1. Fine only3marriedcouples£5 (both)1""£3 "1""40s. "1""2. Fine and confession before the congregation or stripes2""3. Fine or stripes15""a) Fine—£5 (both)3""£4 "3""£3 "1""50s. "1""40s. "7""b) Stripes—202 husbands0 wives1512 "2 "101 "13 "TABLE IICases of Fornication by Single Persons in the County Court of Suffolk County, Mass., 1671-80The most noticeable feature of these cases is the tendency on the part of single men to confess the crime and accept punishment, besides becoming bound as putative fathers. All the convictions for fornication are by confession or pleading guilty.1. Single women convicted43a) Fine or stripes22£15 or 20 stripes1£5 or {20 stripes1{15 stripes4£3 or {20 stripes1{15 stripes350s. or {15 stripes3{10 stripes240s. or {15 stripes2{10 stripes4b) Stripes alone2140 (20 each in two places)230220111541022. Single men, confession13a) Fine or stripes5£5 or 20 stripes440s. or 15 stripes1b) Stripes alone8303205c) Putative fathers17while in no case is a single man or woman merely fined. On the other hand, out of twenty married couples punished for ante-nuptial misconduct, fifteen are given the choice of fines or stripes, three are merely fined; and in no instance is whipping alone the penalty decreed. Furthermore, the fines are on the average smaller in these cases than in others, although as regards both fines and stripes the sentences are sadly lacking in uniformity. The conclusion seems irresistible that, in harmony with popular sentiment, the courts, exercising the discretion granted by the statute, were inclined to deal more leniently with the faults of the betrothed than with those of less favored bachelors and spinsters.Similar evidence is afforded by the incomplete records of the county court of Middlesex for the period 1629-86, supplemented by the Files. These contain in all thirty cases of transgression before marriage, eight of which fall within the ten years covered by the Suffolk records already considered. Most of the severe sentences (Table III) occur in this period and the six years immediately following, although the heaviest fine, twenty pounds for the couple, is imposed in 1663.[581]Seemingly, from the few cases known, single persons were treated more harshly than those who were betrothed.[582]On presentment by the grand jury[583]or voluntarily confessions were made by wives and husbands before the court; and these documents contain evidence of the close relationTABLE IIICases of Fornication before Marriage in the County Court of Middlesex County, Mass., 1649-86[Except 1663-71]During the same period these records contain five cases of fornication by single persons.1. Fine only15marriedcouples£20 (together)1""£5 "3""£4 "6""£3 "2""40s. "3""2. Fine or stripesa) Fine10""£1 (together)5""£6 "1""£4 "3""£3 "1""50s. (wife)1b) Stripes10"206 husbands0 wives151 husband0 "103 husband10 "3. Stripes only151 husband (the wife 50s. or whipped)4. Confessions and petitions3 married couples5. Convicted and respited1 married coupleexisting between the colonial church and state. On October 31, 1671, for instance, Christopher Wheaton and Martha his wife were sentenced in Boston to make an acknowledgment "in publique at Hull to yeSatisfaction of yeCongregation, & pay twenty Shillings fine," on pain of being whippedten stripes each by the constable.[584]An elaborate "church confession," found among the Middlesex Files, would seem to prove that in another case the decree of the court was obeyed; and that the written acknowledgment made before the congregation was returned to the court for record.[585]The files and records of the same two counties, supplemented by the record of the superior court, may next be examined for the period of the second charter. The impression made by their contents is decidedly disagreeable and depressing. The coarser and more heinous sexual crimes are growing more frequent, although due allowance must be made for the increase of population. Indeed, the bulk of the records of the general sessions appears to be concerned with sexual immorality of almost every kind.[586]Inquiry is, however, here restricted to the two classes of cases thus far considered. For convenience the material is treated chronologically in two divisions. The first division covers theperiod ending in 1725; and the second the years 1726-80. Within the former period (Table IV) the records of the general sessions of Suffolk for the years 1702-25, inclusive,TABLE IVSummary of Fornication Cases Before the General Sessions of Suffolk County, 1702-25, and the General Sessions of Middlesex County, 1692-1725Between 1702 and 1725 the following cases brought conviction before the general sessions for Suffolk county:Cases of fornication where the woman alone was sentenced104Cases of conception before marriage with fine, and in a few cases fine or whipping for husband, or both husband and wife48Cases of woman fined or whipped, and putative (or acknowledged) father sentenced to maintenance of child44Between 1692 and 1725 there were the following convictions before the general sessions for Middlesex county (each case stands for both man and woman if both were tried):Cases of fornication135Cases of fornication and conception before marriage155yield forty-eight cases of conviction of married couples for pre-nuptial misconduct, as compared with 148 cases of single women sentenced for the same offenses.[587]The correspondingrecords of the general sessions of Middlesex for the years 1692-1725 contain the extraordinary number of 155 cases of the first class, as compared with 135 of the second. In a great many instances the husband or both husband and wife appear "freely and voluntarily" and confess their guilt.TABLE VFornication Cases before the General Sessions of Middlesex County, Mass., for Each Quinquennium, 1726-80[588]Quinquennium2631364146515661667176Total-----------3035404550556065707580Single women523Appeared and confessed..132412410651321...Confessed on recognizance231239796422...Pleaded guilty9231210411111352...Pleaded guilty and named man13145621181673...Conf. on recogniz'nce and named man104643616111591...Appeared, confessed, and named man415515439151645...Married couples160Appeared and confessed37651631..1...........Pleaded guilty159811...............Pleaded not guilty, but convicted2..1...................Wives[589]31Appeared and confessed213..1......1.......Pleaded guilty3......12674.......Total85115573248337768735274714This is especially true during the decade following 1715, there being five such confessions at one sitting of the court, four of them on one page of the record.The results for the later period (Table V) are still more striking. Before the Middlesex court alone, during the fifty-five years commencing in 1726, were 523 cases of singlewomen and 191 cases of married couples; but 189 of these couples were tried during the twenty-five years ending in 1750—there being but two isolated cases of confession after that date—and 181 within the first fifteen years. On theTABLE VIPenalties Imposed in Cases Comprised in Table V[590]FineSingleMarriedWivesWomenCouples£12½..1..£91....£612..£51837..£448613£36....50s10..140s242430s9..325s81..20s433..15s20....10s96225s169..164s11....3s13..22s7....1s10..1Total49410932other hand, 337 single women were convicted during the twenty-five and 257 during the same fifteen years. Again, 118 out of the 181 married couples tried between 1726 and 1740 appeared and, presumably, freely confessed their faults. The leading years in this regard are 1730 with twelve, 1732 with twenty-nine, and 1734 with sixteen confessions. The leading quinquennium is the second (1731-35) with sixty-six confessions as compared with thirty-nine in the first(1726-30) and nineteen in the third (1736-40). To offset these figures we find thirteen presumably voluntary confessions by single women in the second quinquennium, none in the first, and two in the third. These facts seem to point directly to the action of special causes in producing this kind of immorality, or, at any rate, its confession. Whether this action was local for Middlesex cannot positively be determined from these documents alone; although, as will soon appear, other evidence shows that this cannot be assumed. After 1725 the records for Suffolk are incomplete; but it is surprising that during the seven years (September, 1725, to October, 1732) covered by Table VII there were in that county only seven convictions of married couples, not one of whom freely confessed, as compared with forty-eight cases of single women, including one confession.There can be little doubt that in the eighteenth century, just as in the age preceding, the general cause of this ante-nuptial immorality—and probably also of some part of the similar misconduct of single persons whose engagements were not followed by wedlock—was the custom of solemn pre-contract which still survived. During the second quarter of the eighteenth century the penalties were relatively severe, though not so rigorous as during the period of the first charter; but the facts exhibited in Table VI show that the courts still treated pre-nuptial offenders more mercifully than those who were not married.To determine the special cause of the sudden rise in the number of confessions during the same period is a more difficult matter. It is not improbable that a suggestion of Charles Francis Adams, regarding another aspect of the problem, may give us a clue to its right solution. Already the practice of church confession of these offenses, in obedience to judicial decree, has been noticed; and independently of the courts, as a religious expiation, such acknowledgmentswere required by the authority of particular churches. In the eighteenth century, if not earlier, under the "seven months rule," the culpable parents were forced to humbleTABLE VIIFornication Cases before the General Sessions of Suffolk County, Mass., September, 1725, to October, 1732[591]Year17251726172717281729173017311732TotalSingle women:Confessed................1£3 or 10 stripes....1............Pleaded guilty................8£4 or 10 stripes....2............