Chapter XII: Obligatory CIVIL Marriage in the New England Colonies (4)

[Footnote 569: According to WORTHINGTON'S _History of Dedham_
(1827), 109--"a town only ten miles from Boston--I find that the
Rev. Mr. Haven, the pastor of the church there, alarmed at the
number of cases of unlawful cohabitation, preached at least as
late as 1781 'a long and memorable discourse,' in which, with
a courage deserving of unstinted praise, he dealt with 'the
growing sin' publicly from his pulpit, attributing 'the frequent
recurrence of the fault to the custom then prevalent of females
admitting young men to their beds who sought their company with
intentions of marriage.'"--ADAMS, _op. cit._, 35. STILES, _op.
cit._, 75-77, note, gives a long extract from Worthington, who
represents Haven's sermon as having had a powerful influence in
setting aside the custom of bundling. But already before this
Jonathan Edwards had raised his voice against it.]

[Footnote 570: ADAMS, _op. cit._, 35; citing MRS. JOHN ADAMS'S
_Letters_ (1848), 161.]

[Footnote 571: STILES, _op. cit._, 110, note, where personal
testimony is adduced.]

[Footnote 572: See the Appendix to STILES, _op. cit._, 113-25,
where an article from the _Yankee_, of Aug. 13, 1828, containing
the letter mentioned, is quoted. A search in the manuscript
court records reveals not a single clear case of bundling. On
Jan. 30, 1709-10, Jane Lee, widow, was presented and acquitted
in Charlestown for conduct resembling bundling: _MSS. Records of
the Court of Gen. Sessions of Suffolk_, I, 202. There is a more
probable example in the _MSS. Records of the Court of General
Sessions of Middlesex_ (Dec. 15, 1702), I, 137.]

According to the judgment of Stiles, bundling "came nearest to being a universal custom from 1750 to 1780." Contrary to the popular view,[573] it appears to have been confined to the more humble and less cultivated classes; "to those whose limited means compelled them to economize strictly in their expenditure of firewood and candle-light."[574] No evidence has yet been produced showing that it made its appearance in the main centers of New England civilization.

[Footnote 573: Thus SHIRLEY, "Early Jurisprudence of New Hamp.,"
_Procds. New Hamp. Hist. Soc._ (1876-84), 308, declares that "the
practice prevailed very largely in New England, among the rich
and the poor, the educated and the uneducated, the cultivated and
the uncultivated."]

[Footnote 574: STILES, _op. cit._, 65, 106. ADAMS, _op. cit._,
31, 32, 36, reaches the same conclusion. "It was," he says, "a
practice growing out of the social and industrial conditions of a
primitive people, of simple, coarse manners and small means," and
probably did not exist in Boston, Salem, or Plymouth.]

Though bundling could arise only in a comparatively rude state of society, it seems in itself to have been neither very vicious nor very immoral. Yet manifestly it was easily capable of abuse. Under dangerous conditions it might readily degenerate into coarseness and vice. Such conditions were not wanting throughout the colonial era. The general tone of sexual morality was not high. The laws and usages already presented, which in effect invited transgression on the part of engaged lovers, afforded a constant temptation.[575] Bundling thus has its chief moral significance as an adjunct of pre-contract which must be held responsible for a very large share of the sexual misconduct revealed in the judicial records. Before the general court of Plymouth the cases of "uncleanness" after contract and before marriage are very numerous. According to Goodwin, they averaged one a year; and this appears to be a conservative estimate. By actual count the records of that colony, for the twenty-eight years between 1633 and 1661, show at least twenty-four sentences for ante-nuptial offenses, chiefly after betrothal; while during the seventeen years following 1661 there are not less than forty-one such judgments. Members of some of the most illustrious families of New England were guilty of indiscretions in this regard.[576] In several of the early cases the husband was publicly whipped in view of the wife, who sat near in the stocks.[577]

[Footnote 575: So also in Holland, it is interesting to note,
bundling appears in connection with the practice of public
betrothals as the cause of ante-nuptial transgressions. See
Townshend's speech on the Hardwicke act in COBBETT-HANSARD,
_Parliamentary Debates_, XV, 56-59.]

[Footnote 576: "There was Peregrine White, the first-born child
of the Colony and stepson of Governor Winslow; Thomas Cushman,
Jr., son of the elder; James Cudworth, Jr., son of the future
general and deputy-governor, and Jonathan, his brother; Samuel
Arnold, Jr., son of the Marshfield pastor; Isaac Robinson, Jr.,
grandson of the great Leyden pastor; Thomas Delano; Nathaniel
Church; and other scions of leading families."--GOODWIN, _Pilgrim
Republic_, 600, who, thinks it a mistake to suppose that
generation "below the present in general purity of life;" since
the pre-contract was "a sort of semi-marriage" and "such cases
were ferretted out and recorded" with "impartial diligence."]

[Footnote 577: GOODWIN, _op. cit._, 600; _cf._ _New Hamp. Prov.
Papers_, I, 386, 445. FREEMAN, _Hist. of Cape Cod_, I, 167,
168, gives the following forms of sentence: "A. F. for having
a child born six weeks before the ordinary time of women after
marriage, fined for uncleanness, and whipt, and his wife set in
the stocks." "C. E., for abusing himself with his wife before
marriage, sentenced to be whipt publicly at the post, she to
stand by whilst the execution is performed. Done, and he fined
five pounds for the trouble."]

