity."[480]For similar absence from his spouse James Underwood in 1654 was fined at Salem.[481]In 1663 for the same offense Christopher Blake was presented by the grand jury of Suffolk, although in his petition he avers that forthree years he had "been desirous of getting his wife across but she refused to come;" and that he had never "presented himself as a single man, but always openly manifested the true state of his condition." Accordingly the general court ordered the prosecution "stayed for a year."[482]In 1671 Paul Hall, presented in the same county, "appeared and declared he was informed his wife was dead." The court, being skeptical, commanded him to "repair to the last place of her abode or bring in a certificate of her death."[483]Delinquent wives were looked after with equal vigilance. In 1668 the constable of Boston is ordered to summon "before the county court two women and one man for living apart from their spouses contrary to law."[484]A presentment of Sarah Pickering failed in 1674 because she produced evidence that her husband had renounced her.[485]Even when both partners were in the jurisdiction the law was not less harshly administered. On June 17, 1672, for "disorderly living apart," Michael Smith and wife, "inhabitants of Charlestoun" were "admonished and ordered to pay costs."[486]The case of "Abr. Hagborne" in 1663 is more remarkable. Although he had come to the colony twenty-two years before; had lived contentedly with his wife for fourteen or fifteen years until she "did depart" for England; had sent for her to return home and provided for her transportation, "whereby the innocence of Living Apart is on your peticoners part;" and "had no idea the law against living apart would apply to the known settled inhabitants, brethren and freemen whose wives unnaturally desert them;" yet the county court "was pleased to require him to depart the Countrie &to repayre vnto his wife." So he "humbly petitions" the general court that he may not be compelled to return to England and that he may "not be put vpon [religious] temptacoñs or aboue his strength or any kind of iniun[~cc]on [injunction] of going to Serue other Gods;" but may be "allowed to continue his Abode here ... vnder the Shadow of that happie Gouernment in Co[=m]onwealth and Churches ... those few days of his pilgrimage that remayne." A gracious answer, it is perhaps needless to add, was the meet reward of so just and so skilful a prayer.[487]In like spirit single women and wives in the absence of their husbands were forbidden to "lodge any inmate or sojourner," except with the approval of the selectmen or other magistrates.[488]Of course, these were pioneer days. The peace of the settlements was probably disturbed by loose and riotous adventurers, outcasts from the society of the Old World. Doubtless these measures, aside from religious motives, were in some degree useful police ordinances; as were also those prohibiting the husband from beating his wife, and the wife from striking her spouse.[489]But the colonists went farther and prescribed the death penalty for disobedience to parents, following the precepts of the Mosaic law.[490]Furthermore, they attempted to regulate courtship by statute, in a way which, however wholesome, would scarcely be relished by the young men and maidens of our generation. Thus the general court of Plymouth prohibits "any motion of marriage to any man's daughter or mayde servant" without having "first obtayned leaue" of the parents or master under penalty of fine and corporal punishment in the discretion of the bench. But appeal is allowed to the magistrate, when the master "through any sinister end or couetous desire," witholds his consent.[491]The courts were not wholly without business growing out of this legislation, as appears from illustrations collected by Mr. Goodwin. "In 1652 Jonathan Coventry was indicted for 'making a motion of marriage' to Katherine Bradbury, servant to Mr. Bourne, of Marshfield, without the latter's consent.[492]Coventry left the Colony before arrest.... In 1648 Thomas Dunham was ordered to abstain from visiting or sending to Martha Knott, of Sandwich, from October 4 till the first Tuesday of December, that the Court may betterlearn of his pretended contract, unless the Governor, on the clearing of things, give him leave. A romantic case was that of Governor Thomas Prence against Arthur Howland, Jr., nephew of the Pilgrim.[493]The tolerant course of the elder Arthur Howland toward the Quakers had earned Prence's hearty ill-will; and when, in 1660, he found that Arthur, Jr., had wooed his daughter Elizabeth, he had the swain before the General Court, where he was fined £5 for making love without her father's permission. The couple remained constant, for in 1667 the irate Governor once more brought up young Arthur, who was again fined £5 because he had 'disorderly and unrighteously endeavored to obtain the affections of Mistress Elizabeth Prence,' and was put under bond of £50 to 'refrain and desist.' But Prence, like Canute, was unable to control the forces of Nature. This action was in July; but before the next spring the imperious Governor seemed to have been forced to capitulate, for Arthur and Elizabeth were united."[494]On the other hand, the right of a lover to appeal to the magistrate, in case his "motion" were hindered through "sinister end or couetous desire," was occasionally of practical value. In 1646, for instance, Richard Taylor complained to the general court of Plymouth that he was prevented from marrying Ruth Wheildon by her father Gabriel; but when before the court Gabriel yielded and promised no longer to oppose the marriage.[495]The records show that parents might be held accountable for "miscarriages" resulting from unreasonable opposition.[496]To the close of the colonial era a law of Connecticut provided that "if any Man shall directly or indirectly endeavour to draw away the affections of any Maid ... , on pretence of Marriage, before he hath obtained Liberty and Allowance" from her parent, governor, or guardian, should there be any, "he shall forfeit the sum ofFive Poundsto the Party grieved; double that amount for the second offence; and for a third transgression suffer imprisonment, besides paying the costs of prosecution."[497]An elaborate statute of New Haven, for the regulation of proposals, provides "that whosoever within this jurisdiction shall attempt, or endeavor to inveagle, or draw the affections of any maide, or maide-servant, whether daughter, kinswoman, or in other relation, for himself, or for any other person, without the consent of father, master, governor, or such other, who hath the present interest, or charge, or (in absence of such) of the nearest magistrate, whether it be by speech, writing, message, company-keeping, unnecessary familiarity, disorderly night meetings, sinful dalliance, gifts, or any other way, directly or indirectly, every such person (besides all damages which the parent, governor, or person intrusted or interested, may sustain by such unlawful proceedings) shall pay to the plantation forty shillings for the first offence; and for the second offence towards the same party four pounds; and for the third offence he shal be further fined, imprisoned, or corporally punished, as the plantation court, or court of magistrates considering all circumstances, shal determine."[498]The foregoing act was probably suggested by the Massachusetts law of 1647, which is likewise here presented. Itis declared that, "whereas God hath committed the care and power into the hands of parents for the disposing their Children in Marriage, so that it is against rule, to seek to draw away the affections of young maidens under pretence of purpose of marriage, before their parents have given way and allowance in that respect; and whereas it is common practise in divers places for young men irregularly and disorderly to watch all advantages for their evil purposes, to insinuate into the affections of young Maidens by coming to them in places and seasons unknown to their parents for such ends, whereby much evil hath grown amongst us, to the dishonour of God and damage of parties; for prevention whereof for time to come. It is further Ordered, that whatsoever person from henceforth shall endeavour, directly or indirectly, to draw away the affection of any mayd in this jurisdiction, under pretence of marriage, before he hath obtained liberty and allowance from her parents or Governors or in absence of such of the nearest magistrate, he shall forfeit for the first offence five pounds, for the second towards the partie ten pounds, and be bound to forbeare any further attempt and proceedings in that unlawful designe, without or against the allowance aforesayd. And for the third offence upon information or complaint by such parents or Governors to any Magistrate, giving bond to prosecute the party, he shall be committed in prison, and upon hearing and conviction by the next court, shal be adjudged to continue in prison, untill the Court of Assistants shall see cause to release him."[499]The courts were not without employment under this statute. In 1658 Paul Wilson appeared before the county court of Middlesex, sitting in Charlestown, "to answer the complaint of Deacon Upham for violent soliciting hisdaughter against his will." Whereupon the tribunal "admonished Wilson of his evil behavior towards the said Upham and his daughter Priscilla, and ordered him to give bond of ten pounds for his regular behavior towards the said parties." Accordingly the culprit gave bond "yt he will no more frequent the company of Priscilla Upham, nor by no means whether direct or indirect, make any more addresses vnto her without her fathers leave first orderly had & obteined."