£3 or 10 stripes....2....1......£2 or 10 stripes......1..1..1..Pleaded not guilty, but convicted................3£5 or 10 stripes..........1......10 stripes......1..1......Pleaded guilty and named man................35£5 or 10 stripes..1..............£4 or 10 stripes221..2........£3 or 10 stripes12253431..£2 or 10 stripes......11..13..Came in freely and accused a man................1£2 or 10 stripes............1....Married couples:Fornication before marriage, man alone accus'd................220s. or 10 stripes..........11....Fornication before mar'ge, woman alone accus'd................540s. or 10 stripes..1....11......20s. or 10 stripes11..............Total47887106555themselves before the whole congregation or else expose their innocent child to the danger of eternal perdition.[592]Yet, inspite of the fact that the clergy had thus devised a punishment more terrible to bear than the fines or stripes imposed by the criminal law, during the very period under consideration the church records show a great increase in the number of confessions. Adams suggests that an explanation may be found in the religious excitement which generally prevailed during the second quarter of the eighteenth century, the period which includes the "Great Awakening" under Whitefield in 1740, the Northampton revival of 1735, "engineered and presided over by Jonathan Edwards," and earlier "harvests" of the same character.[593]At Braintree, for example, there was a vast increase in the number of church confessions during the pastorate of John Hancock, 1726-43. It was "everywhere noticed that the women, and especially the young women, were peculiarly susceptible to attacks of the spiritual epidemic. Jonathan Edwards for instance mentions, in the case of Northampton, how theyoung men of that place had become 'addicted to night-walking and frequenting the taverns, and leud practices,' and how they would 'get together in conventions of both sexes for mirth and jollity, which they called frolicks; and they would spend the greater part of the night in them;' and among the first indications of the approach of the epidemic noticed by him was the case of a young woman who had been one of the greatest 'company keepers' in the whole town, who became 'serious, giving evidence of a heart truly broken and sanctified.' This same state of affairs doubtless then prevailed in Braintree, and indeed throughout New England. The whole community was in a sensitive condition morally and physically."[594]The morbid quickening of the conscience would thus naturally result in a greater number of confessions rather than in an increase of sexual license; and this same cause seems adequate to explain the extraordinary number of confessions which we have found in the contemporary court records.[595]Besides, after the sin had been disclosed before the congregation, an acknowledgment in court would almost necessarily follow. It would be very strange, however, if there were not a considerable increase in immorality. The practice of bundling, asAdams believes,[596]may have afforded ready opportunity. Any violent or protracted disturbance of the mental or nervous equilibrium, often tending to produce sexual excesses, would be sure to find "vent" in so dangerous a custom, especially when sanctioned by the recognized doctrine of betrothal.Finally it is not without interest to note that the higher legal significance of the "contraction," as compared with that of the Englishsponsalia, is due mainly to the influence of the Jewish law. The code of Moses mentions no fixed ceremonies for concluding marriage.[597]But precisely the same relation as by the Puritans is fixed between marriage and betrothal. For criminal assault upon the betrothed "damsel that is a virgin" and for adultery the death penalty is prescribed.[598]Later, however, the rabbinical law establishes "certain legal formalities for the act of concluding marriage. The act consisted of two distinct parts, intervened by the lapse of a certain time, the betrothment and the nuptials."[599]To constitute a legal betrothment the mere consent of the parties did not suffice. The performance of a solemn act was required. This consisted in the man's giving to his chosen bride in the presence of two witnesses either a written instrument,sh'tar, or a piece of money,kaseph, and saying: "Be thou consecrated (wedded) to me."[600]The contract thus made is not a "mere promiseto marry," with civil consequences for non-fulfilment. "It is the very initiation of marriage. The betrothed parties are in some respects regarded as married, though not yet entitled to the marital rights nor bound to fulfil any of the mutual duties of conjugal life.... The betrothment could be dissolved only through death or a formal bill of divorce."[601]Among the Jews it was quite customary for the betrothal to be preceded by an "engagement," but it was not legally required.[602]The Puritan went farther in this regard, regulating proposal and courtship, as well as the pre-contract and nuptials, by statute.V. BREACH OF PROMISE AND MARRIAGE PORTIONSThe New England contraction or public betrothal, when its social and legal consequences are considered, is thus seen to be an institution of far more historical interest than the scanty attention it has hitherto received would lead one to infer. This is all the more apparent when the accompanying practice of legal courtship is kept in view. Never, perhaps, in any modern society has parental control been so pronounced. But if consent were once given and sealed by a contract in due form, it could not be lightly withdrawn. The early records abound in notices of suits for breach of promise. The colonists were a litigious people; and members even of some of the best families do not hesitate to drag their matrimonial difficulties into court. Sometimes a jilted lover sues his fickle sweetheart; or a forlorn maiden seeks satisfaction from her betrothed spouse. Thus the Massachusetts court "orders that Joyce Bradwicke shall giue unto Alex: Becke the so[=m]e of xxs, for promiseing himmarriage wthout her ffrends consent, & nowe refuseing to [p=]forme the same."[603]Likewise in the Plymouth jurisdiction we find John Sutton complaining "against Mary Russell, in an action of the case, to the damage of two hundred pounds, for engageing herselfe to another by promise of marriage, whenas shee had engaged herselfe by promise of marriage vnto the said John before. The jury find for the plaintiffe fifteen pounds damage, and the cost of the suite which came to 1lb10s6d."[604]But this did not entirely end the matter. In 1662-63 the case was taken up for review, Mary having in the meantime become the wife of John Jacob. After a careful rehearing, the court reaches the curious decision that Mary's "actinges haue bine such ... as may not reflect vpon her disparagement, wee apprehending that what wrong hath bine vnto John Sutton heerin hath bine rather occationed by her father than by ... herselfe, shee haueing heard such thinges concerning the said Sutton as might justly discurrage her, although the truth of these reports wee see not cause to determine." Whereupon, oddly enough, it is decreed "that the abouesaid John Sutton doe pay vnto John Jacob ... the su[=m]e of fifty shillings."[605]Sometimes a parent joins with his aggrieved child in seeking reparation; as when "Richard Siluester, in the behalfe of his daughter, and Dinah Siluester in the behalfe of herselfe" recover twenty pounds and costs from John Palmer, "for acteing fraudulently against the said Dinah, in not [p=]forming his engagement to her in point of marriage."[606]The proceedings of the Massachusetts courts contain the record of many similar suits under a variety of conditions. Some are ordinary cases of breach of promise.[607]In 1735 a woman was awarded two hundred pounds and costs at theexpense of her betrothed who after jilting her had married another, although he had first beguiled her into deeding him a piece of land "worth £100."[608]Hopestill Aldrich in 1764 was not so successful. The higher court on appeal declined to give her damage, because after beginning her action against the faithless Darius Daniels she had married David Bowin, "who is still living and is her lawful husband."[609]A number of cases afford further evidence of the danger lurking in the New England doctrine of espousals, the indemnity sought being intended in part to punish personal wrongs committed under cover of pre-contract.[610]Puritan lovers did not always hesitate to prosecute their parents for refusing marriage when permission had once been given. Such was the fate of Hope Allen, who admitted before the Massachusetts court that "he did give his consent ytyesaid Mr. Deacon should haue his daughter;" and accordingly for breaking his word he was censured, and had to pay a fine of ten pounds for his "irregular procedure."[611]The action might take a still more interesting form, including both the recreant parents and the promised consort in the same complaint. In this way Richard Sutton alleges "against Moses Symonds and Sarah, his wife, and Elizabeth theire daughter, that shee, the said Elizabeth, hath made a promise of marriage vnto him, and is hindered by the parents ... from proceeding with her therin." The court after due consideration decides that Moses ought to pay the said Richard "the su[=m]e of three pounds, for satisfaction for histime and charges spent about the [p=]mises;" but not without kindly releasing the couple from their engagement, "vnless on second considerations they shall see cause to renew theire former couenants."