The manuscript records of two counties of Massachusetts for a portion of the seventeenth century appear to demonstrate that such "miscarriages" before complete wedlock were not less frequent in the Bay Colony.[578] A thorough analysis of the records of the county court of Suffolk, covering the ten years 1671-80, brings to light twenty of these cases, while during the same period there are forty-three instances of transgression by "single women."[579] Now, it is important to remember that the statutes of Massachusetts, unlike those of Plymouth, do not discriminate between the offenses of single persons and those committed with each other by espoused lovers.[580] The question therefore arises as to whether the _custom_ of pre-contract--for pre-contract was not established by _law_ in that province--can be held in any way accountable for these facts. A comparison of the penalties imposed in the two classes of cases, as exhibited in Tables I and II, shows that an affirmative answer must be given. The sins of betrothed persons are in general punished with far less rigor than those of single men and women. Thus twenty-one out of forty-three single women, and eight out of thirteen single men, are sentenced to stripes alone, nineteen of them receiving each from fifteen to forty lashes;

TABLE I

CASES OF FORNICATION BEFORE MARRIAGE IN THE COUNTY COURT OF SUFFOLK COUNTY, MASS., 1671-80

1. Fine only 3 married couples
£5 (both) 1 " "
£3 " 1 " "
40s. " 1 " "

2. Fine and confession before the congregation
or stripes 2 " "

3. Fine or stripes 15 " "

_a_) Fine--
£5 (both) 3 " "
£4 " 3 " "
£3 " 1 " "
50s. " 1 " "
40s. " 7 " "

_b_) Stripes--
20 2 husbands 0 wives
15 12 " 2 "
10 1 " 13 "

TABLE II

CASES OF FORNICATION BY SINGLE PERSONS IN THE COUNTY COURT OF SUFFOLK COUNTY, MASS., 1671-80

The most noticeable feature of these cases is the tendency
on the part of single men to confess the crime and accept
punishment, besides becoming bound as putative fathers. All the
convictions for fornication are by confession or pleading guilty.

1. Single women convicted 43

_a_) Fine or stripes 22
£15 or 20 stripes 1
£5 or {20 " 1
{15 " 4
£3 or {20 " 1
{15 " 3
50s. or {15 " 3
{10 " 2
40s. or {15 " 2
{10 " 4

_b_) Stripes alone 21
40 (20 each in two places) 2
30 2
20 11
15 4
10 2

2. Single men, confession 13

_a_) Fine or stripes 5
£5 or 20 stripes 4
40s. or 15 stripes 1

_b_) Stripes alone 8
30 3
20 5

_c_) Putative fathers 17

while in no case is a single man or woman merely fined. On
the other hand, out of twenty married couples punished for
ante-nuptial misconduct, fifteen are given the choice of fines or
stripes, three are merely fined; and in no instance is whipping
alone the penalty decreed. Furthermore, the fines are on the
average smaller in these cases than in others, although as
regards both fines and stripes the sentences are sadly lacking in
uniformity. The conclusion seems irresistible that, in harmony
with popular sentiment, the courts, exercising the discretion
granted by the statute, were inclined to deal more leniently
with the faults of the betrothed than with those of less favored
bachelors and spinsters.

[Footnote 578: In addition the records of the court of assistants
for the early period contain six cases, in each instance the
husband alone being punished; two cases in 1635, one in 1637,
one in 1639, two in 1640: _Mass. Col. Rec._, I, 163, 193, 269,
296, 297; and three cases where both husband and wife were
fined, condemned to stand in the market place, or to confess on
Lecture Day: _Rec. of the Court of Assistants, 1641-1643/44_, in
WHITMORE, _Bib. Sketch_, xxxi, xxxiii, xxxvii.]

[Footnote 579: These are in the Athenæum copy of the _MSS.
Records of the County Court of Suffolk, 1671-80_. There is also
a unique example in the _MSS. Early Court Files of Suffolk_
(1675), No. 1412. This is a case of appeal to the assistants from
the county court at Salisbury, where John Garland and wife had
been fined £5 for having a child eleven weeks too early. On his
appeal John says, significantly: "I and She had parents Concent
to marry and Legally published & Stayed after publication a
Considerable time, that had any Such Act been co[=m]ited by us
we could haue preuented it by marrying sooner;" and he further
alleges that it was an untimely birth caused by the wife's fall.
In reply, the attorney for the county of Norfolk said Garland
had pretended to quote "Aristottle" to prove a child might come
in the seventh month, but that if the court "please to Cast an
eye vpon John garland ... they will judg Him to be no deepe
man in phylosophie." Whereupon the worthy barrister, rejecting
pagan learning, imparted the following bit of strictly orthodox
biology: "It was well knowne to the Honored Court at Salisbury
that the usuall time of woman was a set time As in genesis the
18 and the 10 compared with 2 of kings the 4th & the 16 verse,
the Honored Court likewise knew that that time wast aboue seauen
month as is the first of luke the 36 vers compared with the 39 &
40 and 56 & 57 verse of that chapter." The "jury" reversed the
decision of the lower court.]

[Footnote 580: "If any man commit fornication with a single
woman, they shall be punished, either by enjoining marriage, or
fine, or corporal punishment, or all or any of these," as the
court may determine: WHITMORE, _Col. Laws of Mass._ (1660-72),
153. Later disfranchisement, in the case of a freeman, was added:
_ibid._, 231. See also WHITMORE, _op. cit._ (1672-86), 54, 208;
_Conn. Col. Rec._, I, 527; _New Haven Col. Rec._, II, 590; _Plym.
Col. Rec._, XI, 12, 46, 95, 172.]