[500]For a similar offense, in 1672, the county court of Suffolk fined Benjamin Scott five pounds.[501]Two years later, before the same tribunal, Thomas Irons was presented "for procuring Richard Barnum to publish a marriage" between himself and Mary Arnold without her father's leave;[502]while the next February, as we learn from the record, John Lorin stood "convict on his own confession of making love to Mary Willis without her parents consent and after being forwarned by them, £5."[503]Although parents might be prosecuted for "unreasonably denying any child timely or convenient marriage,"[504]it is evident that lovers had to be very circumspect in old colonial days. In a community where power to dispose of a son or daughter in wedlock was believed to be the gift of heaven,it is not strange that "allowance" was sometimes hard to gain. Praising the chaste reserve of the gentle "old maid" of Boston whom he had learned to admire, John Dunton thus expresses the dominant view: "I am sure this is most agreeable to theVirgin modesty, which should make Marriage an act" rather of "obedience" than "choice." "And they that think their Friends tooslowpacedin the matter give certain proof that lust is the sole motive."[505]Nor was the average New England house-father at all likely to allow sentiment to get the better of prudence in seeking a match for his child. He was more apt to be governed by a spirit of cold calculation which never for an instant lost sight of the "main chance." Judge Sewall, for example, can hardly be called "slowpaced" in providing his daughters with wooers. He superintends the whole "business" of love-making with never-flagging zeal. Poor, timid daughter Betty is fairly worried into matrimony, perhaps as the only sure way of escaping her father's nagging. What a procession of "captains" and "persons of worth" he parades before the reluctant girl before he succeeds in gaining his will! The first who "wished to speak with her" is Captain Tuthill, who appears as a suitor when she is but seventeen years of age. After the judge had made careful and satisfactory inquiry as to the captain's estate—which he finds valued at £600 or £700—and the young man "in good Business, and like to be in better;"[506]and after having his daughter read to him about the courtship of Adam and Eve "as a soothing and alluring preparation for the thought of matrimony,"[507]the lover is invited to call. Of this visit and its surprising result Sewall thus writes in hisDiary: "At night Capt. Tuthill comes to speak with Betty, who hid her self all alone in the coachfor several hours till he was gon, so that we sought at several houses, till at last came in of her self, and look'd very wild."[508]A number of others in rapid succession have little better luck with the coy maiden. The next fall, however, on returning from a journey to Rhode Island, the judge finds his "family in health, only disturb'd at Betty's denying Mr. Hirst." A month later he sadly records that he supposes even this suitor has "taken his final leave."[509]Nevertheless two days after, on October 26, 1699, he addresses Betty at "Brantry," where she had gone on a visit, the following characteristic letter:"Mr. Hirst waits upon you once more to see if you can bid him welcome. It ought to be seriously considered, that your drawing back from him after all that has passed between you, will be to your Prejudice; and will tend to discourage persons of worth from making their Court to you. And you had need well to consider whether you are able to bear his final Leaving of you, howsoever it may seem gratefull to you at present. When persons come toward us, we are apt to look upon their Undesirable Circumstances mostly; and therefore to shun them. But when persons retire from us for good and all, we are in danger of looking only on that which is desirable in them to our wofull Disquiet. Whereas 'tis the property of a good Balance to turn where the most weight is, though there be some also in the other Scale. I do not see but that the Match is well liked by judicious persons, and such as are your Cordial Friends, and mine also."Yet notwithstanding, if you find in yourself an i[=m]ovable, incurable Aversion from him, and ca[=n]ot love, and honour, and obey him, I shall say no more, nor give you any further trouble in this matter. It had better be off than on. So praying God to pardon us, and pity our Undeserving, and to direct and strengthen and settle you in making a right Judgment,and giving a right Answer, I take leave, who am, dear child, your loving father. Your mother remembers to you."[510]Either this letter had the desired influence or Betty was unable to endure the "wofull disquiet" of a "final leaving;" for a year later it stands written that "Mr. Grove Hirst and Elizabeth Sewall are married by Mr. Cotton Mather."[511]IV. PRE-CONTRACTS, BUNDLING, AND SEXUAL IMMORALITYThe colonists were extremely anxious to restrain vice by legislation. The whole field of private morals was brought under the purview of the magistrate. Unchastity and sexual crimes, especially, they were determined to prevent at all hazards; and, in consequence, the early colonial and court records are far from pleasant reading. Conjugal infidelity is especially abhorred by the lawmaker. Originally, in all the New England colonies save Rhode Island and Plymouth, death was the penalty prescribed for adultery with a "married or espoused wife." In the New World the Puritan thus actually realized what Luther, Hooper, and other Reformation Fathers ardently desired as an ideal fulfilment of the Mosaic code.[512]The capital law of Massachusetts, at any rate, was not a dead letter, as is clearly shown by the records of the early period. The only attempt to put in force the original act of 1631 was, indeed, a failure. It appears that in 1637 two men and one woman were convicted;but on the ground that the statute had been "made by the court of assistants by allowance of the general court," and for fear lest it had not been "sufficiently published," the extreme penalty was not administered. Instead the culprits were whipped and then banished on pain of death should they return.[513]The act of 1631 was, however, at once confirmed,[514]and it remained in force until superseded by the "Body of Liberties," whose provision on this point was not abrogated during the period of the colonial charter. Under the law as thus constituted two persons were condemned and executed in 1644.[515]Further, in hisMagnaliaCotton Mather mentions the execution of an adulterer from Weymouth.[516]These are the only cases of capital punishment for this offense yet discovered; but a number of persons narrowly escaped it, where the evidence seems sufficient to warrant the death penalty. Apparently the courts shrank from pronouncing sentence according to the full rigor of the law,[517]satisfying themselves with lesser punishments, such as imprisonment, banishment,[518]or whipping.In Plymouth the death penalty for adultery seems never to have been established.[519]Instead, the "scarlet letter," a punishment even more terrible to bear, was there adopted as a permanent badge earlier than in any other colony; while in England it appears never to have been so employed for any crime.[520]So far as known, the oldest typical case of bearing such a "stigma" continuously for adultery occurredin 1639. In that year a woman was sentenced to be "whipt at a cart tayle" through the streets, and to "weare a badge vpon her left sleeue during her aboad" within the government. If found at any time abroad without the badge, she was to be "burned in the face wtha hott iron."[521]Two years later a man and a woman for the same offense were severely whipped "at the publik post" and condemned while in the colony to wear the lettersAD"vpon the outeside of their vppermost garment, in the most emenent place thereof."[522]So the custom was already developed in judicial practice when the oldest statute providing for the "scarlet letter" appeared in 1658. It was then enacted "that whosoeuer shall comitt Adultery shalbee seuerly punished by whiping two seuerall times; viz: once whiles the Court is in being att which they are convicted of the fact and 2condtime as the Court shall order; and likewise to weare two Capital letters ziz; AD cut out in cloth and sewed on theire vpermost Garments on theire arme or backe; and if at any time they shalbee taken without the said letters whiles they are in the Gourment soe worn to bee forth with taken and publickly whipt."[523]The Plymouth statute was copied into the Cutt Code for New Hampshire in 1679-80.[524]By the act of 1701, taken from the Massachusetts law of 1694, the initial letter is still prescribed;[525]and down to its repeal in 1792 the law was frequently enforced by the courts.[526]It is an evidence of the more humane tendency of Rhode Island legislation that neither death nor the scarlet badge seems ever to have been prescribed for adultery, althoughthe offense was otherwise harshly punished. The culprit is to be "publickly set on the Gallows in the Day Time, with a Rope about his or her Neck, for the Space of One Hour; and on his or her Return from the Gallows to the Gaol, shall be publickly whipped on his or her naked Back, not exceeding Thirty Stripes; and shall stand committed to the Gaol of the County wherein convicted, until he or she shall pay all Costs of Prosecution."