[612]These illustrations would seem to show that the blighted hopes and disappointed affections of New England lovers were not judicially reckoned at an extortionate figure. But those were the days of "small change" in all domestic affairs. As a matter of fact, the colonists were a close-fisted, bargaining race;[613]and in no respect perhaps were they more prudent than in their matrimonial transactions. Sometimes very careful contracts were executed in court regarding the property rights of the future husband and wife.[614]Often before betrothal and almost invariably before wedlock an exact arrangement was made between the parents touching the marriage portion on either side. The "higgling of dowries," suggests Weeden, was one of the most "singular practices" of New England life.[615]Even paupers were provided a marriage portion at the county's charge.[616]No shrewder hand ata bargain existed than Judge Sewall, whoseDiaryandLetter-Bookare crowded with illustrations of this and other matrimonial customs. In 1712 we find him planning a match between his daughter Mary and young Samuel Gerrish. So he dines with the father and "discourses" with him "about my Daughter Mary's Portion. I stood for making £550 doe: because now twas in six parts, the Land was not worth so much. He urg'd for £600. at last would split the £50. Finally Feb. 20. I agreed to charge the House Rent and Difference of Money, and make it up to £600."[617]The worthy magistrate was not less thrifty in managing his own courtships, never for a moment allowing mere sentiment to get the better of prudence. From the outset he was lucky; for in 1676, according to tradition, he received as a dowry with his first wife, Hannah Hull, her weight in pine-tree shillings, which her father, the mint-master, measured out to him against her body in his own scales. In reality, his wife brought him much more than this fabled treasure; for six years after the wedding he came into the enjoyment of the mint-master's large estate, thus laying the foundation of his own fortune and official career.[618]Hannah lived with him more than forty years, bearing him seven sons and seven daughters. On her death the judge writes to a friend: "Wife expired on Satterday Oct. 19th, a little before Sun-Sett; and I lost my most constant lover, my most laborious Nurse; which produc'd a Flood of Tears in our Bed Chamber."[619]Soon, however, he was able to stem the torrent of his grief, for on the sixth day of the next February he enters in his diary: "Wandering in my mind whether to lead a Single or a Married Life."[620]Indeed, several weeks before this, when his wife was hardly two months dead, his mind and feet had begun to wander in the direction of Madam Winthrop,[621]upon whom, in his usual kindly way, he had bestowed certain tokens of his regard.[622]But for the present the charms of Widow Winthrop had to yield to those of Widow Dennison, whose goodly estate he had come to admire through having drawn her husband's will.[623]Attending her home from the funeral of her late consort, he "prayed God to keep house with her."[624]This was in March. Presently he opens serious negotiations. He makes her numerous presents, among which are "A pound of Reasons and Proportionable Almonds;" a "Psalm-Book neatly bound in England with Turkey-Leather;" the "last two News Letters;" "Dr. Mathers Sermons very well bound," and "told her in it we were invited to a wedding;" a "pair of Shoe-buckles, cost 5s3d;" and "Two cases with a Knife and a fork in each; one Turtle shell tackling: the other long with Ivory handles Squar'd, cost 4s6d."[625]In November, after much visiting and chaffering, he came to the point. "I told her 'twas time now to finish our Business: Ask'd her what I should allow her; she not speaking; I told her I was willing to give Two [Hundred] and Fifty pounds per a[=n]um, during her life, if it should please God to take me out of this world before her. She answer'd she had better keep as she was, than give a Certainty for an uncertainty; she should pay dear for dwelling at Boston. I desired herto make proposals, but she made none. I had Thoughts of Publishment next Thorsday, the 6th. But I now seem far from it. May God, who has the pity of a Father, Direct and help me."[626]This is by no means the end. The courtship drags along, and they continue to "higgle like hucksters and pedlers."[627]"She said she thought twas Hard to part withAll, and have nothing to bestow on her Kindred. I said, I did not intend anything of the Movables, I intended all the personal Estate to be to her. She said I seem'd to be in hurry on Satterday ... which was the reason she gave me no proposals. Whereas I had ask'd her long before to give me proposals in Writing; and she upbraided me, That I who had never written her a Letter, should ask her to write." So the thrifty judge, although his "bowels" did "yern toward Mrs. Dennison," must even decide that God "in his Providence" directed him to "desist."[628]Later the widow grew more kind. On the following Lord's day she came to see him in the evening, walking all the way from Roxbury. She "ask'd pardon if she had affronted me;" and plainly let it be seen that she was not averse to the match, if only she were not called upon to "put all out of her Hand and power" and could "reserve something to bestow" on her deceased husband's friends "that might want." But, says Samuel, "I could not observe that she made me any offer of any part all this while." So "she went away in the bitter Cold, no Moon being up, to my great pain. I saluted her at parting."[629]Then the judge turned to Widow Tilly, whom he married on the next Thanksgiving day (October 29, 1719), though she pleaded her "Unworthiness of such a thing with muchRespect."[630]But the union was short-lived; for in May of the next year "a very Extraordinary, awful Dispensation" came to the Judge. "About midnight," he writes, "my dear wife expired to our great astonishment, especially mine."[631]Already by the following December he wants God to "yet again provide such a good Wife for me, that I may be able to say I have obtained Favour of theLord."[632]For in the meantime his mind has been "wandering" again toward Catherine Winthrop. But the gentle widow is now very coy and close at a bargain. After many visits and some interesting love passages,[633]the judge writes, she "was Courteous to me; but took occasion to speak pretty earnestly about my keeping a Coach: I said 'twould cost £100. per a[=n]um: she said twould cost but £40."[634]Clearly the issue was getting too sharply joined; and it is not wholly surprising that the lady was a trifle cool at her suitor's next visit.[635]Later he asked her "when our proceedings should be made publick: She said they were like to be no more publick than they were already. Offer'd me no Wine that I remember." She did not offer to help him on with his coat, nor at his request would she send her servant Juno to light him home.[636]It is to be feared that Catherine had not forgiven her suitor for leaving her for Widow Dennison, and was now getting "even." But the judge stood manfully to his arms. At the next meeting "I told her ... I was come to enquire whether she could find in her heart to leave that House andNeighborhood, and go and dwell with me at the South-end; I think she said softly, Not yet. I told her it did not ly in my Lands to keep a coach.... Told her I had an Antipathy against those who would pretend to give themselves; but nothing of their Estate. I would [give] a proportion of my Estate with my self. And I su[=p]os'd she would do so."[637]It goes without saying that when Sewall made his next call the lady was "not at home." After one or two more futile efforts[638]at coming to terms the grapes began to sour. The aged wooer somewhat spitefully closes this unlucky chapter of his courtships with the ungallant remark that "I did not bid her draw off her Glove as sometimes I had done. Her dress was not so clean as sometimes it had been. Jehovah jireh."[639]Thus Eros regained his sight.Several other attempts prove not more successful in providing the venerable widower with a suitable place to rest his "weary Head in Modesty."[640]But at last, humbly confessing himself, "aged, and feeble, and exhausted," he offers himself as a husband to Mrs. Mary Gibbs, of Newton, who is all too yielding in her reply.[641]For with this gentle dame the astute wooer, erstwhile so meek, at once proceeds to drive the sharpest bargain in the long history of his courtships. As she had no property to leave him by will, he insists upon the following harsh conditions: "I Rode to Newtown in the Coach, and visited Mrs. Gibbs. Spake of the proposals I had intimated per Mr. H. Gibbs; for her Sons to be bound to save me harmless as to her Administration; and to pay me £100. provided their Mother died before me: I to pay her £50. per a[=n]um during her Life, if I left her a Widow. She said 'twas hard, she knew not how to have her children bound to pay that Sum; she might dye in a little time. Mr.Cotton, whom she call'd spake to the same purpose, spake of a Joynture. I said I was peremptory as to the indemnifying Bond; Offer'd to take up with that alone, and allow her forty pounds per a[=n]um."[642]These terms, "hard" as they were and again insisted upon with most unromantic bluntness,[643]were at length accepted by the amiable Mary; who, surviving her kindly though grasping spouse, was no doubt by his side, according to his wish, to "carry it tenderly"[644]with him when he passed to his last reckoning.VI. SELF-GIFTA, CLANDESTINE CONTRACTS, AND FORBIDDEN DEGREESThe Separatist and the Puritan, regarding marriage as "purely a civil contractual relation," logically conceded that "the parties may marry themselves as they may make other contracts." But, "like all other civil institutions, this may be regulated by municipal law. It should therefore be sanctioned by the civil authority;" and for that reason persons may be fined for marrying without observing the forms prescribed by the statutes.