Similar evidence is afforded by the incomplete records of the county court of Middlesex for the period 1629-86, supplemented by the Files. These contain in all thirty cases of transgression before marriage, eight of which fall within the ten years covered by the Suffolk records already considered. Most of the severe sentences (Table III) occur in this period and the six years immediately following, although the heaviest fine, twenty pounds for the couple, is imposed in 1663.[581] Seemingly, from the few cases known, single persons were treated more harshly than those who were betrothed.[582]

[Footnote 581: June 16, 1663. At a county court at Charlestown,
"Daniel Weld and Bertha his wife convicted of fornication before
marriage, appeared and made humble acknowledgment of their sin
craving the favor of the court. Admonished seriously to consider
their great sin and fined £10 apiece. Execution respited during
the pleasure of the court."--_MSS. Records of the County Court of
Middlesex_, I, 243. On the same day before the same court John
Roy and wife were convicted of the same offense, and "pleaded
that it was committed a fortnight after their solemn contract
in marriage and being hindered of marriage were overcome by the
temptation." They had to pay only 40s.: _ibid._, 241.]

[Footnote 582: In these volumes there are five cases of
fornication by single persons. In the first, April 4, 1654, the
two culprits got each twelve stripes; in another, April 1, 1684,
a married man and a girl were parties, the man being sentenced
to pay £20 or receive thirty stripes, the woman, £5; and in
one instance, October 2, 1677, the woman was "whipt fifteen
stripes." More cruel was the fate of Sarah Pore. On July 7, 1785,
for refusing to name the father of her two children, she was
condemned "to be whipt severely twenty stripes and to lie in the
house of correction for twelve months, there to be kept at hard
labor and to be whipt once a month until she confess." Of course,
on August 14, she named the man. For these cases see _MSS.
Records of the County Court of Middlesex_, I, 39; III, 107, 194;
IV, 97, 171, 173.]

On presentment by the grand jury[583] or voluntarily confessions were made by wives and husbands before the court; and these documents contain evidence of the close relation

TABLE III

CASES OF FORNICATION BEFORE MARRIAGE IN THE COUNTY COURT OF MIDDLESEX COUNTY, MASS., 1649-86 [EXCEPT 1663-71]

During the same period these records contain five cases of fornication by single persons.

1. Fine only 15 married couples
£20 (together) 1 " "
£5 " 3 " "
£4 " 6 " "
£3 " 2 " "
40s. " 3 " "

2. Fine or stripes
_a_) Fine 10 " "
£1 (together) 5 " "
£6 " 1 " "
£4 " 3 " "
£3 " 1 " "
50s. (wife) 1
_b_) Stripes 10 "
20 6 husbands 0 wives
15 1 " 0 "
10 3 " 10 "

3. Stripes only
15 1 " (the wife 50s. or whipped)

4. Confessions and petitions 3 married couples

5. Convicted and respited 1 " "

existing between the colonial church and state. On October 31, 1671, for instance, Christopher Wheaton and Martha his wife were sentenced in Boston to make an acknowledgment "in publique at Hull to y^e Satisfaction of y^e Congregation, & pay twenty Shillings fine," on pain of being whipped ten stripes each by the constable.[584] An elaborate "church confession," found among the Middlesex Files, would seem to prove that in another case the decree of the court was obeyed; and that the written acknowledgment made before the congregation was returned to the court for record.[585]

[Footnote 583: See the long petition and confession of Samuel and
Elizabeth Manning, who had been presented by the grand jury of
Middlesex. It is expressed in perfervid pious phrase, much like
the "church confession" presently referred to: _MSS. Files of the
County Court of Middlesex_, June, 1664.]

[Footnote 584: _MSS. Records of the County Court of Suffolk_, 22.
There was another sentence of this kind at the same session of
this court.]

[Footnote 585: See the acknowledgment of Samuel Wright and Lydea
his wife beginning: "for as much as wee are heere called to
confese our sine before God and his people wee doe therefore
heere accnowlidg that wee haue sined in that wee haue brokne the
seuenth comandmente in neglecting of our deuty therein required
and comitinge the sine forbiddene: to the dishonour of God and
Scandalizinge of the gospel;" and so on in scriptural phrase to
the extent, in the author's copy, of a large typewritten page:
_MSS. Files of the County Court of Middlesex_, Oct., 1664.]

The files and records of the same two counties, supplemented by the record of the superior court, may next be examined for the period of the second charter. The impression made by their contents is decidedly disagreeable and depressing. The coarser and more heinous sexual crimes are growing more frequent, although due allowance must be made for the increase of population. Indeed, the bulk of the records of the general sessions appears to be concerned with sexual immorality of almost every kind.[586] Inquiry is, however, here restricted to the two classes of cases thus far considered. For convenience the material is treated chronologically in two divisions. The first division covers the period ending in 1725; and the second the years 1726-80. Within the former period (Table IV) the records of the general sessions of Suffolk for the years 1702-25, inclusive,

TABLE IV

SUMMARY OF FORNICATION CASES BEFORE THE GENERAL SESSIONS OF SUFFOLK COUNTY, 1702-25, AND THE GENERAL SESSIONS OF MIDDLESEX COUNTY, 1692-1725

Between 1702 and 1725 the following cases brought conviction
before the general sessions for Suffolk county:

Cases of fornication where the woman alone was sentenced 104

Cases of conception before marriage with fine, and in a few
cases fine or whipping for husband, or both husband
and wife 48

Cases of woman fined or whipped, and putative (or acknowledged)
father sentenced to maintenance of child 44

Between 1692 and 1725 there were the following convictions
before the general sessions for Middlesex county (each case
stands for both man and woman if both were tried):

Cases of fornication 135

Cases of fornication and conception before marriage 155

yield forty-eight cases of conviction of married couples for pre-nuptial misconduct, as compared with 148 cases of single women sentenced for the same offenses.[587] The corresponding records of the general sessions of Middlesex for the years 1692-1725 contain the extraordinary number of 155 cases of the first class, as compared with 135 of the second. In a great many instances the husband or both husband and wife appear "freely and voluntarily" and confess their guilt.