[527]In Connecticut a brand appears to have superseded the death penalty at least by 1673, as shown in the code of that year. The provision of this code is retained almost exactly in the compilation of 1769, requiring "that whosoever shall commit adultery with a Married Woman or one Betrothed to another Man, both of them shall be severely Punished, by Whipping on the naked Body, and Stigmatized or Burnt on the Forehead with the LetterA, on a hot Iron: And each of them shall wear a Halter about their Necks, on the outside of their Garments, during their Abode in this Colony, so as it may be Visible: And as often as either of them shall be found without their Halters, worn as aforesaid, they shall, upon Information, and Proof of the same, made before an Assistant or Justice of the Peace, ... be Whipt, not exceeding Twenty Stripes."[528]As a detail of interest it may be observed that nowhere save in Connecticut is the continuous wearing of a halter provided for by statute; although for offenses other than adultery several decisions show that during the seventeenth century this punishment was employed in the Bay Colony.[529]Furthermore, in Connecticut, as will hereafter appear, the law of incest differs from that of adultery in not requiring a rope to be so worn.The statute of Massachusetts prescribing the death penalty for adultery did not survive the fall of the charter. So in 1794 the scarlet letter was substituted.[530]The act published on June 20 of that year, and remaining in force until after the close of the provincial era, varies in several important details, though not essentially, from the laws of Plymouth and Connecticut already presented. The offenders "shall be set upon the gallows by the space of an hour, with a rope about their neck, and the other end cast over the gallows; and in the way from thence to the common goal shall be severely whip'd, not exceeding forty stripes each." Also the offenders "shall forever wear a capital A, of two inches long and proportionate bigness, cut out in cloth of a contrary color to their cloaths, and sewed upon their upper garments, on the outside of the arm, or on their back, in open view." If "found without their letters so worn, during their abode in this province, they shall, by warrant from a justice of peace, be forthwith apprehended and ordered to be publicly whip'd,not exceeding fifteen stripes, and so from time to time,toties quoties."[531]Apparently writers have thus far failed to discover positive evidence that the provision of this act regarding the capital letter was ever carried out. A search in the manuscript records of the superior court of judicature, however, has disclosed several interesting cases. The earliest sentence occurred in March, 1707, when Mathew Fuller and Hannah Parker were indicted before a superior court at Plymouth. In the exact terms of the statute Hannah was sentenced to be set on the gallows, receive thirty stripes upon her naked back, and forever after to wear the capitalA. But, singularly enough, her paramour was acquitted, no reason being assigned therefor either in the court record or in the files.[532]Again in 1721 Jemima Colefix, for sinning with a free negro and bearing a mulatto child, received a similar sentence; and in this case also the accused man was acquitted of being the putative father as had been charged.[533]The next case is dated February 9, 1730-31; and it shows that men as well as women had to endure this penalty. Before a court held in Boston "the jurors present John Warren, miller, and Rachel Gould for adultery," both being married persons. Although they pleaded not guilty, they were each set on the gallows, given thirty-nine stripes, and condemned to wear the capitalletter.[534]Twenty years later, on September 26, 1752, "Daniel Bayley, cooper, and Mary Rainer" received the same punishment, except that they each suffered forty stripes, the full number allowed by the statute.[535]Finally after the lapse of thirty years more, just as the War of Independence was drawing to a close, we learn from the records that, following the usual stripes and exposure on the scaffold, Jerusha Doolittle was condemned to wear the fatalAas a badge of shame "forever."[536]This closes the list of cases found in which the stigma is referred to. On the other hand, there are a number of sentences for adultery, or for what would ordinarily be so regarded, where this penalty is not imposed. These are the cases of semi-adulterous conduct, nominally provided for by the act of 1694, in which there is either no charge or not sufficient evidence of absolute transgression.[537]Usually oneand sometimes both of the culprits are married. Fines, stripes, and occasionally banishment are the penalties imposed. As in the early period, there is manifestly a hesitation to urge conviction for "adultery" so as to involve the extreme penalty of the scarlet letter. The courts thus seem to favor a strict construction of the statute, giving the accused the benefit of the more lenient interpretation. In several cases the jury declines to convict for the offense charged where the evidence would clearly seem enough to sustain a verdict.[538]Throughout New England, Rhode Island alone excepted, persons guilty of incest—that is to say, of uniting within the degrees of consanguinity or affinity legally forbidden—were stigmatized with an initial letter precisely as in the case of adultery. An act of Massachusetts in 1692, "for the punishing of capital offenders," makes this offense a felony punishable with death.[539]Because some of the "articles" dealing with capital crimes, among which is incest, "were conceived in very uncertain and doubtful terms," and because in such cases the penalty of death was not "conformable to yeLaws of England," the act was disallowed by the privy council in August, 1695.[540]However, in June of the same year a new act for the prevention of incestuousmarriages had been adopted by the general court; and this remained in force during the provincial era. By it the forbidden degrees are enumerated in harmony with the English ecclesiastical law. For violation of its provision exactly the same penalty in the same words is imposed as by the statute of 1694 for the punishment of adultery, except that in place ofAa capitalIis to be continuously worn.[541]This act of 1695 was adopted by New Hampshire in 1714,[542]and by Connecticut in 1702, the provision regarding the initial letter reappearing in the statute books of the latter commonwealth until 1821.[543]In Massachusetts the legal stigma for incest was often imposed by judicial sentence. As already noticed by Davis, such a sentence in 1743 was executed upon Andrew Fleming, of Groton, who had first been set on the gallows for an hour and whipped forty stripes.[544]Hitherto no other examples of wearing the capitalIseem to have been discovered. But a careful search in the manuscript records of the superior court for the period ending in 1780 has brought to light five additional cases. The first of these occurred in 1729 and the last in 1759. In every instance the culprit is punished with rope and gallows, stripes, and the scarlet letter.[545]The New England Puritans were, of course, very serious in their efforts to check sexual immorality. Their laws are characteristic of the age. As yet small progress had been made in enlightened theories of crime and its punishment. Besides they were steeped to the core in Hebraism. More or less as a religious duty they accepted and re-enacted the harsh precepts of the primitive Jewish code. It is not a little curious, however, to see them preserving an ancient English usage, almost extinct in the mother-country—in some instances regulating it by statute—which "thwarted their endeavors for complete propriety."[546]This was the custom of pre-contract, contraction, or betrothal, which everywhere in New England was celebrated with due solemnity. Such was the case in Massachusetts.[547]By the Connecticut statute, as already noted, the "contract" was carefully distinguished from the "covenant;" and because many persons entangle themselves by rash and inconsiderate promises for their future joining in marriage, the act of 1640 requires eight days' public notice of the betrothal, after which a second period of eight days must elapse before the covenant is sealed.[548]The pre-contract was in use also in New Hampshire[549]and Plymouth. In the latter jurisdiction the "couple—having the consent of the parents or guardians, in the case of minors—made before two witnesses a solemn promise of marriage in due time, the ceremony having the formality of the magisterial weddings then in vogue."[550]Undoubtedly pre-contract was derived from the English "espousals," which, it has already appeared, were a direct survival of thebeweddungof the Anglo-Saxon laws. But in New England the betrothal gained a peculiar legal significance. "The betrothed woman was put, both by law and social custom, one step above the woman who was not betrothed, and one step below the woman who was married. This was so both as respects the civil and the criminal law."