Chapter XII: Obligatory CIVIL Marriage in the New England Colonies (3)

An elaborate statute of New Haven, for the regulation of proposals, provides "that whosoever within this jurisdiction shall attempt, or endeavor to inveagle, or draw the affections of any maide, or maide-servant, whether daughter, kinswoman, or in other relation, for himself, or for any other person, without the consent of father, master, governor, or such other, who hath the present interest, or charge, or (in absence of such) of the nearest magistrate, whether it be by speech, writing, message, company-keeping, unnecessary familiarity, disorderly night meetings, sinful dalliance, gifts, or any other way, directly or indirectly, every such person (besides all damages which the parent, governor, or person intrusted or interested, may sustain by such unlawful proceedings) shall pay to the plantation forty shillings for the first offence; and for the second offence towards the same party four pounds; and for the third offence he shal be further fined, imprisoned, or corporally punished, as the plantation court, or court of magistrates considering all circumstances, shal determine."[498]

[Footnote 498: _New Haven Col. Rec._, II, 600; TRUMBULL, _op.
cit._, 242. _Cf._ ATWATER, _Hist. of Col. of New Haven_, 362.]

The foregoing act was probably suggested by the Massachusetts law of 1647, which is likewise here presented. It is declared that, "whereas God hath committed the care and power into the hands of parents for the disposing their Children in Marriage, so that it is against rule, to seek to draw away the affections of young maidens under pretence of purpose of marriage, before their parents have given way and allowance in that respect; and whereas it is common practise in divers places for young men irregularly and disorderly to watch all advantages for their evil purposes, to insinuate into the affections of young Maidens by coming to them in places and seasons unknown to their parents for such ends, whereby much evil hath grown amongst us, to the dishonour of God and damage of parties; for prevention whereof for time to come. It is further Ordered, that whatsoever person from henceforth shall endeavour, directly or indirectly, to draw away the affection of any mayd in this jurisdiction, under pretence of marriage, before he hath obtained liberty and allowance from her parents or Governors or in absence of such of the nearest magistrate, he shall forfeit for the first offence five pounds, for the second towards the partie ten pounds, and be bound to forbeare any further attempt and proceedings in that unlawful designe, without or against the allowance aforesayd. And for the third offence upon information or complaint by such parents or Governors to any Magistrate, giving bond to prosecute the party, he shall be committed in prison, and upon hearing and conviction by the next court, shal be adjudged to continue in prison, untill the Court of Assistants shall see cause to release him."[499]

[Footnote 499: WHITMORE, _Col. Laws of Mass._ (1660-72), 172;
_ibid._ (1672-86), 101; _Mass. Col. Rec._, II, 207. _Cf._
FRIEDBERG, _Eheschliessung_, 477, note; NEWHALL, _Ye Great and
General Court_, 349-65, giving interesting examples.]

The courts were not without employment under this statute. In 1658 Paul Wilson appeared before the county court of Middlesex, sitting in Charlestown, "to answer the complaint of Deacon Upham for violent soliciting his daughter against his will." Whereupon the tribunal "admonished Wilson of his evil behavior towards the said Upham and his daughter Priscilla, and ordered him to give bond of ten pounds for his regular behavior towards the said parties." Accordingly the culprit gave bond "yt he will no more frequent the company of Priscilla Upham, nor by no means whether direct or indirect, make any more addresses vnto her without her fathers leave first orderly had & obteined."[500] For a similar offense, in 1672, the county court of Suffolk fined Benjamin Scott five pounds.[501] Two years later, before the same tribunal, Thomas Irons was presented "for procuring Richard Barnum to publish a marriage" between himself and Mary Arnold without her father's leave;[502] while the next February, as we learn from the record, John Lorin stood "convict on his own confession of making love to Mary Willis without her parents consent and after being forwarned by them, £5."[503]

[Footnote 500: _MSS. Records of the County Court for Middlesex_,
I, 131.

In 1662 Marmaduke Johnson, who by his own confession had a wife
in England, was convicted of trying to steal the affections of
the daughter of Samuel Green without his knowledge and consent;
and he was ordered to join his spouse by the first oportunity:
_ibid._, I, 206. The next year Johnson was "fined £20 unless he
give security" so to depart, in the meantime being "committed
until the order is performed": _ibid._, 249. It may be further
noted that on April 7, 1674, a Marmaduke Johnson is spoken of as
"late constable of Cambridge": _ibid._, III, 87.]

[Footnote 501: _MSS. Records of the County Court of Suffolk_,
106.]

[Footnote 502: Irons was fined 20 shillings, and Barnum half that
sum: _MSS. Records of the County Court of Suffolk_ (July 28,
1674), 255, 256. On the same day "Edward Peggy being bound over
for using indirect means 'by powders or other wayes unlawfull to
Engage the affections or desires of women kinde to him' and for
begetting a bastard child"--in particular for illegally "drawing
away the affections of two girls"--was assessed 10 pounds and put
under bonds for good behavior: _ibid._, 261.]

[Footnote 503: _Ibid._ (Feb. 4, 1674-75), 301. The records of the
court of assistants in _Mass. Col. Rec._ (Sept. 1, 1640), I, 299,
300, contain a similar case.]