[Footnote 586: There are (1) many cases of bastardy, the woman
being usually fined or whipped and the man in most cases
sentenced merely to contribute to the child's support; for a
few examples see _MSS. Records of the Court of Gen. Sessions of
Suffolk_, I, 112 (1705), 190, 192 (1709); II, 234 (1719); III,
154, 308 (1724); IV, 331 (1731): _MSS. Records of the Court of
Gen. Sessions of Middlesex_, II, 197, 203, 204 (1729-30); (2)
killing of bastard, at least ten convictions between 1692 and
1725, in nine of which the woman was sentenced to death; and not
less than a dozen presentations and one capital sentence after
1725: see examples in _MSS. Records of the Superior Court of
Judicature_, II (1686-1700), 49, 50; III (1700-1714), fol. 270;
_ibid._ (1725-29), fol. 111; _ibid._ (1772), fol. 98; _ibid._
(1757-59), 295; (3) miscegenative fornication, a number of cases,
the white woman almost always receiving twenty stripes: examples
in _MSS. Records of the Court of Gen. Sessions of Suffolk_, I,
144 (1706), 206 (1710); II, 43, 45 (1713); (4) rape, at least two
cases: _MSS. Records of Superior Court of Judicature_ (1739-40),
fol. 225; _ibid._ (1767-68), fol. 261; (5) prostitution of wife,
one case: _MSS. Minute Books of the Court of Gen. Sessions of
Suffolk_, III, Dec. 3, 1756. The darker crimes were, however, not
unknown to the period of the first charter. Between 1674 and 1681
in Massachusetts four persons were sentenced to death for rape:
NOBLE, _Records of the Court of Assistants_, I, 21, 50, 74, 199.]

[Footnote 587: Here are two typical cases:

Aug. 27, 1711: "Joseph Holbrook and Mary Cooke ... being
presented ... for fornication, He appeared and owned the same;
and that he is since Married to her. Ordered That [he] ... shall
pay a Fine of Three pounds in behalf of himself and his 2d Wife &
Costs ... standing Co[=m]itted."--_MSS. Records of the Court of
Gen. Sessions of Suffolk_, I, 234.

April 4, 1721: "Mary Shaw the Wife of Benjamin Shaw ... being
presented for having a child in September last, about five
Months after Marriage, appeared and owned the same. Ordered That
[she] ... pay a fine of Forty Shillings ... Costs ... standing
committed."--_Ibid._, III, 83.

A sentence that includes the alternative of whipping is rare; for
an example (July, 1702) see _ibid._, I, 4. The proceedings in
the case of Benjamin and Hopestill Allen, March 5, 1696-7--Nov.
23, 1698, are especially instructive. They were presented by the
grand jury of Bristol for having a child within six months after
publishment. Hopestill was fined 50 shillings, or to be whipped
ten stripes. On appeal to the superior court the legality of the
marriage was called in question. The privilege of appeal was
granted by special act of the legislature: with the _MSS. Early
Court Files of Suffolk_, No. 3728, compare the _MSS. Records of
the Superior Court of Judicature_, II, 198; and the petition and
act regarding appeal in _MSS. Mass. Archives_, XL, 476, 478, 483.]

TABLE V

FORNICATION CASES BEFORE THE GENERAL SESSIONS OF MIDDLESEX COUNTY, MASS., FOR EACH QUINQUENNIUM, 1726-80[588]

===========================================================================
| QUINQUENNIUM |
+---+---+---+---+---+---+---+---+---+---+---+-----
| 26| 31| 36| 41| 46| 51| 56| 61| 66| 71| 76|TOTAL
| - | - | - | - | - | - | - | - | - | - | - |
| 30| 35| 40| 45| 50| 55| 60| 65| 70| 75| 80|
-------------------------+---+---+---+---+---+---+---+---+---+---+---+-----
Single women | | | | | | | | | | | | 523
Appeared and confessed | ..| 13| 2| 4| 12| 4| 10| 6| 5| 13| 21| ...
Confessed on | | | | | | | | | | | |
recognizance | 2| 3| 12| 3| 9| 7| 9| 6| 4| 2| 2| ...
Pleaded guilty | 9| 2| 3| 12| 10| 4| 11| 11| 13| 5| 2| ...
Pleaded guilty and | | | | | | | | | | | |
named man | 1| 3| 1| 4| 5| 6| 21| 18| 16| 7| 3| ...
Conf. on recogniz'nce | | | | | | | | | | | |
and named man | 10| 4| 6| 4| 3| 6| 16| 11| 15| 9| 1| ...
Appeared, confessed, | | | | | | | | | | | |
and named man | 4| 15| 5| 1| 5| 4| 3| 9| 15| 16| 45| ...
Married couples | | | | | | | | | | | | 160
Appeared and confessed | 37| 65| 16| 3| 1| ..| 1| ..| ..| ..| ..| ...
Pleaded guilty | 15| 9| 8| 1| 1| ..| ..| ..| ..| ..| ..| ...
Pleaded not guilty, | | | | | | | | | | | |
but convicted | 2| ..| 1| ..| ..| ..| ..| ..| ..| ..| ..| ...
Wives[589] | | | | | | | | | | | | 31
Appeared and confessed | 2| 1| 3| ..| 1| ..| ..| ..| 1| ..| ..| ...
Pleaded guilty | 3| ..| ..| ..| 1| 2| 6| 7| 4| ..| ..| ...
+---+---+---+---+---+---+---+---+---+---+---+-----
Total | 85|115| 57| 32| 48| 33| 77| 68| 73| 52| 74| 714
-------------------------+---+---+---+---+---+---+---+---+---+---+---+-----

This is especially true during the decade following 1715, there being five such confessions at one sitting of the court, four of them on one page of the record.