[551]In Massachusetts, Connecticut, and New Haven the "espoused wife" like the married wife is to suffer death for adultery;[552]while for fornication, on the other hand, the single woman and her partner in guilt are much less severely punished. The betrothed woman "was sentenced to wear the brand of the 'scarlet letter,' precisely as if she were married."[553]Thus in New England the betrothal regained a sanction similar to that which it possessed according to primitive Germanic custom. It was, in fact, a kind of marriage. The espoused couple were separated from the world and placed in a relation whose sacredness might not be violated as respects others without the most serious consequences. On the other hand, it was entirely in harmony with this theory that when they "were guilty of incontinence with each other after pre-contract before marriage, their punishment was in general one half, or less than one half, what it would have been had there been no betrothment."[554]By the statute of Plymouth, for example, thepenalty in such cases was fifty shillings for each person and imprisonment for a period not exceeding three days, or if the guilty persons "will not or cannot" pay the fine, they are to suffer "corporal punishment by whipping" instead; while for transgression before contract the fine was twice as much.[555]This was, in effect, to place a premium[556]upon wrongdoing committed between the espousals and the nuptials. Naturally the immorality of such offenses seemed thus to be lessened; and, as will presently appear, a vast amount of sexual license was the natural result.The evil consequences of this anomalous state of the law were rendered all the more serious through the custom of "bundling" which obtained a wide prevalence in New England as it did also in New York and the other middle colonies. According to Stiles, who has produced the only general history of the subject, bundling "was practiced in two forms; first, betweenstrangers, as a simple domestic makeshift arrangement, often arising from the necessities of a new country, and by no means peculiar to America; and, secondly betweenlovers, who shared the same couch, with the mutual understanding that innocent endearments should not be exceeded."[557]It is the second form with which we arehere most concerned; and in its origin this likewise appears to have been "a custom of convenience." It was long regarded as a gross or licentious practice peculiar to New England. Thus Irving taunts the people of Connecticut with having tried to deprave the manners of the "Dutch lasses of the Nederlandts" through the introduction of that "horrible" usage.[558]But the Dutch maidens needed no lessons from their Yankee sisters in this regard; for in their "queesting" they had brought with them a form of bundling from Holland.[559]Indeed, it is not at all improbable that in this case Pilgrim and Puritan alike may have been strongly influenced by Dutch precedent, as they certainly were in more important institutions. Such an inference seems all the more justifiable, for as yet no trace of bundling has been reported "in any localities of England itself, the mother country;"[560]though in Ireland, Scotland, and Wales evidences of its recent existence are not wanting,[561]and the custom seems clearly to be deeply planted in the ancient usage of the German race.[562]In New England, however, it was by no means confined to Connecticut.[563]It prevailed in the sister-provinces, and especially in both western[564]and eastern Massachusetts, down to the revolutionary period and perhaps for a good many years to come. Burnaby,[565]writing of his visit to that colony in 1759-60, gives a lively account of the custom, under the name of "tarrying," significantly observing that it takes place between the permission to pay court and the banns. In his view, bundling is on the whole an innocent practice, seldom being attended by evil consequences. On the other hand, that veracious historian, Rev. Samuel Peters, reproves Burnaby for presenting the custom in "an unfavorable light, and as prevailing among thelower classof people;" whereas, according to Peters, it exists among "all classes, tothe great honor of the country, its religion and ladies."[566]Again in 1777 Lieutenant Anbury, "a British officer, who served in America during the Revolutionary War, and whose letters preserve many sprightly and interesting pictures of the manners and customs of that period,"[567]chats racily of an invitation to bundle which he received at Williamstown, Mass.—a courtesy brought about through the scarcity of beds for the entertainment of strangers.[568]Charles Francis Adams finds positive proof of the existence of the custom "within a ten-mile radius of Boston" at least until 1781;[569]and he also quotes a reference to it from a letter of Abigail Adams written three years later.[570]Nor apparently was bundling entirely abandoned in eastern Massachusetts until nearly fifty years thereafter, Cape Cod having the "dubious honor" of holding out against the "advance of civilization" in this regard until 1827.[571]The next year, inFranklin county, Me., a letter to the PortlandYankeereveals the custom existing in full vigor.[572]According to the judgment of Stiles, bundling "came nearest to being a universal custom from 1750 to 1780." Contrary to the popular view,[573]it appears to have been confined to the more humble and less cultivated classes; "to those whose limited means compelled them to economize strictly in their expenditure of firewood and candle-light."[574]No evidence has yet been produced showing that it made its appearance in the main centers of New England civilization.Though bundling could arise only in a comparatively rude state of society, it seems in itself to have been neither very vicious nor very immoral. Yet manifestly it was easily capable of abuse. Under dangerous conditions it might readily degenerate into coarseness and vice. Such conditions were not wanting throughout the colonial era. The general tone of sexual morality was not high. The laws and usages already presented, which in effect invited transgression on the part of engaged lovers, afforded a constant temptation.[575]Bundling thus has its chief moral significance as an adjunctof pre-contract which must be held responsible for a very large share of the sexual misconduct revealed in the judicial records. Before the general court of Plymouth the cases of "uncleanness" after contract and before marriage are very numerous. According to Goodwin, they averaged one a year; and this appears to be a conservative estimate. By actual count the records of that colony, for the twenty-eight years between 1633 and 1661, show at least twenty-four sentences for ante-nuptial offenses, chiefly after betrothal; while during the seventeen years following 1661 there are not less than forty-one such judgments. Members of some of the most illustrious families of New England were guilty of indiscretions in this regard.[576]In several of the early cases the husband was publicly whipped in view of the wife, who sat near in the stocks.[577]The manuscript records of two counties of Massachusetts for a portion of the seventeenth century appear to demonstrate that such "miscarriages" before complete wedlock were not less frequent in the Bay Colony.[578]A thoroughanalysis of the records of the county court of Suffolk, covering the ten years 1671-80, brings to light twenty of these cases, while during the same period there are forty-three instances of transgression by "single women."[579]Now, it is important to remember that the statutes of Massachusetts, unlike those of Plymouth, do not discriminate between the offenses of single persons and those committed with each other by espoused lovers.[580]The question therefore arises as to whether thecustomof pre-contract—for pre-contract was not established bylawin that province—can be held in any way accountable for these facts. A comparison of the penalties imposed in the two classes of cases, as exhibited in Tables I and II, shows that an affirmative answer must be given. The sins of betrothed persons are in general punished with far less rigor than those of single men and women. Thus twenty-one out of forty-three single women, and eight out of thirteen single men, are sentenced to stripes alone, nineteen of them receiving each from fifteen to forty lashes;TABLE ICases of Fornication before Marriage in the County Court of Suffolk County, Mass., 1671-80
"It is true anold(or super-annuated) maid in Boston is thought such a curse as nothing can exceed it (and look'dupon as adismal spectacle); yet she, by her good-nature, gravity, and strict virtue, convinces all (so much as the fleering Beaus) that it is not her necessity, but her choice, that keeps her a Virgin. She is now about thirty years (the age which they call aThornback), yet she never disguises herself, and talks as little as she thinks of Love. She never reads any Plays or Romances, goes to no Balls, or Dancing-match, as they do who go (to such Fairs) in order to meet with Chapmen. Her looks, her speech, her whole behaviour, are so very chaste, that but once (at Governor's Island, where we went to be merry at roasting a hog) going to kiss her, I thought she would have blushed to death."[473]