Although parents might be prosecuted for "unreasonably denying any child timely or convenient marriage,"[504] it is evident that lovers had to be very circumspect in old colonial days. In a community where power to dispose of a son or daughter in wedlock was believed to be the gift of heaven, it is not strange that "allowance" was sometimes hard to gain. Praising the chaste reserve of the gentle "old maid" of Boston whom he had learned to admire, John Dunton thus expresses the dominant view: "I am sure this is most agreeable to the _Virgin modesty_, which should make Marriage an act" rather of "obedience" than "choice." "And they that think their Friends too _slowpaced_ in the matter give certain proof that lust is the sole motive."[505] Nor was the average New England house-father at all likely to allow sentiment to get the better of prudence in seeking a match for his child. He was more apt to be governed by a spirit of cold calculation which never for an instant lost sight of the "main chance." Judge Sewall, for example, can hardly be called "slowpaced" in providing his daughters with wooers. He superintends the whole "business" of love-making with never-flagging zeal. Poor, timid daughter Betty is fairly worried into matrimony, perhaps as the only sure way of escaping her father's nagging. What a procession of "captains" and "persons of worth" he parades before the reluctant girl before he succeeds in gaining his will! The first who "wished to speak with her" is Captain Tuthill, who appears as a suitor when she is but seventeen years of age. After the judge had made careful and satisfactory inquiry as to the captain's estate--which he finds valued at £600 or £700--and the young man "in good Business, and like to be in better;"[506] and after having his daughter read to him about the courtship of Adam and Eve "as a soothing and alluring preparation for the thought of matrimony,"[507] the lover is invited to call. Of this visit and its surprising result Sewall thus writes in his _Diary_: "At night Capt. Tuthill comes to speak with Betty, who hid her self all alone in the coach for several hours till he was gon, so that we sought at several houses, till at last came in of her self, and look'd very wild."[508] A number of others in rapid succession have little better luck with the coy maiden. The next fall, however, on returning from a journey to Rhode Island, the judge finds his "family in health, only disturb'd at Betty's denying Mr. Hirst." A month later he sadly records that he supposes even this suitor has "taken his final leave."[509] Nevertheless two days after, on October 26, 1699, he addresses Betty at "Brantry," where she had gone on a visit, the following characteristic letter:

"Mr. Hirst waits upon you once more to see if you can bid him welcome. It ought to be seriously considered, that your drawing back from him after all that has passed between you, will be to your Prejudice; and will tend to discourage persons of worth from making their Court to you. And you had need well to consider whether you are able to bear his final Leaving of you, howsoever it may seem gratefull to you at present. When persons come toward us, we are apt to look upon their Undesirable Circumstances mostly; and therefore to shun them. But when persons retire from us for good and all, we are in danger of looking only on that which is desirable in them to our wofull Disquiet. Whereas 'tis the property of a good Balance to turn where the most weight is, though there be some also in the other Scale. I do not see but that the Match is well liked by judicious persons, and such as are your Cordial Friends, and mine also.

[Footnote 504: Law of 1641: WHITMORE, _Col. Laws of Mass._
(1660-72), 137.]

[Footnote 505: DUNTON, _Life and Errors_, I, 103; _idem_,
_Letters from New England_, 101, 102.]

[Footnote 506: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V,
490.]

[Footnote 507: EARLE, _Customs and Fashions_, 57.]

[Footnote 508: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V,
491.]

[Footnote 509: _Ibid._, 503.]

"Yet notwithstanding, if you find in yourself an i[=m]ovable, incurable Aversion from him, and ca[=n]ot love, and honour, and obey him, I shall say no more, nor give you any further trouble in this matter. It had better be off than on. So praying God to pardon us, and pity our Undeserving, and to direct and strengthen and settle you in making a right Judgment, and giving a right Answer, I take leave, who am, dear child, your loving father. Your mother remembers to you."[510]

[Footnote 510: SEWALL'S _Letter-Book_, in 6 _Mass. Hist. Coll._,
I, 213.]

Either this letter had the desired influence or Betty was unable to endure the "wofull disquiet" of a "final leaving;" for a year later it stands written that "Mr. Grove Hirst and Elizabeth Sewall are married by Mr. Cotton Mather."[511]

[Footnote 511: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, VI,
24. In like spirit the judge manages the marriage of his daughter
Mary with Sam Gerrish: SEWALL'S _Letter-Book_, in 6 _Mass. Hist.
Coll._, I, 379; _Diary_, in 5 _Mass. Hist. Coll._, V, xxxviii;
VI, 250, 251, 263. On these and other illustrations of New
England courtship see EARLE, _Customs and Fashions_, 56 ff.]

IV. PRE-CONTRACTS, BUNDLING, AND SEXUAL IMMORALITY

The colonists were extremely anxious to restrain vice by legislation. The whole field of private morals was brought under the purview of the magistrate. Unchastity and sexual crimes, especially, they were determined to prevent at all hazards; and, in consequence, the early colonial and court records are far from pleasant reading. Conjugal infidelity is especially abhorred by the lawmaker. Originally, in all the New England colonies save Rhode Island and Plymouth, death was the penalty prescribed for adultery with a "married or espoused wife." In the New World the Puritan thus actually realized what Luther, Hooper, and other Reformation Fathers ardently desired as an ideal fulfilment of the Mosaic code.[512] The capital law of Massachusetts, at any rate, was not a dead letter, as is clearly shown by the records of the early period. The only attempt to put in force the original act of 1631 was, indeed, a failure. It appears that in 1637 two men and one woman were convicted; but on the ground that the statute had been "made by the court of assistants by allowance of the general court," and for fear lest it had not been "sufficiently published," the extreme penalty was not administered. Instead the culprits were whipped and then banished on pain of death should they return.[513] The act of 1631 was, however, at once confirmed,[514] and it remained in force until superseded by the "Body of Liberties," whose provision on this point was not abrogated during the period of the colonial charter. Under the law as thus constituted two persons were condemned and executed in 1644.[515] Further, in his _Magnalia_ Cotton Mather mentions the execution of an adulterer from Weymouth.[516] These are the only cases of capital punishment for this offense yet discovered; but a number of persons narrowly escaped it, where the evidence seems sufficient to warrant the death penalty. Apparently the courts shrank from pronouncing sentence according to the full rigor of the law,[517] satisfying themselves with lesser punishments, such as imprisonment, banishment,[518] or whipping.

[Footnote 512: _Mass. Col. Rec._, I, 92 (1631); WHITMORE, _Col.
Laws of Mass._ (1660-72), 55 ("Body of Liberties," 1641), 128;
_ibid._ (1672-86), 15; _New Haven Col. Rec._, II, 577; TRUMBULL,
_Blue Laws_, 200; _Conn. Col. Rec._, I, 77; TRUMBULL, _op. cit._,
60; _New Hamp. Prov. Papers_, I, 385 (Cutt Code). Beginning with
the "Body of Liberties," 1641, the capital law of Massachusetts
cites Lev. 20:19; 18:20; Deut. 22:23, 24; and the laws of the
other colonies are supported by the same or like passages of the
Jewish Code.]