[Footnote 588: In addition to the 714 cases comprised in the
table, during the same period 73 single men, perhaps all involved
in those cases, were before the court as follows: putative
fathers, 54; settled out of court, 9; appeared and gave bond to
save the town, 8; fornication, pleading guilty, 2. Of these one
(1750) was fined £5; and one (1732) was given the choice of 10
shillings or ten stripes.]

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

The results for the later period (Table V) are still more striking. Before the Middlesex court alone, during the fifty-five years commencing in 1726, were 523 cases of single women and 191 cases of married couples; but 189 of these couples were tried during the twenty-five years ending in 1750--there being but two isolated cases of confession after that date--and 181 within the first fifteen years. On the

TABLE VI

PENALTIES IMPOSED IN CASES COMPRISED IN TABLE V[590]

===================================
Fine | Single | Married | Wives
| Women | Couples |
--------+--------+---------+-------
£12½ | .. | 1 | ..
£9 | 1 | .. | ..
£6 | 1 | 2 | ..
£5 | 18 | 37 | ..
£4 | 48 | 61 | 3
£3 | 6 | .. | ..
50s | 10 | .. | 1
40s | 24 | 2 | 4
30s | 9 | .. | 3
25s | 8 | 1 | ..
20s | 43 | 3 | ..
15s | 20 | .. | ..
10s | 96 | 2 | 2
5s | 169 | .. | 16
4s | 11 | .. | ..
3s | 13 | .. | 2
2s | 7 | .. | ..
1s | 10 | .. | 1
| --- | --- | ---
Total | 494 | 109 | 32
--------+--------+---------+-------

other hand, 337 single women were convicted during the twenty-five and 257 during the same fifteen years. Again, 118 out of the 181 married couples tried between 1726 and 1740 appeared and, presumably, freely confessed their faults. The leading years in this regard are 1730 with twelve, 1732 with twenty-nine, and 1734 with sixteen confessions. The leading quinquennium is the second (1731-35) with sixty-six confessions as compared with thirty-nine in the first (1726-30) and nineteen in the third (1736-40). To offset these figures we find thirteen presumably voluntary confessions by single women in the second quinquennium, none in the first, and two in the third. These facts seem to point directly to the action of special causes in producing this kind of immorality, or, at any rate, its confession. Whether this action was local for Middlesex cannot positively be determined from these documents alone; although, as will soon appear, other evidence shows that this cannot be assumed. After 1725 the records for Suffolk are incomplete; but it is surprising that during the seven years (September, 1725, to October, 1732) covered by Table VII there were in that county only seven convictions of married couples, not one of whom freely confessed, as compared with forty-eight cases of single women, including one confession.

[Footnote 590: In general the later the date of the case, the
smaller the fine. With few exceptions fines of 25 shillings or
less are after 1745; and most of those for 5 shillings or under
are many years later. The "married couples" and the "wives" are
only fined. Eight "single women" have the alternative of fine
or stripes as follows: One (1734), £5 or 5 stripes; two (1755,
1770), £3 or 10 stripes; two (1746, 1756), 50 shillings or 10
stripes, the first being an "old offender;" one (1751), an "old
offender," 40 shillings or 10 stripes; one (1758), 10 shillings
or 10 stripes; one (1761), 5 shillings or 10 stripes. One woman
(1747), whose child is a mulatto bastard, is given 20 stripes and
sold into "service." In two similar cases (1759, 1772) 10 and
20 stripes respectively are deemed sufficient; while in another
instance (1761) an "old offender" is sentenced to 20 lashes. In
the later years, it will be noted, stripes decrease in money
value. On the other hand, with the progress in humanism, they are
probably lighter and therefore worth less.]

There can be little doubt that in the eighteenth century, just as in the age preceding, the general cause of this ante-nuptial immorality--and probably also of some part of the similar misconduct of single persons whose engagements were not followed by wedlock--was the custom of solemn pre-contract which still survived. During the second quarter of the eighteenth century the penalties were relatively severe, though not so rigorous as during the period of the first charter; but the facts exhibited in Table VI show that the courts still treated pre-nuptial offenders more mercifully than those who were not married.

To determine the special cause of the sudden rise in the number of confessions during the same period is a more difficult matter. It is not improbable that a suggestion of Charles Francis Adams, regarding another aspect of the problem, may give us a clue to its right solution. Already the practice of church confession of these offenses, in obedience to judicial decree, has been noticed; and independently of the courts, as a religious expiation, such acknowledgments were required by the authority of particular churches. In the eighteenth century, if not earlier, under the "seven months rule," the culpable parents were forced to humble

TABLE VII

FORNICATION CASES BEFORE THE GENERAL SESSIONS OF SUFFOLK COUNTY, MASS., SEPTEMBER, 1725, TO OCTOBER, 1732[591]