But bachelors and "thornbacks" were not the only people who caused the lawmaker anxiety. He kept a sharp eye on married persons living away from their mates. An act of the Massachusetts general court, in 1647, after reciting that diverse married persons are living in the jurisdiction, whose wives or husbands are in England or elsewhere, and who are guilty of making love to women, of attempting marriage or even attaining it, or are under "suspition of uncleannes"—the vice which seems to have sorely vexed the good people of those days—and all of whom are a great dishonor to God and a reproof to religion, commonwealth, and church—orders that every such person shall be incontinently sent back "by yefirst oportunity of shiping," unless present on transient business or to "make way" for the family to come over.[474]Such complaints were by no means groundless and the courts were often called upon to execute the law. Under the circumstances bigamy was easily committed, though notalways permanently concealed. On December 3, 1639, the pretended marriage of James Luxford was declared void; "all that hee hath" was given to his victim; and he himself was fined, set in the stocks, and ordered "sent away to England by the first opportunity."[475]In 1644 the "marriage of John Richardson to Elizabeth Frier was annulled upon proof that he had a former wife living in England."[476]Henry Jackson—whose case seems to justify the act of 1647—was presented in 1672-73 "for lying, in saying he was single and attempting marriage with several," though since confessing that he has a wife beyond the sea; "for living from under family government; and for carrying a fire brand at night near a hay stack;" on all of which counts, we are prepared to hear, he got twenty stripes, had to pay costs, and was ordered away to "England by the next ship."[477]
More numerous are the cases of "living apart." For example in 1637 the general court decreed that Isaac Davies should be sent home to his wife in England.[478]Three years later "Willi Wake" in like manner was advised to seek his consort.[479]Edward Iron in 1651 "upon promise to take some effectual course to send for his wife now in England" was "granted liberty to abide in the country until the next return of ships." Should his attempt fail, then he was "ordered to depart out of this jurisdiction by the next opportunity."[480]For similar absence from his spouse James Underwood in 1654 was fined at Salem.[481]In 1663 for the same offense Christopher Blake was presented by the grand jury of Suffolk, although in his petition he avers that forthree years he had "been desirous of getting his wife across but she refused to come;" and that he had never "presented himself as a single man, but always openly manifested the true state of his condition." Accordingly the general court ordered the prosecution "stayed for a year."[482]In 1671 Paul Hall, presented in the same county, "appeared and declared he was informed his wife was dead." The court, being skeptical, commanded him to "repair to the last place of her abode or bring in a certificate of her death."[483]Delinquent wives were looked after with equal vigilance. In 1668 the constable of Boston is ordered to summon "before the county court two women and one man for living apart from their spouses contrary to law."[484]A presentment of Sarah Pickering failed in 1674 because she produced evidence that her husband had renounced her.[485]Even when both partners were in the jurisdiction the law was not less harshly administered. On June 17, 1672, for "disorderly living apart," Michael Smith and wife, "inhabitants of Charlestoun" were "admonished and ordered to pay costs."[486]The case of "Abr. Hagborne" in 1663 is more remarkable. Although he had come to the colony twenty-two years before; had lived contentedly with his wife for fourteen or fifteen years until she "did depart" for England; had sent for her to return home and provided for her transportation, "whereby the innocence of Living Apart is on your peticoners part;" and "had no idea the law against living apart would apply to the known settled inhabitants, brethren and freemen whose wives unnaturally desert them;" yet the county court "was pleased to require him to depart the Countrie &to repayre vnto his wife." So he "humbly petitions" the general court that he may not be compelled to return to England and that he may "not be put vpon [religious] temptacoñs or aboue his strength or any kind of iniun[~cc]on [injunction] of going to Serue other Gods;" but may be "allowed to continue his Abode here ... vnder the Shadow of that happie Gouernment in Co[=m]onwealth and Churches ... those few days of his pilgrimage that remayne." A gracious answer, it is perhaps needless to add, was the meet reward of so just and so skilful a prayer.[487]
In like spirit single women and wives in the absence of their husbands were forbidden to "lodge any inmate or sojourner," except with the approval of the selectmen or other magistrates.[488]Of course, these were pioneer days. The peace of the settlements was probably disturbed by loose and riotous adventurers, outcasts from the society of the Old World. Doubtless these measures, aside from religious motives, were in some degree useful police ordinances; as were also those prohibiting the husband from beating his wife, and the wife from striking her spouse.[489]
But the colonists went farther and prescribed the death penalty for disobedience to parents, following the precepts of the Mosaic law.[490]Furthermore, they attempted to regulate courtship by statute, in a way which, however wholesome, would scarcely be relished by the young men and maidens of our generation. Thus the general court of Plymouth prohibits "any motion of marriage to any man's daughter or mayde servant" without having "first obtayned leaue" of the parents or master under penalty of fine and corporal punishment in the discretion of the bench. But appeal is allowed to the magistrate, when the master "through any sinister end or couetous desire," witholds his consent.[491]The courts were not wholly without business growing out of this legislation, as appears from illustrations collected by Mr. Goodwin. "In 1652 Jonathan Coventry was indicted for 'making a motion of marriage' to Katherine Bradbury, servant to Mr. Bourne, of Marshfield, without the latter's consent.[492]Coventry left the Colony before arrest.... In 1648 Thomas Dunham was ordered to abstain from visiting or sending to Martha Knott, of Sandwich, from October 4 till the first Tuesday of December, that the Court may betterlearn of his pretended contract, unless the Governor, on the clearing of things, give him leave. A romantic case was that of Governor Thomas Prence against Arthur Howland, Jr., nephew of the Pilgrim.[493]The tolerant course of the elder Arthur Howland toward the Quakers had earned Prence's hearty ill-will; and when, in 1660, he found that Arthur, Jr., had wooed his daughter Elizabeth, he had the swain before the General Court, where he was fined £5 for making love without her father's permission. The couple remained constant, for in 1667 the irate Governor once more brought up young Arthur, who was again fined £5 because he had 'disorderly and unrighteously endeavored to obtain the affections of Mistress Elizabeth Prence,' and was put under bond of £50 to 'refrain and desist.' But Prence, like Canute, was unable to control the forces of Nature. This action was in July; but before the next spring the imperious Governor seemed to have been forced to capitulate, for Arthur and Elizabeth were united."[494]On the other hand, the right of a lover to appeal to the magistrate, in case his "motion" were hindered through "sinister end or couetous desire," was occasionally of practical value. In 1646, for instance, Richard Taylor complained to the general court of Plymouth that he was prevented from marrying Ruth Wheildon by her father Gabriel; but when before the court Gabriel yielded and promised no longer to oppose the marriage.[495]The records show that parents might be held accountable for "miscarriages" resulting from unreasonable opposition.[496]
To the close of the colonial era a law of Connecticut provided that "if any Man shall directly or indirectly endeavour to draw away the affections of any Maid ... , on pretence of Marriage, before he hath obtained Liberty and Allowance" from her parent, governor, or guardian, should there be any, "he shall forfeit the sum ofFive Poundsto the Party grieved; double that amount for the second offence; and for a third transgression suffer imprisonment, besides paying the costs of prosecution."[497]
An elaborate statute of New Haven, for the regulation of proposals, provides "that whosoever within this jurisdiction shall attempt, or endeavor to inveagle, or draw the affections of any maide, or maide-servant, whether daughter, kinswoman, or in other relation, for himself, or for any other person, without the consent of father, master, governor, or such other, who hath the present interest, or charge, or (in absence of such) of the nearest magistrate, whether it be by speech, writing, message, company-keeping, unnecessary familiarity, disorderly night meetings, sinful dalliance, gifts, or any other way, directly or indirectly, every such person (besides all damages which the parent, governor, or person intrusted or interested, may sustain by such unlawful proceedings) shall pay to the plantation forty shillings for the first offence; and for the second offence towards the same party four pounds; and for the third offence he shal be further fined, imprisoned, or corporally punished, as the plantation court, or court of magistrates considering all circumstances, shal determine."[498]