[Footnote 513: The "elders" being appealed to promptly decided
that the three persons then lying in prison should be put to
death, "if the law had been sufficiently published." But for
the reasons named in the text the general court thought it was
"safest that these persons should be whipped and banished":
WINTHROP, _Hist. of New England_, I, 309; _Mass. Col. Rec._, I,
198, 202, 203, 225. Compare the excellent monograph of DAVIS,
_The Law of Adultery and Ignominious Punishments_, 6-11, who
gives the details regarding this case and the law of 1631; and
calls attention to the English act of 1650, which classes incest
and adultery among felonies, citing thereon PIKE, _Hist. of Crime
in England_, II, 182; and BLACKSTONE, _Commentaries_, IV, 64.]

[Footnote 514: March, 1637-38. "The law against adultery made
by the Particular Court in October, 1631, is confirmed, that
whosoever lieth with another man's wife, both shall be punished
by death; and this is to be promulgated."--_Mass. Col. Rec._, I,
225. This law was confirmed in 1640, the act of 1631 being then
formally repealed: _ibid._, I, 301.]

[Footnote 515: In 1643-44, at a quarter court held in Boston,
"James Brittanie being found guilty of adultery with Mary
Latham, he was condemned to death. Mary Latham being found
guilty of adultery with James Brittanie, she was condemned to
death."--_Record of the Court of Assistants of Mass. Bay Colony_,
1641-44 (from the Barlow MS.) in WHITMORE'S _Bibliographical
Sketch of the Laws of Mass._, xlii. According to WINTHROP, _Hist.
of New England_, II, 157-59, these persons were executed.]

[Footnote 516: DAVIS, _The Law of Adultery_, 15, 16.]

[Footnote 517: Thus on Sept. 7, 1641, for adulterous practices
a man was "censured to bee sent to the gallos w^{th} a roape
about his neck, & to sit upon the lather an houre, the roapes end
throwen over the gallos, so to returne to prison."--_Mass. Col.
Rec._, I, 335; _cf._ DAVIS, _op. cit._, 15. In 1645 Henry Dawson
came near suffering the extreme penalty: WINTHROP, _op. cit._,
II, 305. Three years later the "Co^rte acquit Elisa : Pennion of
the capitall offence charged upon her by 2 sev^rall inditements
for adultery," but sentence her to be "whiped" in Boston and
again "at Linn w^{th}in one month" (1648): _Mass. Col. Rec._, II,
243. Still more striking are the cases of Elizabeth Hudson and
Bethia Bulloine (Bullen), "married women and sisters," carried
from the county court at Boston before the assistants in 1667.
On a special verdict by the jury the latter tribunal sentenced
each "to be by the Marshall Generall ... on y^e next lecture day
presently after the lecture carried to the Gallowes & there by
y^e Executioner set on the ladder & with a Roape about her neck
to stand on the Gallowes an half houre & then brought ... to the
market place & be seriously whipt w^{th} tenn stripes or pay the
Sume of tenn pounds," standing committed till the sentence be
performed: _MSS. Early Court Files of Suffolk_ (Sept. 11, 1667),
No. 821. Whether this sentence was for adultery as charged or for
"lascivious carriage" we are not informed. In NOBLE'S _Records of
the Court of Assistants_, I, 56, 57, 70, 71, 73, 74, 114, 115,
240, 252, are ten cases of punishment by rope and gallows and
whipping instead of death, the jury plainly avoiding the penalty
for adultery under the law.]

[Footnote 518: Under date of Sept. 2, 1674, the Suffolk Files
contain a petition from a husband praying that his wife--for
adultery banished to Rhode Island the preceding year--might "be
allowed to return in peace." His petition was denied, although
he avers that through his wife's absence "his life is most
uncomfortabell," having "no Relation at all that liveth with
him and it being low with him and not abell to ... pay Rent in
seuerall places & not willing to Remaine away from the things
of god ... to goe to liue in a place and with such as he never
delighted in."--_MSS. Early Court Files of Suffolk_, No. 1325.]

In Plymouth the death penalty for adultery seems never to have been established.[519] Instead, the "scarlet letter," a punishment even more terrible to bear, was there adopted as a permanent badge earlier than in any other colony; while in England it appears never to have been so employed for any crime.[520] So far as known, the oldest typical case of bearing such a "stigma" continuously for adultery occurred in 1639. In that year a woman was sentenced to be "whipt at a cart tayle" through the streets, and to "weare a badge vpon her left sleeue during her aboad" within the government. If found at any time abroad without the badge, she was to be "burned in the face w^{th} a hott iron."[521] Two years later a man and a woman for the same offense were severely whipped "at the publik post" and condemned while in the colony to wear the letters _AD_ "vpon the outeside of their vppermost garment, in the most emenent place thereof."[522] So the custom was already developed in judicial practice when the oldest statute providing for the "scarlet letter" appeared in 1658. It was then enacted "that whosoeuer shall comitt Adultery shalbee seuerly punished by whiping two seuerall times; viz: once whiles the Court is in being att which they are convicted of the fact and 2^{cond} time as the Court shall order; and likewise to weare two Capital letters ziz; AD cut out in cloth and sewed on theire vpermost Garments on theire arme or backe; and if at any time they shalbee taken without the said letters whiles they are in the Gou^rment soe worn to bee forth with taken and publickly whipt."[523]

[Footnote 519: But the law is not entirely clear: see _Plym. Col.
Rec._, XI, 12; and the comments of DAVIS, _The Law of Adultery_,
16.]

[Footnote 520: See the facts collected by DAVIS, _op. cit._,
16-32. For Massachusetts, between 1633 and 1681, are a number
of sentences to wear a badge for offenses other than adultery,
such as drunkenness, theft, wanton behavior, incontinence, or
the disturbing of public worship. In most instances the mark is
to be worn temporarily; but in three cases it is a continuous
punishment. Thus on March 4, 1633-34, for drunkenness, Robert
Coles is "sentenced to be disfranchised, and to wear about his
neck, and to hang about his outer garment a D made of red cloth
set upon white, to continue for a year and not to leave it off at
any time when he should come among company."--DAVIS, _op. cit._,
18; _Mass. Col. Rec._, I, 112. This appears to be the earliest
reference to a _red_ badge placed upon the outer garments. See
also the case cited by Davis from JOSSELYN'S _Account of Two
Voyages to New England_ (VEAZIE'S reprint, Boston, 1865), 178,
179, occurring either in Massachusetts or Plymouth prior to
1671; the similar case of sentence to wear a "Roman B cut out
ridd cloth," for unclean and lascivious behavior and blasphemous
words: in _Plym. Col. Rec._, III, 111, 112 (March 5, 1656-57);
and one in _Mass. Col. Rec._ (Sept. 3, 1639), 269.]