==================================+=======================================+===
| YEAR |
+----+----+----+----+----+----+----+----+---
|1725|1726|1727|1728|1729|1730|1731|1732|TO-
| | | | | | | | |TAL
----------------------------------+----+----+----+----+----+----+----+----+---
Single women: | | | | | | | | |
Confessed | .. | .. | .. | .. | .. | .. | .. | .. | 1
£3 or 10 stripes | .. | .. | 1 | .. | .. | .. | .. | .. | ..
Pleaded guilty | .. | .. | .. | .. | .. | .. | .. | .. | 8
£4 or 10 stripes | .. | .. | 2 | .. | .. | .. | .. | .. | ..
£3 or 10 stripes | .. | .. | 2 | .. | .. | 1 | .. | .. | ..
£2 or 10 stripes | .. | .. | .. | 1 | .. | 1 | .. | 1 | ..
Pleaded not guilty, but | .. | .. | .. | .. | .. | .. | .. | .. | 3
convicted £5 or 10 stripes | .. | .. | .. | .. | .. | 1 | .. | .. | ..
10 stripes | .. | .. | .. | 1 | .. | 1 | .. | .. | ..
Pleaded guilty and named man | .. | .. | .. | .. | .. | .. | .. | .. | 35
£5 or 10 stripes | .. | 1 | .. | .. | .. | .. | .. | .. | ..
£4 or 10 stripes | 2 | 2 | 1 | .. | 2 | .. | .. | .. | ..
£3 or 10 stripes | 1 | 2 | 2 | 5 | 3 | 4 | 3 | 1 | ..
£2 or 10 stripes | .. | .. | .. | 1 | 1 | .. | 1 | 3 | ..
Came in freely and accused a man| .. | .. | .. | .. | .. | .. | .. | .. | 1
£2 or 10 stripes | .. | .. | .. | .. | .. | .. | 1 | .. | ..
Married couples: | | | | | | | | |
Fornication before marriage, | | | | | | | | |
man alone accus'd | .. | .. | .. | .. | .. | .. | .. | .. | 2
20s. or 10 stripes | .. | .. | .. | .. | .. | 1 | 1 | .. | ..
Fornication before mar'ge, woman| | | | | | | | |
alone accus'd | .. | .. | .. | .. | .. | .. | .. | .. | 5
40s. or 10 stripes | .. | 1 | .. | .. | 1 | 1 | .. | .. | ..
20s. or 10 stripes | 1 | 1 | .. | .. | .. | .. | .. | .. | ..
+----+----+----+----+----+----+----+----+---
Total | 4 | 7 | 8 | 8 | 7 | 10 | 6 | 5 | 55
----------------------------------+----+----+----+----+----+----+----+----+---

themselves before the whole congregation or else expose their innocent child to the danger of eternal perdition.[592] Yet, in spite of the fact that the clergy had thus devised a punishment more terrible to bear than the fines or stripes imposed by the criminal law, during the very period under consideration the church records show a great increase in the number of confessions. Adams suggests that an explanation may be found in the religious excitement which generally prevailed during the second quarter of the eighteenth century, the period which includes the "Great Awakening" under Whitefield in 1740, the Northampton revival of 1735, "engineered and presided over by Jonathan Edwards," and earlier "harvests" of the same character.[593] At Braintree, for example, there was a vast increase in the number of church confessions during the pastorate of John Hancock, 1726-43. It was "everywhere noticed that the women, and especially the young women, were peculiarly susceptible to attacks of the spiritual epidemic. Jonathan Edwards for instance mentions, in the case of Northampton, how the young men of that place had become 'addicted to night-walking and frequenting the taverns, and leud practices,' and how they would 'get together in conventions of both sexes for mirth and jollity, which they called frolicks; and they would spend the greater part of the night in them;' and among the first indications of the approach of the epidemic noticed by him was the case of a young woman who had been one of the greatest 'company keepers' in the whole town, who became 'serious, giving evidence of a heart truly broken and sanctified.' This same state of affairs doubtless then prevailed in Braintree, and indeed throughout New England. The whole community was in a sensitive condition morally and physically."[594] The morbid quickening of the conscience would thus naturally result in a greater number of confessions rather than in an increase of sexual license; and this same cause seems adequate to explain the extraordinary number of confessions which we have found in the contemporary court records.[595] Besides, after the sin had been disclosed before the congregation, an acknowledgment in court would almost necessarily follow. It would be very strange, however, if there were not a considerable increase in immorality. The practice of bundling, as Adams believes,[596] may have afforded ready opportunity. Any violent or protracted disturbance of the mental or nervous equilibrium, often tending to produce sexual excesses, would be sure to find "vent" in so dangerous a custom, especially when sanctioned by the recognized doctrine of betrothal.

[Footnote 591: During the period are also fifteen cases of
putative fathers. Voluntary accusations of putative fathers were
looked on with suspicion. In the fragments of later records of
Suffolk it is not uncommon for the court to refuse to put the
woman on her oath in such cases.]

[Footnote 592: By this rule children born in less than seven
months after marriage were refused baptism, that is, were put
in peril of eternal damnation, unless the parents made public
confession of their fault before the whole congregation: ADAMS,
_Some Phases of Sexual Immorality_, 20 ff.

In like spirit other offenses were subjected to church
discipline. For minor shortcomings, such as cheating, the
culprit, after examination, was required to give "christian
satisfaction" by public confession of penitence. If he refused,
he was "suspended" from the communion. For adultery the penalty
was "excommunication" on refusal to confess: and this punishment
in Puritan New England meant as complete a social ostracism as
it did in old England during the Middle Ages. Sometimes the most
shameful wrongs resulted from these church trials; and this is
well illustrated by the case of Abigail Muxon who, in 1783, on
the unsworn testimony of two gossips, was condemned for alleged
misconduct, thirty years after she was "suspended" on the same
charge. She positively declared the evidence of the witnesses
false. She was then an old woman; but "there was no friend or
attorney to represent her before the self-righteous tribunal;
and without cross-examining the unsworn witnesses, the church
voted (men only were allowed to vote) that she is guilty of the
charge." For weeks she refused to "confess," although she was
"admonished" by the parson and "labored" with by the brethren. At
last before a tribunal of six ministers "her excommunication was
pronounced by Parson Everitt, who in his condemnation describes
her 'as being visibly a hardened and impenitent sinner out of the
visible Kingdom of Christ, one who ought to be viewed and treated
by all good people as a heathen and publican in imminent danger
of eternal perdition'": For a full discussion of this case see
the fascinating book of BLISS, _Colonial Times on Buzzard's Bay_,
99-101, 111-14.]