The foregoing act was probably suggested by the Massachusetts law of 1647, which is likewise here presented. Itis declared that, "whereas God hath committed the care and power into the hands of parents for the disposing their Children in Marriage, so that it is against rule, to seek to draw away the affections of young maidens under pretence of purpose of marriage, before their parents have given way and allowance in that respect; and whereas it is common practise in divers places for young men irregularly and disorderly to watch all advantages for their evil purposes, to insinuate into the affections of young Maidens by coming to them in places and seasons unknown to their parents for such ends, whereby much evil hath grown amongst us, to the dishonour of God and damage of parties; for prevention whereof for time to come. It is further Ordered, that whatsoever person from henceforth shall endeavour, directly or indirectly, to draw away the affection of any mayd in this jurisdiction, under pretence of marriage, before he hath obtained liberty and allowance from her parents or Governors or in absence of such of the nearest magistrate, he shall forfeit for the first offence five pounds, for the second towards the partie ten pounds, and be bound to forbeare any further attempt and proceedings in that unlawful designe, without or against the allowance aforesayd. And for the third offence upon information or complaint by such parents or Governors to any Magistrate, giving bond to prosecute the party, he shall be committed in prison, and upon hearing and conviction by the next court, shal be adjudged to continue in prison, untill the Court of Assistants shall see cause to release him."[499]
The courts were not without employment under this statute. In 1658 Paul Wilson appeared before the county court of Middlesex, sitting in Charlestown, "to answer the complaint of Deacon Upham for violent soliciting hisdaughter against his will." Whereupon the tribunal "admonished Wilson of his evil behavior towards the said Upham and his daughter Priscilla, and ordered him to give bond of ten pounds for his regular behavior towards the said parties." Accordingly the culprit gave bond "yt he will no more frequent the company of Priscilla Upham, nor by no means whether direct or indirect, make any more addresses vnto her without her fathers leave first orderly had & obteined."[500]For a similar offense, in 1672, the county court of Suffolk fined Benjamin Scott five pounds.[501]Two years later, before the same tribunal, Thomas Irons was presented "for procuring Richard Barnum to publish a marriage" between himself and Mary Arnold without her father's leave;[502]while the next February, as we learn from the record, John Lorin stood "convict on his own confession of making love to Mary Willis without her parents consent and after being forwarned by them, £5."[503]
Although parents might be prosecuted for "unreasonably denying any child timely or convenient marriage,"[504]it is evident that lovers had to be very circumspect in old colonial days. In a community where power to dispose of a son or daughter in wedlock was believed to be the gift of heaven,it is not strange that "allowance" was sometimes hard to gain. Praising the chaste reserve of the gentle "old maid" of Boston whom he had learned to admire, John Dunton thus expresses the dominant view: "I am sure this is most agreeable to theVirgin modesty, which should make Marriage an act" rather of "obedience" than "choice." "And they that think their Friends tooslowpacedin the matter give certain proof that lust is the sole motive."[505]Nor was the average New England house-father at all likely to allow sentiment to get the better of prudence in seeking a match for his child. He was more apt to be governed by a spirit of cold calculation which never for an instant lost sight of the "main chance." Judge Sewall, for example, can hardly be called "slowpaced" in providing his daughters with wooers. He superintends the whole "business" of love-making with never-flagging zeal. Poor, timid daughter Betty is fairly worried into matrimony, perhaps as the only sure way of escaping her father's nagging. What a procession of "captains" and "persons of worth" he parades before the reluctant girl before he succeeds in gaining his will! The first who "wished to speak with her" is Captain Tuthill, who appears as a suitor when she is but seventeen years of age. After the judge had made careful and satisfactory inquiry as to the captain's estate—which he finds valued at £600 or £700—and the young man "in good Business, and like to be in better;"[506]and after having his daughter read to him about the courtship of Adam and Eve "as a soothing and alluring preparation for the thought of matrimony,"[507]the lover is invited to call. Of this visit and its surprising result Sewall thus writes in hisDiary: "At night Capt. Tuthill comes to speak with Betty, who hid her self all alone in the coachfor several hours till he was gon, so that we sought at several houses, till at last came in of her self, and look'd very wild."[508]A number of others in rapid succession have little better luck with the coy maiden. The next fall, however, on returning from a journey to Rhode Island, the judge finds his "family in health, only disturb'd at Betty's denying Mr. Hirst." A month later he sadly records that he supposes even this suitor has "taken his final leave."[509]Nevertheless two days after, on October 26, 1699, he addresses Betty at "Brantry," where she had gone on a visit, the following characteristic letter:
"Mr. Hirst waits upon you once more to see if you can bid him welcome. It ought to be seriously considered, that your drawing back from him after all that has passed between you, will be to your Prejudice; and will tend to discourage persons of worth from making their Court to you. And you had need well to consider whether you are able to bear his final Leaving of you, howsoever it may seem gratefull to you at present. When persons come toward us, we are apt to look upon their Undesirable Circumstances mostly; and therefore to shun them. But when persons retire from us for good and all, we are in danger of looking only on that which is desirable in them to our wofull Disquiet. Whereas 'tis the property of a good Balance to turn where the most weight is, though there be some also in the other Scale. I do not see but that the Match is well liked by judicious persons, and such as are your Cordial Friends, and mine also.
"Yet notwithstanding, if you find in yourself an i[=m]ovable, incurable Aversion from him, and ca[=n]ot love, and honour, and obey him, I shall say no more, nor give you any further trouble in this matter. It had better be off than on. So praying God to pardon us, and pity our Undeserving, and to direct and strengthen and settle you in making a right Judgment,and giving a right Answer, I take leave, who am, dear child, your loving father. Your mother remembers to you."[510]
Either this letter had the desired influence or Betty was unable to endure the "wofull disquiet" of a "final leaving;" for a year later it stands written that "Mr. Grove Hirst and Elizabeth Sewall are married by Mr. Cotton Mather."[511]
The colonists were extremely anxious to restrain vice by legislation. The whole field of private morals was brought under the purview of the magistrate. Unchastity and sexual crimes, especially, they were determined to prevent at all hazards; and, in consequence, the early colonial and court records are far from pleasant reading. Conjugal infidelity is especially abhorred by the lawmaker. Originally, in all the New England colonies save Rhode Island and Plymouth, death was the penalty prescribed for adultery with a "married or espoused wife." In the New World the Puritan thus actually realized what Luther, Hooper, and other Reformation Fathers ardently desired as an ideal fulfilment of the Mosaic code.[512]The capital law of Massachusetts, at any rate, was not a dead letter, as is clearly shown by the records of the early period. The only attempt to put in force the original act of 1631 was, indeed, a failure. It appears that in 1637 two men and one woman were convicted;but on the ground that the statute had been "made by the court of assistants by allowance of the general court," and for fear lest it had not been "sufficiently published," the extreme penalty was not administered. Instead the culprits were whipped and then banished on pain of death should they return.[513]The act of 1631 was, however, at once confirmed,[514]and it remained in force until superseded by the "Body of Liberties," whose provision on this point was not abrogated during the period of the colonial charter. Under the law as thus constituted two persons were condemned and executed in 1644.[515]Further, in hisMagnaliaCotton Mather mentions the execution of an adulterer from Weymouth.[516]These are the only cases of capital punishment for this offense yet discovered; but a number of persons narrowly escaped it, where the evidence seems sufficient to warrant the death penalty. Apparently the courts shrank from pronouncing sentence according to the full rigor of the law,[517]satisfying themselves with lesser punishments, such as imprisonment, banishment,[518]or whipping.