[Footnote 521: _Plym. Col. Rec._, I, 132.]

[Footnote 522: _Ibid._, II, 28 (1641).]

[Footnote 523: _Ibid._, XI, 95, 172.]

The Plymouth statute was copied into the Cutt Code for New Hampshire in 1679-80.[524] By the act of 1701, taken from the Massachusetts law of 1694, the initial letter is still prescribed;[525] and down to its repeal in 1792 the law was frequently enforced by the courts.[526]

[Footnote 524: _New Hamp. Prov. Papers_, I, 384-86.]

[Footnote 525: By the marriage act of 13 W. III., 1701: _New
Hamp. Prov. Papers_, III, 224. This act is retained in _Acts
and Laws of New Hamp._ (Portsmouth, 1761), 53, 54; and _ibid._
(Portsmouth, 1771), 10, 11.]

[Footnote 526: There is a discussion of several cases in SHIRLEY,
"Early Jurisprudence of New Hamp.," _Procds. New Hamp. Hist.
Soc._ (1876-84), 279 ff.]

It is an evidence of the more humane tendency of Rhode Island legislation that neither death nor the scarlet badge seems ever to have been prescribed for adultery, although the offense was otherwise harshly punished. The culprit is to be "publickly set on the Gallows in the Day Time, with a Rope about his or her Neck, for the Space of One Hour; and on his or her Return from the Gallows to the Gaol, shall be publickly whipped on his or her naked Back, not exceeding Thirty Stripes; and shall stand committed to the Gaol of the County wherein convicted, until he or she shall pay all Costs of Prosecution."[527]

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

In Connecticut a brand appears to have superseded the death penalty at least by 1673, as shown in the code of that year. The provision of this code is retained almost exactly in the compilation of 1769, requiring "that whosoever shall commit adultery with a Married Woman or one Betrothed to another Man, both of them shall be severely Punished, by Whipping on the naked Body, and Stigmatized or Burnt on the Forehead with the Letter _A_, on a hot Iron: And each of them shall wear a Halter about their Necks, on the outside of their Garments, during their Abode in this Colony, so as it may be Visible: And as often as either of them shall be found without their Halters, worn as aforesaid, they shall, upon Information, and Proof of the same, made before an Assistant or Justice of the Peace, ... be Whipt, not exceeding Twenty Stripes."[528]

[Footnote 528: _Acts and Laws of Conn._ (New Haven, 1769), 7;
_The Book of Gen. Laws, 1673_ (Hartford, 1865), 2, 3; nearly the
same in _Acts and Laws_ (New London, 1715), 4, and _ibid._ (New
London, 1750), 7.]

As a detail of interest it may be observed that nowhere save in Connecticut is the continuous wearing of a halter provided for by statute; although for offenses other than adultery several decisions show that during the seventeenth century this punishment was employed in the Bay Colony.[529] Furthermore, in Connecticut, as will hereafter appear, the law of incest differs from that of adultery in not requiring a rope to be so worn.

[Footnote 529: In 1654, for rape, a man, besides being whipped
in Boston and again in Watertown, is sentenced during the
court's pleasure to wear a rope around his neck, the end of it
"hanging downe two feete long." If found at any time without the
rope "aboue forty rodd from his house," he is to be whipped:
_Mass. Col. Rec._, IV, Part I, 212. There is a similar case in
1642: DAVIS, _The Law of Adultery_, 30. That such sentences
were executed is shown in a realistic way by a petition of 1670
preserved in the Suffolk Files. William Stacey, suffering for
some offense not mentioned, prays "that the rope which he is
forced to wear around his neck may be taken off. In answer the
Secretary is required to send a copy of the Court's sentence to
the Constable of Charlestoun that he may see that the sentence
requiring the rope to be worn outside the clothes is carried
out."--_MSS. Early Court Files of Suffolk_, No. 988. On May 6,
1646, "Elizabeth Fairefeild" petitioned the court of assistants
that her husband might be discharged "from y^t pte of y^e censure
inflicted on him for his notorious evills, of wearing y^e rope
about his necke." He was, however, compelled to wear the rope six
years more; for it was not until 1652 that his faithful wife's
prayer was granted: _Mass. Col. Rec._, III, 67, 161, 273.]

The statute of Massachusetts prescribing the death penalty for adultery did not survive the fall of the charter. So in 1794 the scarlet letter was substituted.[530] The act published on June 20 of that year, and remaining in force until after the close of the provincial era, varies in several important details, though not essentially, from the laws of Plymouth and Connecticut already presented. The offenders "shall be set upon the gallows by the space of an hour, with a rope about their neck, and the other end cast over the gallows; and in the way from thence to the common goal shall be severely whip'd, not exceeding forty stripes each." Also the offenders "shall forever wear a capital A, of two inches long and proportionate bigness, cut out in cloth of a contrary color to their cloaths, and sewed upon their upper garments, on the outside of the arm, or on their back, in open view." If "found without their letters so worn, during their abode in this province, they shall, by warrant from a justice of peace, be forthwith apprehended and ordered to be publicly whip'd, not exceeding fifteen stripes, and so from time to time, _toties quoties_."[531]

[Footnote 530: Already in 1673, for having an illegitimate child
and imposing it on her husband, a woman had been sentenced by
the court, "if found in this Colony two months after this date
that shee stands in the markett place on a stoole for one hower
w^{th} a paper on hir breast w^{th} y^e Inscription THVS I STAND
FOR MY ADVLTEROVS AND WHORISH CARRIAGE and that on a lecture day
next after the lecture and then be seuerely whipt w^{th} thirty
stripes."--NOBLE'S _Records of the Court of Assistants_, I, 10.]

[Footnote 531: _Acts and Resolves_, I, 171. This provision seems
to have been retained until it was omitted in the act of Feb. 17,
1785: _The Perpet. Laws of the Com. of Mass._ (Boston, 1789),
203, 204.]

