Chapter XII: Obligatory CIVIL Marriage in the New England Colonies (2)

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

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

[Footnote 417: LODGE, _Short History_, 462, 463; _cf._ SANFORD,
_Hist. of Conn._, 125. BAILEY, _Hist. Sketches of Andover_,
74-78, gives interesting details as to weddings and marriage
settlements; and BROOKS, _Olden Time Series: Days of the
Spinning-Wheel_, 32, 33, reprints specimens of marriage notices
taken from newspapers of the eighteenth century. On these
festivities, advertisements, and settlements see also EARLE,
_Customs and Fashions_, 60-77.]

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

[Footnote 418: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, VI,
403.]

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

[Footnote 419: _Ibid._, VII, 253.]

II. BANNS, CONSENT, AND REGISTRATION

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

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

[Footnote 420: _Plym. Col. Rec._, XI, 13, 190; _cf._ PALFREY,
_Hist. of New England_, II, 20; and BRIGHAM, _Plym. Col. Laws_,
44, 272.]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Footnote 430: DOYLE, _English Colonies_, II, 201 ff.; LODGE,
_Short Hist._, 397 ff.; HILDRETH, _Hist. of U. S._, I, 200;
BANCROFT, _Hist. of U. S._, I, 217, 218, 262.]

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

[Footnote 432: BELKNAP, _Hist. of New Hampshire_, III, 211.]

[Footnote 433: _Provincial Papers_, IV, 832 (1737).]

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

[Footnote 434: _Conn. Col. Rec._, I, 47, 48 (1640), 540;
TRUMBULL, _True Blue Laws_, 106. Compare _The Code of 1650_
(Hartford, 1836), 67, 68.]

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

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

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

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

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

[Footnote 439: ARNOLD, _Hist. of Rhode Island_, I, 208.]

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

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

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

[Footnote 443: RIDER'S _Laws and Acts_ (1705), 12.]

[Footnote 444: _R. I. Col. Rec._, III, 362; also in RIDER'S _Laws
and Acts_ (1705), 44.]

[Footnote 445: _R. I. Col. Rec._, III, 436; _cf._ _ibid._, IV,
395, 396; RIDER, _op. cit._, 50.]

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

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

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

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

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

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

[Footnote 450: _Acts and Laws_ (Newport, 1767), 172-75.]

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

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

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

III. COURTSHIP, PROPOSALS, AND GOVERNMENT OF SINGLE PERSONS

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

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

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

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

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

[Footnote 456: EARLE, _Customs and Fashions_, 36.]

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

[Footnote 458: WEEDEN, _loc. cit._; STILES, _Windsor_, 54.]

[Footnote 459: EARLE, _Customs and Fashions_, 37.]

[Footnote 460: _Acts and Laws_ (1715), 60; see also _Conn. Col.
Rec._, I, 538; TRUMBULL, _Blue Laws_, 104.]

[Footnote 461: In 1682: WEEDEN, _op. cit._, I, 272; MUNRO,
_Bristol, R. I._, 115.]

[Footnote 462: _New Haven Col. Rec._, II, 608; TRUMBULL, _op.
cit._, 258.]

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

[Footnote 463: _Plym. Col. Rec._, XI, 223.]

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

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

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

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

[Footnote 467: _MSS. Records of the County Court for Middlesex_,
III, 21.]

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

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

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

[Footnote 469: Here is the list from Marlboro:

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

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

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

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

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

"To the Hon^rd Court....

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

Your humble seruants."

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

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

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

[Footnote 471: Thus Judge Sewall went home with Widow Denison
from her husband's funeral and "prayed God to keep house" with
her: _Diary_, in 5 _Mass. Hist. Coll._, VII, 179 (March 26,
1718). _Cf._ also EARLE, _Customs and Fashions_, 45, 46.

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

[Footnote 472: EARLE, _op. cit._, 38.]

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

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

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

[Footnote 475: _Mass. Col. Rec._, I, 283.]

[Footnote 476: _Ibid._, II, 86.]

[Footnote 477: _MSS. Records of the County Court of Suffolk_,
113.]

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

[Footnote 478: _Mass. Col. Rec._, I, 198.]

[Footnote 479: _Ibid._, 311.]

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

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

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

[Footnote 483: _MSS. Records of the County Court of Suffolk_, 9.]

[Footnote 484: _MSS. Early Court Files of Suffolk_, No. 867.]

[Footnote 485: _MSS. Records of the County Court of Suffolk_,
279.]

[Footnote 486: _MSS. Records of the County Court of Middlesex_,
III, 63.]

[Footnote 487: _MSS. Early Court Files of Suffolk_, No. 527. For
similar legislation see _New Haven Col. Rec._, II, 600; TRUMBULL,
_Blue Laws_, 243.]

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

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

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

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

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

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

[Footnote 490: WHITMORE, _Col. Laws of Mass._ (1660-72), 129;
_New Haven Col. Rec._, II, 578, and TRUMBULL, _Blue Laws_, 201;
_Conn. Col. Rec._, I, 515, and TRUMBULL, _op. cit._, 69; _New
Hamp. Hist. Coll._, VIII, 12; SHIRLEY, _Early Jurisprudence of N.
H._, 311; _Andros Tracts_, III, 13. _Cf._ a similar law for early
New York: _Duke of Yorke's Laws_, 15.]

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

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

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

[Footnote 494: GOODWIN, _Pilgrim Republic_, 598; _cf._ PALFREY,
_Hist. of New England_, II, 21.]

[Footnote 495: GOODWIN, _op. cit._, 597.]

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

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

[Footnote 497: _Acts and Laws of Conn._ (New Haven, 1769), 144.
Substantially the same provision appears in the _Code of 1643_:
TRUMBULL, _Blue Laws_, 106, 107; _Conn. Col. Rec._, I, 92; in
_The Book of General Laws, 1673_ (Hartford, 1865), 46; and in
_Acts and Laws_ (New London, 1715), 75.]