In Plymouth the death penalty for adultery seems never to have been established.[519]Instead, the "scarlet letter," a punishment even more terrible to bear, was there adopted as a permanent badge earlier than in any other colony; while in England it appears never to have been so employed for any crime.[520]So far as known, the oldest typical case of bearing such a "stigma" continuously for adultery occurredin 1639. In that year a woman was sentenced to be "whipt at a cart tayle" through the streets, and to "weare a badge vpon her left sleeue during her aboad" within the government. If found at any time abroad without the badge, she was to be "burned in the face wtha hott iron."[521]Two years later a man and a woman for the same offense were severely whipped "at the publik post" and condemned while in the colony to wear the lettersAD"vpon the outeside of their vppermost garment, in the most emenent place thereof."[522]So the custom was already developed in judicial practice when the oldest statute providing for the "scarlet letter" appeared in 1658. It was then enacted "that whosoeuer shall comitt Adultery shalbee seuerly punished by whiping two seuerall times; viz: once whiles the Court is in being att which they are convicted of the fact and 2condtime as the Court shall order; and likewise to weare two Capital letters ziz; AD cut out in cloth and sewed on theire vpermost Garments on theire arme or backe; and if at any time they shalbee taken without the said letters whiles they are in the Gourment soe worn to bee forth with taken and publickly whipt."[523]
The Plymouth statute was copied into the Cutt Code for New Hampshire in 1679-80.[524]By the act of 1701, taken from the Massachusetts law of 1694, the initial letter is still prescribed;[525]and down to its repeal in 1792 the law was frequently enforced by the courts.[526]
It is an evidence of the more humane tendency of Rhode Island legislation that neither death nor the scarlet badge seems ever to have been prescribed for adultery, althoughthe offense was otherwise harshly punished. The culprit is to be "publickly set on the Gallows in the Day Time, with a Rope about his or her Neck, for the Space of One Hour; and on his or her Return from the Gallows to the Gaol, shall be publickly whipped on his or her naked Back, not exceeding Thirty Stripes; and shall stand committed to the Gaol of the County wherein convicted, until he or she shall pay all Costs of Prosecution."[527]
In Connecticut a brand appears to have superseded the death penalty at least by 1673, as shown in the code of that year. The provision of this code is retained almost exactly in the compilation of 1769, requiring "that whosoever shall commit adultery with a Married Woman or one Betrothed to another Man, both of them shall be severely Punished, by Whipping on the naked Body, and Stigmatized or Burnt on the Forehead with the LetterA, on a hot Iron: And each of them shall wear a Halter about their Necks, on the outside of their Garments, during their Abode in this Colony, so as it may be Visible: And as often as either of them shall be found without their Halters, worn as aforesaid, they shall, upon Information, and Proof of the same, made before an Assistant or Justice of the Peace, ... be Whipt, not exceeding Twenty Stripes."[528]
As a detail of interest it may be observed that nowhere save in Connecticut is the continuous wearing of a halter provided for by statute; although for offenses other than adultery several decisions show that during the seventeenth century this punishment was employed in the Bay Colony.[529]Furthermore, in Connecticut, as will hereafter appear, the law of incest differs from that of adultery in not requiring a rope to be so worn.
The statute of Massachusetts prescribing the death penalty for adultery did not survive the fall of the charter. So in 1794 the scarlet letter was substituted.[530]The act published on June 20 of that year, and remaining in force until after the close of the provincial era, varies in several important details, though not essentially, from the laws of Plymouth and Connecticut already presented. The offenders "shall be set upon the gallows by the space of an hour, with a rope about their neck, and the other end cast over the gallows; and in the way from thence to the common goal shall be severely whip'd, not exceeding forty stripes each." Also the offenders "shall forever wear a capital A, of two inches long and proportionate bigness, cut out in cloth of a contrary color to their cloaths, and sewed upon their upper garments, on the outside of the arm, or on their back, in open view." If "found without their letters so worn, during their abode in this province, they shall, by warrant from a justice of peace, be forthwith apprehended and ordered to be publicly whip'd,not exceeding fifteen stripes, and so from time to time,toties quoties."[531]
Apparently writers have thus far failed to discover positive evidence that the provision of this act regarding the capital letter was ever carried out. A search in the manuscript records of the superior court of judicature, however, has disclosed several interesting cases. The earliest sentence occurred in March, 1707, when Mathew Fuller and Hannah Parker were indicted before a superior court at Plymouth. In the exact terms of the statute Hannah was sentenced to be set on the gallows, receive thirty stripes upon her naked back, and forever after to wear the capitalA. But, singularly enough, her paramour was acquitted, no reason being assigned therefor either in the court record or in the files.[532]Again in 1721 Jemima Colefix, for sinning with a free negro and bearing a mulatto child, received a similar sentence; and in this case also the accused man was acquitted of being the putative father as had been charged.[533]The next case is dated February 9, 1730-31; and it shows that men as well as women had to endure this penalty. Before a court held in Boston "the jurors present John Warren, miller, and Rachel Gould for adultery," both being married persons. Although they pleaded not guilty, they were each set on the gallows, given thirty-nine stripes, and condemned to wear the capitalletter.[534]Twenty years later, on September 26, 1752, "Daniel Bayley, cooper, and Mary Rainer" received the same punishment, except that they each suffered forty stripes, the full number allowed by the statute.[535]Finally after the lapse of thirty years more, just as the War of Independence was drawing to a close, we learn from the records that, following the usual stripes and exposure on the scaffold, Jerusha Doolittle was condemned to wear the fatalAas a badge of shame "forever."[536]
This closes the list of cases found in which the stigma is referred to. On the other hand, there are a number of sentences for adultery, or for what would ordinarily be so regarded, where this penalty is not imposed. These are the cases of semi-adulterous conduct, nominally provided for by the act of 1694, in which there is either no charge or not sufficient evidence of absolute transgression.[537]Usually oneand sometimes both of the culprits are married. Fines, stripes, and occasionally banishment are the penalties imposed. As in the early period, there is manifestly a hesitation to urge conviction for "adultery" so as to involve the extreme penalty of the scarlet letter. The courts thus seem to favor a strict construction of the statute, giving the accused the benefit of the more lenient interpretation. In several cases the jury declines to convict for the offense charged where the evidence would clearly seem enough to sustain a verdict.[538]
Throughout New England, Rhode Island alone excepted, persons guilty of incest—that is to say, of uniting within the degrees of consanguinity or affinity legally forbidden—were stigmatized with an initial letter precisely as in the case of adultery. An act of Massachusetts in 1692, "for the punishing of capital offenders," makes this offense a felony punishable with death.[539]Because some of the "articles" dealing with capital crimes, among which is incest, "were conceived in very uncertain and doubtful terms," and because in such cases the penalty of death was not "conformable to yeLaws of England," the act was disallowed by the privy council in August, 1695.[540]However, in June of the same year a new act for the prevention of incestuousmarriages had been adopted by the general court; and this remained in force during the provincial era. By it the forbidden degrees are enumerated in harmony with the English ecclesiastical law. For violation of its provision exactly the same penalty in the same words is imposed as by the statute of 1694 for the punishment of adultery, except that in place ofAa capitalIis to be continuously worn.[541]This act of 1695 was adopted by New Hampshire in 1714,[542]and by Connecticut in 1702, the provision regarding the initial letter reappearing in the statute books of the latter commonwealth until 1821.[543]
In Massachusetts the legal stigma for incest was often imposed by judicial sentence. As already noticed by Davis, such a sentence in 1743 was executed upon Andrew Fleming, of Groton, who had first been set on the gallows for an hour and whipped forty stripes.[544]Hitherto no other examples of wearing the capitalIseem to have been discovered. But a careful search in the manuscript records of the superior court for the period ending in 1780 has brought to light five additional cases. The first of these occurred in 1729 and the last in 1759. In every instance the culprit is punished with rope and gallows, stripes, and the scarlet letter.[545]
The New England Puritans were, of course, very serious in their efforts to check sexual immorality. Their laws are characteristic of the age. As yet small progress had been made in enlightened theories of crime and its punishment. Besides they were steeped to the core in Hebraism. More or less as a religious duty they accepted and re-enacted the harsh precepts of the primitive Jewish code. It is not a little curious, however, to see them preserving an ancient English usage, almost extinct in the mother-country—in some instances regulating it by statute—which "thwarted their endeavors for complete propriety."[546]This was the custom of pre-contract, contraction, or betrothal, which everywhere in New England was celebrated with due solemnity. Such was the case in Massachusetts.[547]By the Connecticut statute, as already noted, the "contract" was carefully distinguished from the "covenant;" and because many persons entangle themselves by rash and inconsiderate promises for their future joining in marriage, the act of 1640 requires eight days' public notice of the betrothal, after which a second period of eight days must elapse before the covenant is sealed.[548]The pre-contract was in use also in New Hampshire[549]and Plymouth. In the latter jurisdiction the "couple—having the consent of the parents or guardians, in the case of minors—made before two witnesses a solemn promise of marriage in due time, the ceremony having the formality of the magisterial weddings then in vogue."[550]
Undoubtedly pre-contract was derived from the English "espousals," which, it has already appeared, were a direct survival of thebeweddungof the Anglo-Saxon laws. But in New England the betrothal gained a peculiar legal significance. "The betrothed woman was put, both by law and social custom, one step above the woman who was not betrothed, and one step below the woman who was married. This was so both as respects the civil and the criminal law."[551]In Massachusetts, Connecticut, and New Haven the "espoused wife" like the married wife is to suffer death for adultery;[552]while for fornication, on the other hand, the single woman and her partner in guilt are much less severely punished. The betrothed woman "was sentenced to wear the brand of the 'scarlet letter,' precisely as if she were married."[553]
Thus in New England the betrothal regained a sanction similar to that which it possessed according to primitive Germanic custom. It was, in fact, a kind of marriage. The espoused couple were separated from the world and placed in a relation whose sacredness might not be violated as respects others without the most serious consequences. On the other hand, it was entirely in harmony with this theory that when they "were guilty of incontinence with each other after pre-contract before marriage, their punishment was in general one half, or less than one half, what it would have been had there been no betrothment."[554]By the statute of Plymouth, for example, thepenalty in such cases was fifty shillings for each person and imprisonment for a period not exceeding three days, or if the guilty persons "will not or cannot" pay the fine, they are to suffer "corporal punishment by whipping" instead; while for transgression before contract the fine was twice as much.[555]This was, in effect, to place a premium[556]upon wrongdoing committed between the espousals and the nuptials. Naturally the immorality of such offenses seemed thus to be lessened; and, as will presently appear, a vast amount of sexual license was the natural result.