Apparently writers have thus far failed to discover positive evidence that the provision of this act regarding the capital letter was ever carried out. A search in the manuscript records of the superior court of judicature, however, has disclosed several interesting cases. The earliest sentence occurred in March, 1707, when Mathew Fuller and Hannah Parker were indicted before a superior court at Plymouth. In the exact terms of the statute Hannah was sentenced to be set on the gallows, receive thirty stripes upon her naked back, and forever after to wear the capital _A_. But, singularly enough, her paramour was acquitted, no reason being assigned therefor either in the court record or in the files.[532] Again in 1721 Jemima Colefix, for sinning with a free negro and bearing a mulatto child, received a similar sentence; and in this case also the accused man was acquitted of being the putative father as had been charged.[533] The next case is dated February 9, 1730-31; and it shows that men as well as women had to endure this penalty. Before a court held in Boston "the jurors present John Warren, miller, and Rachel Gould for adultery," both being married persons. Although they pleaded not guilty, they were each set on the gallows, given thirty-nine stripes, and condemned to wear the capital letter.[534] Twenty years later, on September 26, 1752, "Daniel Bayley, cooper, and Mary Rainer" received the same punishment, except that they each suffered forty stripes, the full number allowed by the statute.[535] Finally after the lapse of thirty years more, just as the War of Independence was drawing to a close, we learn from the records that, following the usual stripes and exposure on the scaffold, Jerusha Doolittle was condemned to wear the fatal _A_ as a badge of shame "forever."[536]

[Footnote 532: _MSS. Records of the Superior Court of
Judicature_, III (1700-14), fol. 206. This decree may not
actually have been carried out. The record concludes, "she being
big with child the sentence was suspended for the present."]

[Footnote 533: _Ibid._ (May 2, 1721), IV, foll. 355, 356.
According to the _MSS. Early Court Files of Suffolk_, No. 15,180,
the order of execution to the sheriff says she was convicted
on her own confession and accused the negro Humphers of being
the father. The woman was apparently an experienced sinner.
Fifteen years earlier "Jemima Colefix ... being presented ... for
whoredom with a Negro, appeared and owned the same but that it
was before marriage with her present Husband." Severely whipped
twenty stripes, costs, and stands committed: _MSS. Records of the
Court of General Sessions of Suffolk_ (Jan. 27, 1706), I, 144.]

[Footnote 534: _MSS. Records of the Superior Court of Judicature_
(1730-33), fol. 49.]

[Footnote 535: _Ibid._ (1752-53), fol. 190. The _MSS. Early Court
Files of Suffolk_, No. 29,729, show that on this conviction
without further proof "George Rainer [Raynord]," Mary's husband,
got a complete divorce. The statutory limit of forty stripes was
originally fixed according to the "law of God": WINTHROP, _Hist.
of N. E._, II, (ed. 1825-26), 250.]

[Footnote 536: _MSS. Records of the Supreme Judicial Court_
(1781-82), leaf 41. Besides the cases of conviction discussed
in the text, there are in the records a number of instances of
acquittal for the same offense. In the _MSS. Early Court Files
of Suffolk_ (May 28-30, 1700), No. 4715, is an interesting
example of extradition for adultery; and the survival of the
ancient "chattel" interest of the husband in the wife is
revealed by three damage suits for trespass on account of
alleged assault upon, and in one for detaining, the wife: _MSS.
Records of the Superior Court of Judicature_ (1763-64), fol.
70; _ibid._ (1767-68), fol. 163; _ibid._ (1775-78), fol. 144;
_ibid._ (1739-40), fol. 286. A similar case of "drawing away the
affections" of a daughter may be found in _MSS. Early Court Files
of Suffolk_ (1671-72), No. 1100.]

This closes the list of cases found in which the stigma is referred to. On the other hand, there are a number of sentences for adultery, or for what would ordinarily be so regarded, where this penalty is not imposed. These are the cases of semi-adulterous conduct, nominally provided for by the act of 1694, in which there is either no charge or not sufficient evidence of absolute transgression.[537] Usually one and sometimes both of the culprits are married. Fines, stripes, and occasionally banishment are the penalties imposed. As in the early period, there is manifestly a hesitation to urge conviction for "adultery" so as to involve the extreme penalty of the scarlet letter. The courts thus seem to favor a strict construction of the statute, giving the accused the benefit of the more lenient interpretation. In several cases the jury declines to convict for the offense charged where the evidence would clearly seem enough to sustain a verdict.[538]

[Footnote 537: These convictions are usually not for "adultery,"
but for being in bed together, according to a clause of the
act of 1694 providing that when a man is found in bed with
another person's wife each offender shall receive not more than
thirty stripes, unless one was surprised and not consenting.
For examples, some of them acquittals and some convictions, see
_MSS. Records of the Superior Court of Judicature_, I (Oct.
30, 1694), fol. 129; _ibid._, III (May 7, 1700), foll. 10, 11;
_ibid._, 1736-38 (Aug. 8, 1738), fol. 209; _ibid._, 1757-59 (Aug.
1, 1758), 391; _ibid._, 1757-59 (Feb. 21, 1759), 554; _ibid._,
1760-62 (Sept. 16, 1760), foll. 122, 123; _ibid._, 1763-64 (Jan.
25, 1763), fol. 11; _ibid._, 1763-64 (April 26, 1763), fol. 44;
_ibid._, 1767-68 (April 12, 1765), fol. 164; _MSS. Records of
Gen. Sessions of Suffolk_ (April 2, 1717), II, 151.

For the earlier period the Athenæum copy of the _MSS. Records of
the County Court of Suffolk_, 34 (March 17, 1671-72), 113 (Jan.
28, 1672-73), 585 (May 5, 1679), 633 (Jan. 27, 1679-80), contains
four analogous cases; and there is one in _MSS. Records of the
County Court of Middlesex_ (April 1, 1684), IV, 97.]