[645]Nevertheless such legalrestraint, however wholesome and reasonable, seems to have been resented by the more radical as an interference with individual liberty; though doubtless the disregard of the marriage laws was in part due to the rudeness of an early society.Instances of self-betrothal and self-giftaseem to have been frequent in all the New England colonies. Thus, in 1678, Edward Wanton was fined £10 by the general court of Plymouth for "marrying himself," and Thomas Boarman paid £5 for the same offense. In 1684 William Gifford was fined fifty shillings for contracting a "disorderly marriage."[646]More interesting is the case of Edward Perry, on Cape Cod, who appears to have been guilty of self-marriage in 1654. For this he was fined £5; and Thomas Tupper, of Sandwich, for neglecting to perform the ceremony, "was 'disallowed' by the court from solemnizing marriages in future."[647]Then "magistrate Prence, when passing by on his return from court to Eastham, was to marry him rightly. Perry refused to be re-married, and was fined £5 more, with the discouraging notice that his fine would be repeated every three months till he complied."[648]Marriages by the primitive form of "hand-fasting" were not unknown in Massachusetts. An intelligent French refugee, who visited Boston two years after the revocation of the Edict of Nantes, writes that "there are those who practice no Formality of Marriage except joining Hands, and so live in Common."[649]But the most celebrated instance of self-giftais the case of Governor Richard Bellingham, who in 1641 entered into a private marriage with Penelope Pelham, herself "about forming a contract with another."[650]"Two errors more," says Winthrop, "he committed upon it.1. That he would not have his contract published where he dwelt, contrary to an order of court. 2. He married himself contrary to the constant practice of the country."[651]The governor was therefore indicted for his offense by the grand jury; but "he declined to leave his place on the bench" over which he presided, "in order to take a position in the dock, and thus 'escaped both trial and punishment.'"[652]The secretary "postponed the case amidst excitement, and it was not again called up."[653]In spite of the constantly increasing severity of the penalties, clandestine marriages gave the lawmaker much trouble.[654]This is plainly revealed by the laws, already cited, relating to banns, consent, registration, and celebration,[655]especially by those of Rhode Island. The act of 1647 provides "that no contract or agreement between a Man and a Woman to owne each other as Man and Wife, shall be owned from henceforth threwout the Whole Colonie as a lawfull marriage, nor their Children or Issue so coming together to be legitimate or lawfullie begotten," but such as conform to the statute.[656]The clause relating to the issue of irregularmarriages is noteworthy; for it is contrary to the usual tenor of the colonial laws, which—anticipating the policy of William III.—usually imposed severe penalties upon the offenders without affecting the legitimacy of the children. But even so stringent a remedy did not suffice. A new law in 1665 enforces that of 1647, adding the penalty prescribed for "fornication" for non-observance; but making the important exception in favor of existing irregular marriages "that any persons now living within the confines expressed in our late charter, ... that are reputed to live together as man and wife by the common observation or account of there neighbours before this act was passed, shall not come vnder any of the censures, fines, or penaltyes in any of the fore premised acts or orders, or in this present [order] concearning marriages," though "there may have been some neglect of the due observation of the rules and directions to that end therein contained."[657]It appears that "some persons" had "taken advantage of the law" to render the children of unregistered marriages illegitimate. An explanatory statute was therefore enacted in 1698 declaring such marriages lawful;[658]and in the subsequent legislation of this colony the lawmaker was content to punish the parties to irregular marriages without affecting the status of the offspring.[659]The clergy of New England, and especially those of Massachusetts, were much agitated over the question of the degrees of relationship which should be prohibited in wedlock. Marriage of first cousins, by affinity as well as by blood, and with a deceased wife's sister was strongly opposed. That of cousins german had been legalized by a statute of Henry VIII. in 1540;[660]and the earliest fruit of this act was themarriage of that monarch with Catherine Howard, first cousin of Ann Boleyn, his former wife.[661]Within less than two years thereafter Catherine lost her head; and Sewall, who like the Mathers regarded such marriages as incestuous, draws a grim moral from her fate.[662]Indeed, the Puritans, were in sore straits, fearing lest the "English Nation," while rejecting the excessive strictness of the Roman church in this regard, had gone "beyond the golden mean towards the other Extream."[663]In their anxiety to obey the Mosaic law they even exceeded its requirements.[664]Already in 1679 the general court, in reply to interrogation, had decided that marriage with a deceased wife's sister was unlawful,[665]thus taking the position which has been stubbornly maintained ever since by the English House of Lords. Interest in the matter seems, however, to have culminated in 1695. In that year a meeting of the ministers of Boston, Charlestown, and Dorchester, with Increase Mather at their head, came to the same conclusion as the general court in 1679.[666]This led directly to the passage of the celebrated law against incestuous marriages of the following June,[667]by which the generalcourt, though not taking "in hand to determine what is the whole breadth of the divine commandment," proceeded, among other prohibitions, to forbid marriage with a wife's sister or niece.[668]For violation of the law, we have already seen, the culprit was condemned, as in the case of adultery, to wear the "scarlet letter." This act[669]remained nominally in force until after the Revolution; but the statute of 1785 in which these prohibitions do not appear was adopted seemingly without discussion.[670]The colonial laws on this subject were not allowed to slumber. From the records of the Connecticut court of assistants, for instance, it appears that in May, 1694, Nathaniel Finch is complained of "for that he hath unlawfully married to Elizabeth Hemmeway," sister "of the said Finch his first wife." The pleas of Finch's attorney are "esteemed to be insufficient, and also of an offensive nature." Accordingly, having considered all the facts of the case, the "rules of God's word, the judgment of most able Divines, and the Laws of this colony," the court finds the "said marriage to be incestuous and unlawful," and therefore declares it "to be wholly null and void;" further relegating the case to the county court to be held at New Haven the next June, "to lay such punishment on the said Finch for his said offence as the nature thereof doth require."[671]While the Massachusetts act of 1695 does not expressly prohibit a woman from wedding her husband's brother, a passage in Sewall'sDiaryshows that such unions were already treated as unlawful. On December 25, 1691, he writes, the "marriage of Hana Owen with her Husband's brother, is declar'd null by the court of Assistants. She commanded not to entertain him; enjoin'd to make a confession at Braintrey before the Congregation on Lecture Day, or Sabbath, pay fees of court and prison," and "to be dismissed."[672]VII. SLAVE MARRIAGESFinally in this connection a word regarding the treatment of slave marriages in New England may not be wholly out of place. With respect to the morality of slavery and the slave trade as viewed by the Puritan the record is perfectly clear. He was no better and no worse than his contemporaries. In his eyes the commerce in human chattels, whether red, black, or white,[673]was as legitimate a business as the handling of West India molasses; though like the Spaniard he may sometimes have excused or extolled it as affording a field for missionary work. "The seventeenth century," observes Weeden, "organized the new western countries, and created an immense opportunity for labor. The eighteenth coolly and deliberately set Europe at the task of depopulating whole districts of Africa, and of transporting the captives, by a necessarily brutal, vicious, and horrible traffic, to the new civilizations of America.... New England entered upon this long path of twistedsocial development—the wanton destruction of barbaric life in the hope of new civilized life, this perversion of the force of the individual barbarian into an opportunity for social mischief—with no more and no less consciousness than prevailed elsewhere at that time. The Winthrops and other Puritan colonists asked and received Indian captives for slaves as freely as any partisan went for loot or plunder."[674]
1. Fine only3marriedcouples£5 (both)1""£3 "1""40s. "1""2. Fine and confession before the congregation or stripes2""3. Fine or stripes15""a) Fine—£5 (both)3""£4 "3""£3 "1""50s. "1""40s. "7""b) Stripes—202 husbands0 wives1512 "2 "101 "13 "
Cases of Fornication by Single Persons in the County Court of Suffolk County, Mass., 1671-80
The most noticeable feature of these cases is the tendency on the part of single men to confess the crime and accept punishment, besides becoming bound as putative fathers. All the convictions for fornication are by confession or pleading guilty.