The evil consequences of this anomalous state of the law were rendered all the more serious through the custom of "bundling" which obtained a wide prevalence in New England as it did also in New York and the other middle colonies. According to Stiles, who has produced the only general history of the subject, bundling "was practiced in two forms; first, betweenstrangers, as a simple domestic makeshift arrangement, often arising from the necessities of a new country, and by no means peculiar to America; and, secondly betweenlovers, who shared the same couch, with the mutual understanding that innocent endearments should not be exceeded."[557]It is the second form with which we arehere most concerned; and in its origin this likewise appears to have been "a custom of convenience." It was long regarded as a gross or licentious practice peculiar to New England. Thus Irving taunts the people of Connecticut with having tried to deprave the manners of the "Dutch lasses of the Nederlandts" through the introduction of that "horrible" usage.[558]But the Dutch maidens needed no lessons from their Yankee sisters in this regard; for in their "queesting" they had brought with them a form of bundling from Holland.[559]Indeed, it is not at all improbable that in this case Pilgrim and Puritan alike may have been strongly influenced by Dutch precedent, as they certainly were in more important institutions. Such an inference seems all the more justifiable, for as yet no trace of bundling has been reported "in any localities of England itself, the mother country;"[560]though in Ireland, Scotland, and Wales evidences of its recent existence are not wanting,[561]and the custom seems clearly to be deeply planted in the ancient usage of the German race.[562]
In New England, however, it was by no means confined to Connecticut.[563]It prevailed in the sister-provinces, and especially in both western[564]and eastern Massachusetts, down to the revolutionary period and perhaps for a good many years to come. Burnaby,[565]writing of his visit to that colony in 1759-60, gives a lively account of the custom, under the name of "tarrying," significantly observing that it takes place between the permission to pay court and the banns. In his view, bundling is on the whole an innocent practice, seldom being attended by evil consequences. On the other hand, that veracious historian, Rev. Samuel Peters, reproves Burnaby for presenting the custom in "an unfavorable light, and as prevailing among thelower classof people;" whereas, according to Peters, it exists among "all classes, tothe great honor of the country, its religion and ladies."[566]Again in 1777 Lieutenant Anbury, "a British officer, who served in America during the Revolutionary War, and whose letters preserve many sprightly and interesting pictures of the manners and customs of that period,"[567]chats racily of an invitation to bundle which he received at Williamstown, Mass.—a courtesy brought about through the scarcity of beds for the entertainment of strangers.[568]Charles Francis Adams finds positive proof of the existence of the custom "within a ten-mile radius of Boston" at least until 1781;[569]and he also quotes a reference to it from a letter of Abigail Adams written three years later.[570]Nor apparently was bundling entirely abandoned in eastern Massachusetts until nearly fifty years thereafter, Cape Cod having the "dubious honor" of holding out against the "advance of civilization" in this regard until 1827.[571]The next year, inFranklin county, Me., a letter to the PortlandYankeereveals the custom existing in full vigor.[572]
According to the judgment of Stiles, bundling "came nearest to being a universal custom from 1750 to 1780." Contrary to the popular view,[573]it appears to have been confined to the more humble and less cultivated classes; "to those whose limited means compelled them to economize strictly in their expenditure of firewood and candle-light."[574]No evidence has yet been produced showing that it made its appearance in the main centers of New England civilization.
Though bundling could arise only in a comparatively rude state of society, it seems in itself to have been neither very vicious nor very immoral. Yet manifestly it was easily capable of abuse. Under dangerous conditions it might readily degenerate into coarseness and vice. Such conditions were not wanting throughout the colonial era. The general tone of sexual morality was not high. The laws and usages already presented, which in effect invited transgression on the part of engaged lovers, afforded a constant temptation.[575]Bundling thus has its chief moral significance as an adjunctof pre-contract which must be held responsible for a very large share of the sexual misconduct revealed in the judicial records. Before the general court of Plymouth the cases of "uncleanness" after contract and before marriage are very numerous. According to Goodwin, they averaged one a year; and this appears to be a conservative estimate. By actual count the records of that colony, for the twenty-eight years between 1633 and 1661, show at least twenty-four sentences for ante-nuptial offenses, chiefly after betrothal; while during the seventeen years following 1661 there are not less than forty-one such judgments. Members of some of the most illustrious families of New England were guilty of indiscretions in this regard.[576]In several of the early cases the husband was publicly whipped in view of the wife, who sat near in the stocks.[577]
The manuscript records of two counties of Massachusetts for a portion of the seventeenth century appear to demonstrate that such "miscarriages" before complete wedlock were not less frequent in the Bay Colony.[578]A thoroughanalysis of the records of the county court of Suffolk, covering the ten years 1671-80, brings to light twenty of these cases, while during the same period there are forty-three instances of transgression by "single women."[579]Now, it is important to remember that the statutes of Massachusetts, unlike those of Plymouth, do not discriminate between the offenses of single persons and those committed with each other by espoused lovers.[580]The question therefore arises as to whether thecustomof pre-contract—for pre-contract was not established bylawin that province—can be held in any way accountable for these facts. A comparison of the penalties imposed in the two classes of cases, as exhibited in Tables I and II, shows that an affirmative answer must be given. The sins of betrothed persons are in general punished with far less rigor than those of single men and women. Thus twenty-one out of forty-three single women, and eight out of thirteen single men, are sentenced to stripes alone, nineteen of them receiving each from fifteen to forty lashes;
Cases of Fornication before Marriage in the County Court of Suffolk County, Mass., 1671-80