[Footnote 538: Thus at a superior court held at Falmouth for
Cumberland and Lincoln counties, June 28, 1763, the "jurors
present John Lawrence, husbandman, and Mary Lawton, _both
married_, for adulterously dwelling together for five years,
frequently lodging together in the same bed knowing each other
to be married, being found adulterously in bed together and not
surprised but consenting, and having carnal knowledge together.
John was arraigned, pleaded not guilty, and the jury returned
a verdict of guilty except to the charge of having committed
adultery. 30 stripes and recognition in £100 to keep the peace."
[Mary not tried.]--_MSS. Records of the Superior Court of
Judicature_ (1763-64), fol. 90. So also before a superior court
held at Worcester, April 20, 1773, Joshua Phillips, laborer,
presented by the jury for "committing _adultery_" with Mary,
wife of Edward Rice, was acquitted. Then the jurors present them
both "for being found at divers times in bed together.... They
pleaded not guilty. Convicted. Joshua fined £20 and costs. Mary
20 stripes and costs."--_Ibid._ (1773-74), foll. 36, 38.]

Throughout New England, Rhode Island alone excepted, persons guilty of incest--that is to say, of uniting within the degrees of consanguinity or affinity legally forbidden--were stigmatized with an initial letter precisely as in the case of adultery. An act of Massachusetts in 1692, "for the punishing of capital offenders," makes this offense a felony punishable with death.[539] Because some of the "articles" dealing with capital crimes, among which is incest, "were conceived in very uncertain and doubtful terms," and because in such cases the penalty of death was not "conformable to y^e Laws of England," the act was disallowed by the privy council in August, 1695.[540] However, in June of the same year a new act for the prevention of incestuous marriages had been adopted by the general court; and this remained in force during the provincial era. By it the forbidden degrees are enumerated in harmony with the English ecclesiastical law. For violation of its provision exactly the same penalty in the same words is imposed as by the statute of 1694 for the punishment of adultery, except that in place of _A_ a capital _I_ is to be continuously worn.[541] This act of 1695 was adopted by New Hampshire in 1714,[542] and by Connecticut in 1702, the provision regarding the initial letter reappearing in the statute books of the latter commonwealth until 1821.[543]

[Footnote 539: _Acts and Resolves_, I, 56 (Oct. 29).]

[Footnote 540: See the "Letter from the Privy Council," _Acts and
Resolves_, I, 56, note; and compare DAVIS, _The Law of Adultery_,
12, 13.]

[Footnote 541: _Acts and Resolves_, I, 208-10.]

[Footnote 542: By 13 Anne: in _Acts and Laws_ (Portsmouth, 1761),
55, 56; and _ibid._ (Portsmouth, 1771), 42, 43.]

[Footnote 543: Revision of 1702, 73; _Acts and Laws_ (New London,
1715), 74-76; _ibid._ (New London, 1750), 145; _ibid._ (New
Haven, 1769), 145; _ibid._ (New London, 1784), 136.]

In Massachusetts the legal stigma for incest was often imposed by judicial sentence. As already noticed by Davis, such a sentence in 1743 was executed upon Andrew Fleming, of Groton, who had first been set on the gallows for an hour and whipped forty stripes.[544] Hitherto no other examples of wearing the capital _I_ seem to have been discovered. But a careful search in the manuscript records of the superior court for the period ending in 1780 has brought to light five additional cases. The first of these occurred in 1729 and the last in 1759. In every instance the culprit is punished with rope and gallows, stripes, and the scarlet letter.[545]

[Footnote 544: This case is in _MSS. Records of the Superior
Court of Judicature_ (1740-42), fol. 264. From the Suffolk Files
(360-66, 557) DAVIS, _The Law of Adultery_, 13, 14, quotes the
warrant of the sheriff for the execution; and also a notice of
the case from the _Boston Weekly News-Letter_ of Thursday, Feb.
10, 1743, stating that the daughter Elizabeth, with whom the
crime was committed, had absconded.]

[Footnote 545: The five cases are as follows: (1) Salem, Oct. 28,
1729: Peter Harding, tailor, for having carnal knowledge with his
daughter; gallows an hour, thirty-nine stripes, and capital _I_;
_MSS. Records of the Superior Court of Judicature_ (1725-30),
fol. 274. (2) Worcester, Sept. 19, 1752: Jonathan Fairbanks,
husbandman, and Sarah Armstrong, his wife's daughter; Jonathan
sentenced as above, except twenty stripes: _ibid._ (1752-53),
fol. 181. (3) Springfield, Sept. 24, 1754: Joseph Severance and
Eunice Classon, his wife's sister; Joseph sentenced as above,
except thirty stripes. (4) Eunice, _particeps criminis_ in
the preceding case, receives the same sentence, except twenty
stripes: _ibid._ (1755-56), fol. 341. (5) Cambridge, Aug. 7,
1759: Judah Clark and Huldah Dudley, his wife's daughter; Huldah
sentenced as above, except thirty stripes: _ibid._ (1757-59),
655.]

The New England Puritans were, of course, very serious in their efforts to check sexual immorality. Their laws are characteristic of the age. As yet small progress had been made in enlightened theories of crime and its punishment. Besides they were steeped to the core in Hebraism. More or less as a religious duty they accepted and re-enacted the harsh precepts of the primitive Jewish code. It is not a little curious, however, to see them preserving an ancient English usage, almost extinct in the mother-country--in some instances regulating it by statute--which "thwarted their endeavors for complete propriety."[546] This was the custom of pre-contract, contraction, or betrothal, which everywhere in New England was celebrated with due solemnity. Such was the case in Massachusetts.[547] By the Connecticut statute, as already noted, the "contract" was carefully distinguished from the "covenant;" and because many persons entangle themselves by rash and inconsiderate promises for their future joining in marriage, the act of 1640 requires eight days' public notice of the betrothal, after which a second period of eight days must elapse before the covenant is sealed.[548] The pre-contract was in use also in New Hampshire[549] and Plymouth. In the latter jurisdiction the "couple--having the consent of the parents or guardians, in the case of minors--made before two witnesses a solemn promise of marriage in due time, the ceremony having the formality of the magisterial weddings then in vogue."[550]

[Footnote 546: GOODWIN, _Pilgrim Republic_, 599, 600.]

[Footnote 547: COTTON MATHER, in his life of Danforth, says:
"After his Contraction, according to the old usage of New
England, unto the virtuous daughter of Mr. Wilson (whereat
Mr. Cotton preached the sermon), he was married unto that
gentle-woman, in the year 1651."--MATHER, _Magnalia_, IV, c. 3,
§ 6, Vol. II, 50. _Cf._ DEXTER, _Congregationalism_, 458 n. 166,
who cites also a statement in MATHER'S _Ratio_, 112; likewise
WINTHROP, _Hist. of New England_, II, 382 n. 2, whose mistake has
already been mentioned. Compare EARLE, _Customs and Fashions_, 68
ff., who gives the "texts" of some of the betrothal sermons.]