The most noticeable feature of these cases is the tendency on the part of single men to confess the crime and accept punishment, besides becoming bound as putative fathers. All the convictions for fornication are by confession or pleading guilty.
1. Single women convicted43a) Fine or stripes22£15 or 20 stripes1£5 or {20 stripes1{15 stripes4£3 or {20 stripes1{15 stripes350s. or {15 stripes3{10 stripes240s. or {15 stripes2{10 stripes4b) Stripes alone2140 (20 each in two places)230220111541022. Single men, confession13a) Fine or stripes5£5 or 20 stripes440s. or 15 stripes1b) Stripes alone8303205c) Putative fathers17
while in no case is a single man or woman merely fined. On the other hand, out of twenty married couples punished for ante-nuptial misconduct, fifteen are given the choice of fines or stripes, three are merely fined; and in no instance is whipping alone the penalty decreed. Furthermore, the fines are on the average smaller in these cases than in others, although as regards both fines and stripes the sentences are sadly lacking in uniformity. The conclusion seems irresistible that, in harmony with popular sentiment, the courts, exercising the discretion granted by the statute, were inclined to deal more leniently with the faults of the betrothed than with those of less favored bachelors and spinsters.
Similar evidence is afforded by the incomplete records of the county court of Middlesex for the period 1629-86, supplemented by the Files. These contain in all thirty cases of transgression before marriage, eight of which fall within the ten years covered by the Suffolk records already considered. Most of the severe sentences (Table III) occur in this period and the six years immediately following, although the heaviest fine, twenty pounds for the couple, is imposed in 1663.[581]Seemingly, from the few cases known, single persons were treated more harshly than those who were betrothed.[582]
On presentment by the grand jury[583]or voluntarily confessions were made by wives and husbands before the court; and these documents contain evidence of the close relation
Cases of Fornication before Marriage in the County Court of Middlesex County, Mass., 1649-86[Except 1663-71]
During the same period these records contain five cases of fornication by single persons.
1. Fine only15marriedcouples£20 (together)1""£5 "3""£4 "6""£3 "2""40s. "3""2. Fine or stripesa) Fine10""£1 (together)5""£6 "1""£4 "3""£3 "1""50s. (wife)1b) Stripes10"206 husbands0 wives151 husband0 "103 husband10 "3. Stripes only151 husband (the wife 50s. or whipped)4. Confessions and petitions3 married couples5. Convicted and respited1 married couple
existing between the colonial church and state. On October 31, 1671, for instance, Christopher Wheaton and Martha his wife were sentenced in Boston to make an acknowledgment "in publique at Hull to yeSatisfaction of yeCongregation, & pay twenty Shillings fine," on pain of being whippedten stripes each by the constable.[584]An elaborate "church confession," found among the Middlesex Files, would seem to prove that in another case the decree of the court was obeyed; and that the written acknowledgment made before the congregation was returned to the court for record.[585]
The files and records of the same two counties, supplemented by the record of the superior court, may next be examined for the period of the second charter. The impression made by their contents is decidedly disagreeable and depressing. The coarser and more heinous sexual crimes are growing more frequent, although due allowance must be made for the increase of population. Indeed, the bulk of the records of the general sessions appears to be concerned with sexual immorality of almost every kind.[586]Inquiry is, however, here restricted to the two classes of cases thus far considered. For convenience the material is treated chronologically in two divisions. The first division covers theperiod ending in 1725; and the second the years 1726-80. Within the former period (Table IV) the records of the general sessions of Suffolk for the years 1702-25, inclusive,
Summary of Fornication Cases Before the General Sessions of Suffolk County, 1702-25, and the General Sessions of Middlesex County, 1692-1725
Between 1702 and 1725 the following cases brought conviction before the general sessions for Suffolk county:
Cases of fornication where the woman alone was sentenced104Cases of conception before marriage with fine, and in a few cases fine or whipping for husband, or both husband and wife48Cases of woman fined or whipped, and putative (or acknowledged) father sentenced to maintenance of child44
Between 1692 and 1725 there were the following convictions before the general sessions for Middlesex county (each case stands for both man and woman if both were tried):
Cases of fornication135Cases of fornication and conception before marriage155
yield forty-eight cases of conviction of married couples for pre-nuptial misconduct, as compared with 148 cases of single women sentenced for the same offenses.[587]The correspondingrecords of the general sessions of Middlesex for the years 1692-1725 contain the extraordinary number of 155 cases of the first class, as compared with 135 of the second. In a great many instances the husband or both husband and wife appear "freely and voluntarily" and confess their guilt.
Fornication Cases before the General Sessions of Middlesex County, Mass., for Each Quinquennium, 1726-80[588]
Quinquennium2631364146515661667176Total-----------3035404550556065707580Single women523Appeared and confessed..132412410651321...Confessed on recognizance231239796422...Pleaded guilty9231210411111352...Pleaded guilty and named man13145621181673...Conf. on recogniz'nce and named man104643616111591...Appeared, confessed, and named man415515439151645...Married couples160Appeared and confessed37651631..1...........Pleaded guilty159811...............Pleaded not guilty, but convicted2..1...................Wives[589]31Appeared and confessed213..1......1.......Pleaded guilty3......12674.......Total85115573248337768735274714
This is especially true during the decade following 1715, there being five such confessions at one sitting of the court, four of them on one page of the record.
The results for the later period (Table V) are still more striking. Before the Middlesex court alone, during the fifty-five years commencing in 1726, were 523 cases of singlewomen and 191 cases of married couples; but 189 of these couples were tried during the twenty-five years ending in 1750—there being but two isolated cases of confession after that date—and 181 within the first fifteen years. On the
Penalties Imposed in Cases Comprised in Table V[590]
FineSingleMarriedWivesWomenCouples£12½..1..£91....£612..£51837..£448613£36....50s10..140s242430s9..325s81..20s433..15s20....10s96225s169..164s11....3s13..22s7....1s10..1Total49410932
other hand, 337 single women were convicted during the twenty-five and 257 during the same fifteen years. Again, 118 out of the 181 married couples tried between 1726 and 1740 appeared and, presumably, freely confessed their faults. The leading years in this regard are 1730 with twelve, 1732 with twenty-nine, and 1734 with sixteen confessions. The leading quinquennium is the second (1731-35) with sixty-six confessions as compared with thirty-nine in the first(1726-30) and nineteen in the third (1736-40). To offset these figures we find thirteen presumably voluntary confessions by single women in the second quinquennium, none in the first, and two in the third. These facts seem to point directly to the action of special causes in producing this kind of immorality, or, at any rate, its confession. Whether this action was local for Middlesex cannot positively be determined from these documents alone; although, as will soon appear, other evidence shows that this cannot be assumed. After 1725 the records for Suffolk are incomplete; but it is surprising that during the seven years (September, 1725, to October, 1732) covered by Table VII there were in that county only seven convictions of married couples, not one of whom freely confessed, as compared with forty-eight cases of single women, including one confession.
There can be little doubt that in the eighteenth century, just as in the age preceding, the general cause of this ante-nuptial immorality—and probably also of some part of the similar misconduct of single persons whose engagements were not followed by wedlock—was the custom of solemn pre-contract which still survived. During the second quarter of the eighteenth century the penalties were relatively severe, though not so rigorous as during the period of the first charter; but the facts exhibited in Table VI show that the courts still treated pre-nuptial offenders more mercifully than those who were not married.