[Footnote 593: ADAMS, _op. cit._, 26 ff. The following scarce
works are in the Harvard library: JONATHAN EDWARDS, _Thoughts
concerning the Present Revival of Religion in New England_
(London, 1745); CHAUNCEY, _A Letter from a Gentleman to Mr.
George Wishart ... concerning the State of Religion in New
England_ (Edinburgh, 1742), criticising Tennant and Whitefield;
_The State of Religion in New England_ (Glasgow, 1742); and
especially the _Letter from New England_ (1742), 4, describing
the symptoms of "conversion."]

[Footnote 594: ADAMS, _op. cit._, 28.]

[Footnote 595: The church confessions of married couples and
single persons continued long after confession ceased to be made
in court. In Groton the "seven months rule" was put in force
in 1765 and not abrogated until 1803. Under its operation "the
records of the Groton church show that out of two hundred persons
owning the baptismal covenant in that church during the fourteen
years between 1761 and 1775 no less than sixty-six confessed to
fornication before marriage. The entries recording these cases
are very singular. At first the full name of the person, or
persons in the case of husband and wife, is written, followed
by the words 'confessed and restored' in full. Somewhat later,
about the year 1763, the record becomes regularly 'Confessed
Fornication' which two years later is reduced to 'Con. For.;'
which is subsequently still further abbreviated into merely
'C. F.' During the three years 1789, 1790, and 1791 sixteen
couples were admitted to full communion; and of these nine had
the letters 'C. F.' inscribed after their names in the church
records." The practice existed at Dedham, Roxbury, and probably
throughout Massachusetts: ADAMS, _op. cit._, 20-23, citing
BUTLER, _History of Groton_, 174, 178, 181; WORTHINGTON, _History
of Dedham_, 108, 109; and _Report of Boston Record Commission_,
vi, 93, _passim_.]

[Footnote 596: ADAMS, _op. cit._, 31 ff., 34. JUDD, _History
of Hadley_ (Northampton, 1863), 247, note, mentions Jonathan
Edwards's sermon against bundling.]

Finally it is not without interest to note that the higher legal significance of the "contraction," as compared with that of the English _sponsalia_, is due mainly to the influence of the Jewish law. The code of Moses mentions no fixed ceremonies for concluding marriage.[597] But precisely the same relation as by the Puritans is fixed between marriage and betrothal. For criminal assault upon the betrothed "damsel that is a virgin" and for adultery the death penalty is prescribed.[598] Later, however, the rabbinical law establishes "certain legal formalities for the act of concluding marriage. The act consisted of two distinct parts, intervened by the lapse of a certain time, the betrothment and the nuptials."[599] To constitute a legal betrothment the mere consent of the parties did not suffice. The performance of a solemn act was required. This consisted in the man's giving to his chosen bride in the presence of two witnesses either a written instrument, _sh'tar_, or a piece of money, _kaseph_, and saying: "Be thou consecrated (wedded) to me."[600] The contract thus made is not a "mere promise to marry," with civil consequences for non-fulfilment. "It is the very initiation of marriage. The betrothed parties are in some respects regarded as married, though not yet entitled to the marital rights nor bound to fulfil any of the mutual duties of conjugal life.... The betrothment could be dissolved only through death or a formal bill of divorce."[601]

[Footnote 597: MIELZINER, _The Jewish Law of Marriage and
Divorce_, 75.]

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

[Footnote 599: MIELZINER, _op. cit._, 75.]

[Footnote 600: _Ibid._, 78. "As the formality of contracting
marriage by money had in the Rabbinical Law merely a symbolical
character, a coin of the least value (the _peruta_, the smallest
used in Palestine), and even any other object representing such a
value, could be used."--_Ibid._, 79. The practice may have been
derived from the Roman _coemptio_. "The rabbinical formality
differs, however, from the Roman in this, that the act is done
by the man only; _he_ gives the money or its value, and _he_
speaks the formula, while her consent is expressed by her silent
acceptance of both. This passivity on her side is in consequence
of the Talmudic principle based on the expression used in the
Mosaic law: 'If A Man Taketh A Wife;' he takes and she _is_
taken; he is the active and she the passive party."--_Talm.
Kiddushin_, 2_b_ and 3_b_; MIELZINER, _op. cit._, 78 n. 2. During
the Middle Ages it became customary to use a plain ring instead
of the piece of money: _ibid._, 79, 80.]

[Footnote 601: MIELZINER, _The Jewish Law of Marriage and
Divorce_, 76.]

Among the Jews it was quite customary for the betrothal to be preceded by an "engagement," but it was not legally required.[602] The Puritan went farther in this regard, regulating proposal and courtship, as well as the pre-contract and nuptials, by statute.

[Footnote 602: _Ibid._, 77. "Since the third century it was
regarded as improper to effect a betrothment without a previous
engagement."--_Ibid._, 77.]