[Footnote 548: _Conn. Col. Rec._, I, 47, 48.]

[Footnote 549: SHIRLEY, "Early Jurisprudence of New Hamp.,"
_Procds. New Hamp. Hist. Soc._ (1876-84), 308.]

[Footnote 550: GOODWIN, _Pilgrim Republic_, 600; _cf._ _Plym.
Col. Rec._, XI, 172.]

Undoubtedly pre-contract was derived from the English "espousals," which, it has already appeared, were a direct survival of the _beweddung_ of the Anglo-Saxon laws. But in New England the betrothal gained a peculiar legal significance. "The betrothed woman was put, both by law and social custom, one step above the woman who was not betrothed, and one step below the woman who was married. This was so both as respects the civil and the criminal law."[551] In Massachusetts, Connecticut, and New Haven the "espoused wife" like the married wife is to suffer death for adultery;[552] while for fornication, on the other hand, the single woman and her partner in guilt are much less severely punished. The betrothed woman "was sentenced to wear the brand of the 'scarlet letter,' precisely as if she were married."[553]

[Footnote 551: SHIRLEY, _loc. cit._, 308.]

[Footnote 552: WHITMORE, _Col. Laws of Mass._ (1660-72), 55,
128; _Conn. Col. Rec._, I, 77; _New Haven Col. Rec._, II, 577;
TRUMBULL, _Blue Laws_, 60, 200.]

[Footnote 553: SHIRLEY, _loc. cit._, 308. This is true of
Connecticut for the entire provincial period: _Acts and Laws_
(New Haven, 1769), 7, but apparently not of Massachusetts under
the second charter. In New Hampshire under the Canfield Code,
1682, the betrothed woman is still treated as married, but
whipping is dispensed with: _New Hamp. Prov. Papers_, I, 444,
445. But by the act of 1701 she is punished for fornication as a
single woman: _ibid._, III, 224.]

Thus in New England the betrothal regained a sanction similar to that which it possessed according to primitive Germanic custom. It was, in fact, a kind of marriage. The espoused couple were separated from the world and placed in a relation whose sacredness might not be violated as respects others without the most serious consequences. On the other hand, it was entirely in harmony with this theory that when they "were guilty of incontinence with each other after pre-contract before marriage, their punishment was in general one half, or less than one half, what it would have been had there been no betrothment."[554] By the statute of Plymouth, for example, the penalty in such cases was fifty shillings for each person and imprisonment for a period not exceeding three days, or if the guilty persons "will not or cannot" pay the fine, they are to suffer "corporal punishment by whipping" instead; while for transgression before contract the fine was twice as much.[555] This was, in effect, to place a premium[556] upon wrongdoing committed between the espousals and the nuptials. Naturally the immorality of such offenses seemed thus to be lessened; and, as will presently appear, a vast amount of sexual license was the natural result.

[Footnote 554: SHIRLEY, _loc. cit._, 308.]

[Footnote 555: The whole of this curious law may prove
instructive. It is enacted "That any person or persons that shall
Comit Carnall Copulation before or without lawfull contract
shalbee punished by whiping or els pay ten pounds fine apeece
and bee Imprisoned during the pleasure of the Court soe it
bee not aboue three daies but if they bee or wilbee married
[_i. e._, a "delayed" marriage voluntarily solemnized or else
marriage prescribed as a penalty] the one to the other; then but
ten pounds both and Imprisoned as aforsaid; and by a lawfull
Contract the Court vnderstands the mutuall consent of parents or
guardians if there bee any to bee had; and a sollemne promise of
marriage in due time to each other before two competent witnesses
[this being the regulation of pre-contract already mentioned in
the text]; and if any person or persons shall Comitt carnall
Coppulation after contract and before Marriage they shall pay
each fifty shillings and bee both Imprisoned," etc.--_Plym. Col.
Rec._, XI, 172, 95, 46. Originally the punishment for fornication
was left in the discretion of the magistrates: _ibid._, 12.]

[Footnote 556: _Cf._ SHIRLEY, _loc. cit._, 308, 309.]

The evil consequences of this anomalous state of the law were rendered all the more serious through the custom of "bundling" which obtained a wide prevalence in New England as it did also in New York and the other middle colonies. According to Stiles, who has produced the only general history of the subject, bundling "was practiced in two forms; first, between _strangers_, as a simple domestic makeshift arrangement, often arising from the necessities of a new country, and by no means peculiar to America; and, secondly between _lovers_, who shared the same couch, with the mutual understanding that innocent endearments should not be exceeded."[557] It is the second form with which we are here most concerned; and in its origin this likewise appears to have been "a custom of convenience." It was long regarded as a gross or licentious practice peculiar to New England. Thus Irving taunts the people of Connecticut with having tried to deprave the manners of the "Dutch lasses of the Nederlandts" through the introduction of that "horrible" usage.[558] But the Dutch maidens needed no lessons from their Yankee sisters in this regard; for in their "queesting" they had brought with them a form of bundling from Holland.[559] Indeed, it is not at all improbable that in this case Pilgrim and Puritan alike may have been strongly influenced by Dutch precedent, as they certainly were in more important institutions. Such an inference seems all the more justifiable, for as yet no trace of bundling has been reported "in any localities of England itself, the mother country;"[560] though in Ireland, Scotland, and Wales evidences of its recent existence are not wanting,[561] and the custom seems clearly to be deeply planted in the ancient usage of the German race.[562]

[Footnote 557: STILES, _Bundling in its Origin, Progress, and
Decline_ (Albany, 1871), 13, 14. GROSE, _Dictionary of the Vulgar
Tongue_, thus explains the practice: "A man and a woman lying on
the same bed with their clothes on; an expedient practiced in
America on a scarcity of beds, when, on such occasions, husbands
and parents frequently permitted travelers to _bundle_ with their
wives and daughters." This applies, of course, only to the first
named and less interesting form of the custom. In almost the same
words as those used by Stiles, MASSON, _Journeys in Belochistan,
Afghanistan_, etc., III, 287, describes the bundling of lovers
among the Afghans: see ADAMS, _Some Phases of Sexual Immorality_,
31, note. In general on this custom consult EARLE, _Customs and
Fashions_, 62-64; WEEDEN, _Ecc. and Soc. Hist. of N. E._, II,
739, 864.]