To determine the special cause of the sudden rise in the number of confessions during the same period is a more difficult matter. It is not improbable that a suggestion of Charles Francis Adams, regarding another aspect of the problem, may give us a clue to its right solution. Already the practice of church confession of these offenses, in obedience to judicial decree, has been noticed; and independently of the courts, as a religious expiation, such acknowledgmentswere required by the authority of particular churches. In the eighteenth century, if not earlier, under the "seven months rule," the culpable parents were forced to humble
Fornication Cases before the General Sessions of Suffolk County, Mass., September, 1725, to October, 1732[591]
Year17251726172717281729173017311732TotalSingle women:Confessed................1£3 or 10 stripes....1............Pleaded guilty................8£4 or 10 stripes....2............£3 or 10 stripes....2....1......£2 or 10 stripes......1..1..1..Pleaded not guilty, but convicted................3£5 or 10 stripes..........1......10 stripes......1..1......Pleaded guilty and named man................35£5 or 10 stripes..1..............£4 or 10 stripes221..2........£3 or 10 stripes12253431..£2 or 10 stripes......11..13..Came in freely and accused a man................1£2 or 10 stripes............1....Married couples:Fornication before marriage, man alone accus'd................220s. or 10 stripes..........11....Fornication before mar'ge, woman alone accus'd................540s. or 10 stripes..1....11......20s. or 10 stripes11..............Total47887106555
themselves before the whole congregation or else expose their innocent child to the danger of eternal perdition.[592]Yet, inspite of the fact that the clergy had thus devised a punishment more terrible to bear than the fines or stripes imposed by the criminal law, during the very period under consideration the church records show a great increase in the number of confessions. Adams suggests that an explanation may be found in the religious excitement which generally prevailed during the second quarter of the eighteenth century, the period which includes the "Great Awakening" under Whitefield in 1740, the Northampton revival of 1735, "engineered and presided over by Jonathan Edwards," and earlier "harvests" of the same character.[593]At Braintree, for example, there was a vast increase in the number of church confessions during the pastorate of John Hancock, 1726-43. It was "everywhere noticed that the women, and especially the young women, were peculiarly susceptible to attacks of the spiritual epidemic. Jonathan Edwards for instance mentions, in the case of Northampton, how theyoung men of that place had become 'addicted to night-walking and frequenting the taverns, and leud practices,' and how they would 'get together in conventions of both sexes for mirth and jollity, which they called frolicks; and they would spend the greater part of the night in them;' and among the first indications of the approach of the epidemic noticed by him was the case of a young woman who had been one of the greatest 'company keepers' in the whole town, who became 'serious, giving evidence of a heart truly broken and sanctified.' This same state of affairs doubtless then prevailed in Braintree, and indeed throughout New England. The whole community was in a sensitive condition morally and physically."[594]The morbid quickening of the conscience would thus naturally result in a greater number of confessions rather than in an increase of sexual license; and this same cause seems adequate to explain the extraordinary number of confessions which we have found in the contemporary court records.[595]Besides, after the sin had been disclosed before the congregation, an acknowledgment in court would almost necessarily follow. It would be very strange, however, if there were not a considerable increase in immorality. The practice of bundling, asAdams believes,[596]may have afforded ready opportunity. Any violent or protracted disturbance of the mental or nervous equilibrium, often tending to produce sexual excesses, would be sure to find "vent" in so dangerous a custom, especially when sanctioned by the recognized doctrine of betrothal.
Finally it is not without interest to note that the higher legal significance of the "contraction," as compared with that of the Englishsponsalia, is due mainly to the influence of the Jewish law. The code of Moses mentions no fixed ceremonies for concluding marriage.[597]But precisely the same relation as by the Puritans is fixed between marriage and betrothal. For criminal assault upon the betrothed "damsel that is a virgin" and for adultery the death penalty is prescribed.[598]Later, however, the rabbinical law establishes "certain legal formalities for the act of concluding marriage. The act consisted of two distinct parts, intervened by the lapse of a certain time, the betrothment and the nuptials."[599]To constitute a legal betrothment the mere consent of the parties did not suffice. The performance of a solemn act was required. This consisted in the man's giving to his chosen bride in the presence of two witnesses either a written instrument,sh'tar, or a piece of money,kaseph, and saying: "Be thou consecrated (wedded) to me."[600]The contract thus made is not a "mere promiseto marry," with civil consequences for non-fulfilment. "It is the very initiation of marriage. The betrothed parties are in some respects regarded as married, though not yet entitled to the marital rights nor bound to fulfil any of the mutual duties of conjugal life.... The betrothment could be dissolved only through death or a formal bill of divorce."[601]
Among the Jews it was quite customary for the betrothal to be preceded by an "engagement," but it was not legally required.[602]The Puritan went farther in this regard, regulating proposal and courtship, as well as the pre-contract and nuptials, by statute.
The New England contraction or public betrothal, when its social and legal consequences are considered, is thus seen to be an institution of far more historical interest than the scanty attention it has hitherto received would lead one to infer. This is all the more apparent when the accompanying practice of legal courtship is kept in view. Never, perhaps, in any modern society has parental control been so pronounced. But if consent were once given and sealed by a contract in due form, it could not be lightly withdrawn. The early records abound in notices of suits for breach of promise. The colonists were a litigious people; and members even of some of the best families do not hesitate to drag their matrimonial difficulties into court. Sometimes a jilted lover sues his fickle sweetheart; or a forlorn maiden seeks satisfaction from her betrothed spouse. Thus the Massachusetts court "orders that Joyce Bradwicke shall giue unto Alex: Becke the so[=m]e of xxs, for promiseing himmarriage wthout her ffrends consent, & nowe refuseing to [p=]forme the same."[603]Likewise in the Plymouth jurisdiction we find John Sutton complaining "against Mary Russell, in an action of the case, to the damage of two hundred pounds, for engageing herselfe to another by promise of marriage, whenas shee had engaged herselfe by promise of marriage vnto the said John before. The jury find for the plaintiffe fifteen pounds damage, and the cost of the suite which came to 1lb10s6d."[604]But this did not entirely end the matter. In 1662-63 the case was taken up for review, Mary having in the meantime become the wife of John Jacob. After a careful rehearing, the court reaches the curious decision that Mary's "actinges haue bine such ... as may not reflect vpon her disparagement, wee apprehending that what wrong hath bine vnto John Sutton heerin hath bine rather occationed by her father than by ... herselfe, shee haueing heard such thinges concerning the said Sutton as might justly discurrage her, although the truth of these reports wee see not cause to determine." Whereupon, oddly enough, it is decreed "that the abouesaid John Sutton doe pay vnto John Jacob ... the su[=m]e of fifty shillings."[605]
Sometimes a parent joins with his aggrieved child in seeking reparation; as when "Richard Siluester, in the behalfe of his daughter, and Dinah Siluester in the behalfe of herselfe" recover twenty pounds and costs from John Palmer, "for acteing fraudulently against the said Dinah, in not [p=]forming his engagement to her in point of marriage."[606]
The proceedings of the Massachusetts courts contain the record of many similar suits under a variety of conditions. Some are ordinary cases of breach of promise.[607]In 1735 a woman was awarded two hundred pounds and costs at theexpense of her betrothed who after jilting her had married another, although he had first beguiled her into deeding him a piece of land "worth £100."[608]Hopestill Aldrich in 1764 was not so successful. The higher court on appeal declined to give her damage, because after beginning her action against the faithless Darius Daniels she had married David Bowin, "who is still living and is her lawful husband."[609]A number of cases afford further evidence of the danger lurking in the New England doctrine of espousals, the indemnity sought being intended in part to punish personal wrongs committed under cover of pre-contract.[610]
Puritan lovers did not always hesitate to prosecute their parents for refusing marriage when permission had once been given. Such was the fate of Hope Allen, who admitted before the Massachusetts court that "he did give his consent ytyesaid Mr. Deacon should haue his daughter;" and accordingly for breaking his word he was censured, and had to pay a fine of ten pounds for his "irregular procedure."[611]The action might take a still more interesting form, including both the recreant parents and the promised consort in the same complaint. In this way Richard Sutton alleges "against Moses Symonds and Sarah, his wife, and Elizabeth theire daughter, that shee, the said Elizabeth, hath made a promise of marriage vnto him, and is hindered by the parents ... from proceeding with her therin." The court after due consideration decides that Moses ought to pay the said Richard "the su[=m]e of three pounds, for satisfaction for histime and charges spent about the [p=]mises;" but not without kindly releasing the couple from their engagement, "vnless on second considerations they shall see cause to renew theire former couenants."[612]