[Footnote 558: IRVING, _Knickerbocker's Hist. of New York_
(Philadelphia, 1871), Book III, chaps. vii, viii, 217-28; _cf._
STILES, _Bundling_, 45 ff.; ADAMS, _Some Phases of Sexual
Immorality_, 31.]

[Footnote 559: _Queesting_ (a seeking, similar to English
"quest") seems to have existed until last century on the islands
of Vlie, Wieringen, and perhaps elsewhere in Holland. "At night
the lover has access to his mistress after she is in bed; and,
upon an application to be admitted upon the bed, which is of
course granted, he raises the quilt, or rug, and in this state
_queests_, or enjoys a harmless chit-chat with her, and then
retires. This custom meets with perfect sanction of the most
circumspect parents, and the freedom is seldom abused. The author
traces its origin to the parsimony of the people, whose economy
considers fire and candles as superfluous luxuries in the long
winter evenings."--STILES, _op. cit._, 35, 36, citing CARR, _The
Stranger in Ireland_ (1807).]

[Footnote 560: ADAMS, _Some Phases of Sexual Immorality_, 33.
Mr. Adams, however, while pointing out the "singular and to me
unaccountable, fact" that traces of bundling, found so widely
in the New England colonies, have not yet been discovered
in England, thinks that it "could hardly have found its way
as a custom" from Holland or the other countries named; and
he mentions, by way of supporting his conclusion, its great
prevalence in Cape Cod where, according to Palfrey, until about
1825, "there was a purer strain of English blood to be found ...
than could be found in any county of England." But wherever the
Dutch settled the custom of bundling was tenacious, lasting in
Pennsylvania at least until 1845: EARLE, _Customs and Fashions_,
63: and in New York at least until 1804: STILES, _op. cit._, 111.]

[Footnote 561: STILES, _op. cit._, 14-35, who cites various
authorities for Wales, especially PRATT, _Gleaning through Wales,
Holland, and Westphalia_ (3d ed., London, 1797), I, 105-7; and
BINGLEY, _North Wales_ (London, 1804), II, 282. _Cf._ also ADAMS,
_op. cit._, 32; and BRAND, _Popular Antiquities_, II, 98.]

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

In New England, however, it was by no means confined to Connecticut.[563] It prevailed in the sister-provinces, and especially in both western[564] and eastern Massachusetts, down to the revolutionary period and perhaps for a good many years to come. Burnaby,[565] writing of his visit to that colony in 1759-60, gives a lively account of the custom, under the name of "tarrying," significantly observing that it takes place between the permission to pay court and the banns. In his view, bundling is on the whole an innocent practice, seldom being attended by evil consequences. On the other hand, that veracious historian, Rev. Samuel Peters, reproves Burnaby for presenting the custom in "an unfavorable light, and as prevailing among the _lower class_ of people;" whereas, according to Peters, it exists among "all classes, to the great honor of the country, its religion and ladies."[566] Again in 1777 Lieutenant Anbury, "a British officer, who served in America during the Revolutionary War, and whose letters preserve many sprightly and interesting pictures of the manners and customs of that period,"[567] chats racily of an invitation to bundle which he received at Williamstown, Mass.--a courtesy brought about through the scarcity of beds for the entertainment of strangers.[568] Charles Francis Adams finds positive proof of the existence of the custom "within a ten-mile radius of Boston" at least until 1781;[569] and he also quotes a reference to it from a letter of Abigail Adams written three years later.[570] Nor apparently was bundling entirely abandoned in eastern Massachusetts until nearly fifty years thereafter, Cape Cod having the "dubious honor" of holding out against the "advance of civilization" in this regard until 1827.[571] The next year, in Franklin county, Me., a letter to the Portland _Yankee_ reveals the custom existing in full vigor.[572]

[Footnote 563: STILES, _Windsor_, 495; WEEDEN, _Ecc. and Soc.
Hist. of N. E._, II, 739.]

[Footnote 564: JUDD, _Hadley_, 247.]

[Footnote 565: "When a man is enamoured of a young woman and
wishes to marry her, he proposes the affair to her parents....
If they have no objection, they allow him to tarry with her
one night, in order to make his court to her. At their usual
time the old couple retire to bed, leaving the young ones to
settle matters as they can; who, after having sate up as long
as they think proper, get into bed together also, but without
putting off their undergarments, in order to prevent scandal.
If the parties agree, it is all very well; the banns are
published, and they are married without delay. If not, they
part, and possibly never see each other again; unless, which is
an accident that seldom happens, the forsaken fair one prove
pregnant, and then the man is obliged to marry her, under
pain of excommunication."--_Travels in North America_, 110,
111. Elsewhere he says that, while at first the practice may
"appear to be the effects of grossness of character, it will,
upon deeper research, be found to proceed from simplicity and
innocence."--_Ibid._, 144. _Cf._ ADAMS, _op. cit._, 31, note; and
LODGE, _Short History_, 438. The word "tarrying" is not always
equivalent to "bundling," having a more general meaning. Nor was
tarrying or bundling always restricted to one night; see STILES,
_Bundling_, 70, 71.]

[Footnote 566: See STILES, _op. cit._, 51-60, for a long extract
from the lively account of Peters, who says that in Connecticut
bundling is "as old as the first settlement in 1634;" and that
"about the year 1756 Boston, Salem, Newport, and New York,
resolving to be more polite than their ancestors, forbade their
daughters _bundling_ on the bed with any young men whatever,
and introduced a sofa to render courtship more palatable and
Turkish;" but with more "natural consequences than all the
_bundling_ among the boors with their _rurales pedantes_ through
every village in New England besides." Of course, all this must
be swallowed with a very large "grain of salt."]

[Footnote 567: STILES, _op. cit._, 66.]

[Footnote 568: ANBURY, _Travels through the Interior Parts of
America; in a Series of Letters_ (new ed., London, 1781), II,
37-40: cited by STILES, _op. cit._, 66 ff. In a subsequent letter
Anbury plagiarizes the passage from Burnaby which we have quoted
in a preceding note.]