These illustrations would seem to show that the blighted hopes and disappointed affections of New England lovers were not judicially reckoned at an extortionate figure. But those were the days of "small change" in all domestic affairs. As a matter of fact, the colonists were a close-fisted, bargaining race;[613]and in no respect perhaps were they more prudent than in their matrimonial transactions. Sometimes very careful contracts were executed in court regarding the property rights of the future husband and wife.[614]Often before betrothal and almost invariably before wedlock an exact arrangement was made between the parents touching the marriage portion on either side. The "higgling of dowries," suggests Weeden, was one of the most "singular practices" of New England life.[615]Even paupers were provided a marriage portion at the county's charge.[616]No shrewder hand ata bargain existed than Judge Sewall, whoseDiaryandLetter-Bookare crowded with illustrations of this and other matrimonial customs. In 1712 we find him planning a match between his daughter Mary and young Samuel Gerrish. So he dines with the father and "discourses" with him "about my Daughter Mary's Portion. I stood for making £550 doe: because now twas in six parts, the Land was not worth so much. He urg'd for £600. at last would split the £50. Finally Feb. 20. I agreed to charge the House Rent and Difference of Money, and make it up to £600."[617]
The worthy magistrate was not less thrifty in managing his own courtships, never for a moment allowing mere sentiment to get the better of prudence. From the outset he was lucky; for in 1676, according to tradition, he received as a dowry with his first wife, Hannah Hull, her weight in pine-tree shillings, which her father, the mint-master, measured out to him against her body in his own scales. In reality, his wife brought him much more than this fabled treasure; for six years after the wedding he came into the enjoyment of the mint-master's large estate, thus laying the foundation of his own fortune and official career.[618]Hannah lived with him more than forty years, bearing him seven sons and seven daughters. On her death the judge writes to a friend: "Wife expired on Satterday Oct. 19th, a little before Sun-Sett; and I lost my most constant lover, my most laborious Nurse; which produc'd a Flood of Tears in our Bed Chamber."[619]
Soon, however, he was able to stem the torrent of his grief, for on the sixth day of the next February he enters in his diary: "Wandering in my mind whether to lead a Single or a Married Life."[620]Indeed, several weeks before this, when his wife was hardly two months dead, his mind and feet had begun to wander in the direction of Madam Winthrop,[621]upon whom, in his usual kindly way, he had bestowed certain tokens of his regard.[622]But for the present the charms of Widow Winthrop had to yield to those of Widow Dennison, whose goodly estate he had come to admire through having drawn her husband's will.[623]Attending her home from the funeral of her late consort, he "prayed God to keep house with her."[624]This was in March. Presently he opens serious negotiations. He makes her numerous presents, among which are "A pound of Reasons and Proportionable Almonds;" a "Psalm-Book neatly bound in England with Turkey-Leather;" the "last two News Letters;" "Dr. Mathers Sermons very well bound," and "told her in it we were invited to a wedding;" a "pair of Shoe-buckles, cost 5s3d;" and "Two cases with a Knife and a fork in each; one Turtle shell tackling: the other long with Ivory handles Squar'd, cost 4s6d."[625]In November, after much visiting and chaffering, he came to the point. "I told her 'twas time now to finish our Business: Ask'd her what I should allow her; she not speaking; I told her I was willing to give Two [Hundred] and Fifty pounds per a[=n]um, during her life, if it should please God to take me out of this world before her. She answer'd she had better keep as she was, than give a Certainty for an uncertainty; she should pay dear for dwelling at Boston. I desired herto make proposals, but she made none. I had Thoughts of Publishment next Thorsday, the 6th. But I now seem far from it. May God, who has the pity of a Father, Direct and help me."[626]
This is by no means the end. The courtship drags along, and they continue to "higgle like hucksters and pedlers."[627]"She said she thought twas Hard to part withAll, and have nothing to bestow on her Kindred. I said, I did not intend anything of the Movables, I intended all the personal Estate to be to her. She said I seem'd to be in hurry on Satterday ... which was the reason she gave me no proposals. Whereas I had ask'd her long before to give me proposals in Writing; and she upbraided me, That I who had never written her a Letter, should ask her to write." So the thrifty judge, although his "bowels" did "yern toward Mrs. Dennison," must even decide that God "in his Providence" directed him to "desist."[628]Later the widow grew more kind. On the following Lord's day she came to see him in the evening, walking all the way from Roxbury. She "ask'd pardon if she had affronted me;" and plainly let it be seen that she was not averse to the match, if only she were not called upon to "put all out of her Hand and power" and could "reserve something to bestow" on her deceased husband's friends "that might want." But, says Samuel, "I could not observe that she made me any offer of any part all this while." So "she went away in the bitter Cold, no Moon being up, to my great pain. I saluted her at parting."[629]
Then the judge turned to Widow Tilly, whom he married on the next Thanksgiving day (October 29, 1719), though she pleaded her "Unworthiness of such a thing with muchRespect."[630]But the union was short-lived; for in May of the next year "a very Extraordinary, awful Dispensation" came to the Judge. "About midnight," he writes, "my dear wife expired to our great astonishment, especially mine."[631]
Already by the following December he wants God to "yet again provide such a good Wife for me, that I may be able to say I have obtained Favour of theLord."[632]For in the meantime his mind has been "wandering" again toward Catherine Winthrop. But the gentle widow is now very coy and close at a bargain. After many visits and some interesting love passages,[633]the judge writes, she "was Courteous to me; but took occasion to speak pretty earnestly about my keeping a Coach: I said 'twould cost £100. per a[=n]um: she said twould cost but £40."[634]Clearly the issue was getting too sharply joined; and it is not wholly surprising that the lady was a trifle cool at her suitor's next visit.[635]Later he asked her "when our proceedings should be made publick: She said they were like to be no more publick than they were already. Offer'd me no Wine that I remember." She did not offer to help him on with his coat, nor at his request would she send her servant Juno to light him home.[636]It is to be feared that Catherine had not forgiven her suitor for leaving her for Widow Dennison, and was now getting "even." But the judge stood manfully to his arms. At the next meeting "I told her ... I was come to enquire whether she could find in her heart to leave that House andNeighborhood, and go and dwell with me at the South-end; I think she said softly, Not yet. I told her it did not ly in my Lands to keep a coach.... Told her I had an Antipathy against those who would pretend to give themselves; but nothing of their Estate. I would [give] a proportion of my Estate with my self. And I su[=p]os'd she would do so."[637]It goes without saying that when Sewall made his next call the lady was "not at home." After one or two more futile efforts[638]at coming to terms the grapes began to sour. The aged wooer somewhat spitefully closes this unlucky chapter of his courtships with the ungallant remark that "I did not bid her draw off her Glove as sometimes I had done. Her dress was not so clean as sometimes it had been. Jehovah jireh."[639]Thus Eros regained his sight.
Several other attempts prove not more successful in providing the venerable widower with a suitable place to rest his "weary Head in Modesty."[640]But at last, humbly confessing himself, "aged, and feeble, and exhausted," he offers himself as a husband to Mrs. Mary Gibbs, of Newton, who is all too yielding in her reply.[641]For with this gentle dame the astute wooer, erstwhile so meek, at once proceeds to drive the sharpest bargain in the long history of his courtships. As she had no property to leave him by will, he insists upon the following harsh conditions: "I Rode to Newtown in the Coach, and visited Mrs. Gibbs. Spake of the proposals I had intimated per Mr. H. Gibbs; for her Sons to be bound to save me harmless as to her Administration; and to pay me £100. provided their Mother died before me: I to pay her £50. per a[=n]um during her Life, if I left her a Widow. She said 'twas hard, she knew not how to have her children bound to pay that Sum; she might dye in a little time. Mr.Cotton, whom she call'd spake to the same purpose, spake of a Joynture. I said I was peremptory as to the indemnifying Bond; Offer'd to take up with that alone, and allow her forty pounds per a[=n]um."[642]
These terms, "hard" as they were and again insisted upon with most unromantic bluntness,[643]were at length accepted by the amiable Mary; who, surviving her kindly though grasping spouse, was no doubt by his side, according to his wish, to "carry it tenderly"[644]with him when he passed to his last reckoning.
The Separatist and the Puritan, regarding marriage as "purely a civil contractual relation," logically conceded that "the parties may marry themselves as they may make other contracts." But, "like all other civil institutions, this may be regulated by municipal law. It should therefore be sanctioned by the civil authority;" and for that reason persons may be fined for marrying without observing the forms prescribed by the statutes.[645]Nevertheless such legalrestraint, however wholesome and reasonable, seems to have been resented by the more radical as an interference with individual liberty; though doubtless the disregard of the marriage laws was in part due to the rudeness of an early society.
Instances of self-betrothal and self-giftaseem to have been frequent in all the New England colonies. Thus, in 1678, Edward Wanton was fined £10 by the general court of Plymouth for "marrying himself," and Thomas Boarman paid £5 for the same offense. In 1684 William Gifford was fined fifty shillings for contracting a "disorderly marriage."[646]More interesting is the case of Edward Perry, on Cape Cod, who appears to have been guilty of self-marriage in 1654. For this he was fined £5; and Thomas Tupper, of Sandwich, for neglecting to perform the ceremony, "was 'disallowed' by the court from solemnizing marriages in future."[647]Then "magistrate Prence, when passing by on his return from court to Eastham, was to marry him rightly. Perry refused to be re-married, and was fined £5 more, with the discouraging notice that his fine would be repeated every three months till he complied."[648]
Marriages by the primitive form of "hand-fasting" were not unknown in Massachusetts. An intelligent French refugee, who visited Boston two years after the revocation of the Edict of Nantes, writes that "there are those who practice no Formality of Marriage except joining Hands, and so live in Common."[649]But the most celebrated instance of self-giftais the case of Governor Richard Bellingham, who in 1641 entered into a private marriage with Penelope Pelham, herself "about forming a contract with another."[650]"Two errors more," says Winthrop, "he committed upon it.1. That he would not have his contract published where he dwelt, contrary to an order of court. 2. He married himself contrary to the constant practice of the country."[651]The governor was therefore indicted for his offense by the grand jury; but "he declined to leave his place on the bench" over which he presided, "in order to take a position in the dock, and thus 'escaped both trial and punishment.'"[652]The secretary "postponed the case amidst excitement, and it was not again called up."[653]
In spite of the constantly increasing severity of the penalties, clandestine marriages gave the lawmaker much trouble.[654]This is plainly revealed by the laws, already cited, relating to banns, consent, registration, and celebration,[655]especially by those of Rhode Island. The act of 1647 provides "that no contract or agreement between a Man and a Woman to owne each other as Man and Wife, shall be owned from henceforth threwout the Whole Colonie as a lawfull marriage, nor their Children or Issue so coming together to be legitimate or lawfullie begotten," but such as conform to the statute.[656]The clause relating to the issue of irregularmarriages is noteworthy; for it is contrary to the usual tenor of the colonial laws, which—anticipating the policy of William III.—usually imposed severe penalties upon the offenders without affecting the legitimacy of the children. But even so stringent a remedy did not suffice. A new law in 1665 enforces that of 1647, adding the penalty prescribed for "fornication" for non-observance; but making the important exception in favor of existing irregular marriages "that any persons now living within the confines expressed in our late charter, ... that are reputed to live together as man and wife by the common observation or account of there neighbours before this act was passed, shall not come vnder any of the censures, fines, or penaltyes in any of the fore premised acts or orders, or in this present [order] concearning marriages," though "there may have been some neglect of the due observation of the rules and directions to that end therein contained."[657]It appears that "some persons" had "taken advantage of the law" to render the children of unregistered marriages illegitimate. An explanatory statute was therefore enacted in 1698 declaring such marriages lawful;[658]and in the subsequent legislation of this colony the lawmaker was content to punish the parties to irregular marriages without affecting the status of the offspring.[659]
The clergy of New England, and especially those of Massachusetts, were much agitated over the question of the degrees of relationship which should be prohibited in wedlock. Marriage of first cousins, by affinity as well as by blood, and with a deceased wife's sister was strongly opposed. That of cousins german had been legalized by a statute of Henry VIII. in 1540;[660]and the earliest fruit of this act was themarriage of that monarch with Catherine Howard, first cousin of Ann Boleyn, his former wife.[661]Within less than two years thereafter Catherine lost her head; and Sewall, who like the Mathers regarded such marriages as incestuous, draws a grim moral from her fate.[662]Indeed, the Puritans, were in sore straits, fearing lest the "English Nation," while rejecting the excessive strictness of the Roman church in this regard, had gone "beyond the golden mean towards the other Extream."[663]In their anxiety to obey the Mosaic law they even exceeded its requirements.[664]Already in 1679 the general court, in reply to interrogation, had decided that marriage with a deceased wife's sister was unlawful,[665]thus taking the position which has been stubbornly maintained ever since by the English House of Lords. Interest in the matter seems, however, to have culminated in 1695. In that year a meeting of the ministers of Boston, Charlestown, and Dorchester, with Increase Mather at their head, came to the same conclusion as the general court in 1679.[666]This led directly to the passage of the celebrated law against incestuous marriages of the following June,[667]by which the generalcourt, though not taking "in hand to determine what is the whole breadth of the divine commandment," proceeded, among other prohibitions, to forbid marriage with a wife's sister or niece.[668]For violation of the law, we have already seen, the culprit was condemned, as in the case of adultery, to wear the "scarlet letter." This act[669]remained nominally in force until after the Revolution; but the statute of 1785 in which these prohibitions do not appear was adopted seemingly without discussion.[670]
The colonial laws on this subject were not allowed to slumber. From the records of the Connecticut court of assistants, for instance, it appears that in May, 1694, Nathaniel Finch is complained of "for that he hath unlawfully married to Elizabeth Hemmeway," sister "of the said Finch his first wife." The pleas of Finch's attorney are "esteemed to be insufficient, and also of an offensive nature." Accordingly, having considered all the facts of the case, the "rules of God's word, the judgment of most able Divines, and the Laws of this colony," the court finds the "said marriage to be incestuous and unlawful," and therefore declares it "to be wholly null and void;" further relegating the case to the county court to be held at New Haven the next June, "to lay such punishment on the said Finch for his said offence as the nature thereof doth require."[671]
While the Massachusetts act of 1695 does not expressly prohibit a woman from wedding her husband's brother, a passage in Sewall'sDiaryshows that such unions were already treated as unlawful. On December 25, 1691, he writes, the "marriage of Hana Owen with her Husband's brother, is declar'd null by the court of Assistants. She commanded not to entertain him; enjoin'd to make a confession at Braintrey before the Congregation on Lecture Day, or Sabbath, pay fees of court and prison," and "to be dismissed."[672]
Finally in this connection a word regarding the treatment of slave marriages in New England may not be wholly out of place. With respect to the morality of slavery and the slave trade as viewed by the Puritan the record is perfectly clear. He was no better and no worse than his contemporaries. In his eyes the commerce in human chattels, whether red, black, or white,[673]was as legitimate a business as the handling of West India molasses; though like the Spaniard he may sometimes have excused or extolled it as affording a field for missionary work. "The seventeenth century," observes Weeden, "organized the new western countries, and created an immense opportunity for labor. The eighteenth coolly and deliberately set Europe at the task of depopulating whole districts of Africa, and of transporting the captives, by a necessarily brutal, vicious, and horrible traffic, to the new civilizations of America.... New England entered upon this long path of twistedsocial development—the wanton destruction of barbaric life in the hope of new civilized life, this perversion of the force of the individual barbarian into an opportunity for social mischief—with no more and no less consciousness than prevailed elsewhere at that time. The Winthrops and other Puritan colonists asked and received Indian captives for slaves as freely as any partisan went for loot or plunder."[674]