V. BREACH OF PROMISE AND MARRIAGE PORTIONS

The New England contraction or public betrothal, when its social and legal consequences are considered, is thus seen to be an institution of far more historical interest than the scanty attention it has hitherto received would lead one to infer. This is all the more apparent when the accompanying practice of legal courtship is kept in view. Never, perhaps, in any modern society has parental control been so pronounced. But if consent were once given and sealed by a contract in due form, it could not be lightly withdrawn. The early records abound in notices of suits for breach of promise. The colonists were a litigious people; and members even of some of the best families do not hesitate to drag their matrimonial difficulties into court. Sometimes a jilted lover sues his fickle sweetheart; or a forlorn maiden seeks satisfaction from her betrothed spouse. Thus the Massachusetts court "orders that Joyce Bradwicke shall giue unto Alex: Becke the so[=m]e of xx^s, for promiseing him marriage w^{th}out her ffrends consent, & nowe refuseing to [p=]forme the same."[603] Likewise in the Plymouth jurisdiction we find John Sutton complaining "against Mary Russell, in an action of the case, to the damage of two hundred pounds, for engageing herselfe to another by promise of marriage, whenas shee had engaged herselfe by promise of marriage vnto the said John before. The jury find for the plaintiffe fifteen pounds damage, and the cost of the suite which came to 1^{lb} 10^s 6^d."[604] But this did not entirely end the matter. In 1662-63 the case was taken up for review, Mary having in the meantime become the wife of John Jacob. After a careful rehearing, the court reaches the curious decision that Mary's "actinges haue bine such ... as may not reflect vpon her disparagement, wee apprehending that what wrong hath bine vnto John Sutton heerin hath bine rather occationed by her father than by ... herselfe, shee haueing heard such thinges concerning the said Sutton as might justly discurrage her, although the truth of these reports wee see not cause to determine." Whereupon, oddly enough, it is decreed "that the abouesaid John Sutton doe pay vnto John Jacob ... the su[=m]e of fifty shillings."[605]

[Footnote 603: _Mass. Col. Rec._, I, 104.]

[Footnote 604: _Plym. Col. Rec._, VII, 101.]

[Footnote 605: _Ibid._, 109.]

Sometimes a parent joins with his aggrieved child in seeking reparation; as when "Richard Siluester, in the behalfe of his daughter, and Dinah Siluester in the behalfe of herselfe" recover twenty pounds and costs from John Palmer, "for acteing fraudulently against the said Dinah, in not [p=]forming his engagement to her in point of marriage."[606]

[Footnote 606: _Ibid._, 101.]

The proceedings of the Massachusetts courts contain the record of many similar suits under a variety of conditions. Some are ordinary cases of breach of promise.[607] In 1735 a woman was awarded two hundred pounds and costs at the expense of her betrothed who after jilting her had married another, although he had first beguiled her into deeding him a piece of land "worth £100."[608] Hopestill Aldrich in 1764 was not so successful. The higher court on appeal declined to give her damage, because after beginning her action against the faithless Darius Daniels she had married David Bowin, "who is still living and is her lawful husband."[609] A number of cases afford further evidence of the danger lurking in the New England doctrine of espousals, the indemnity sought being intended in part to punish personal wrongs committed under cover of pre-contract.[610]

[Footnote 607: For examples see _MSS. Records of the County Court
of Middlesex_ (Apr. 2, 1661), I, 185; _MSS. Early Court Files of
Suffolk_ (1663), No. 573; _MSS. Records of the Superior Court of
Judicature_ (1725-29), fol. 333; _ibid._ (1725-30), fol. 338;
_ibid._ (1730-33), fol. 196.]

[Footnote 608: _Ibid._ (1735-36), fol. 243.]

[Footnote 609: Case of Daniels _v._ Bowin _et ux._: _ibid._
(1764-65), fol. 4.]

[Footnote 610: Thus in 1686 John Row was sentenced for
"committing folly with Martha Beale, then servant to his father,
& publishing himself in marriage to her and now denying to
accomplish the marriage."--_MSS. Records of the County Court
of Middlesex_, IV, 218. For other cases of this kind see _MSS.
Records of the Superior Court of Judicature_ (1730-31), fol. 1;
_ibid._ (1745-46), fol. 253; _MSS. Early Court Files of Suffolk_
(Nov. 19, 1663), No. 600.]

Puritan lovers did not always hesitate to prosecute their parents for refusing marriage when permission had once been given. Such was the fate of Hope Allen, who admitted before the Massachusetts court that "he did give his consent y^t y^e said Mr. Deacon should haue his daughter;" and accordingly for breaking his word he was censured, and had to pay a fine of ten pounds for his "irregular procedure."[611] The action might take a still more interesting form, including both the recreant parents and the promised consort in the same complaint. In this way Richard Sutton alleges "against Moses Symonds and Sarah, his wife, and Elizabeth theire daughter, that shee, the said Elizabeth, hath made a promise of marriage vnto him, and is hindered by the parents ... from proceeding with her therin." The court after due consideration decides that Moses ought to pay the said Richard "the su[=m]e of three pounds, for satisfaction for his time and charges spent about the [p=]mises;" but not without kindly releasing the couple from their engagement, "vnless on second considerations they shall see cause to renew theire former couenants."[612]

[Footnote 611: _Mass. Col. Rec._, IV, Part II, 458.]

[Footnote 612: _Plym. Col. Rec._, V, 116.]

These illustrations would seem to show that the blighted hopes and disappointed affections of New England lovers were not judicially reckoned at an extortionate figure. But those were the days of "small change" in all domestic affairs. As a matter of fact, the colonists were a close-fisted, bargaining race;[613] and in no respect perhaps were they more prudent than in their matrimonial transactions. Sometimes very careful contracts were executed in court regarding the property rights of the future husband and wife.[614] Often before betrothal and almost invariably before wedlock an exact arrangement was made between the parents touching the marriage portion on either side. The "higgling of dowries," suggests Weeden, was one of the most "singular practices" of New England life.[615] Even paupers were provided a marriage portion at the county's charge.[616] No shrewder hand at a bargain existed than Judge Sewall, whose _Diary_ and _Letter-Book_ are crowded with illustrations of this and other matrimonial customs. In 1712 we find him planning a match between his daughter Mary and young Samuel Gerrish. So he dines with the father and "discourses" with him "about my Daughter Mary's Portion. I stood for making £550 doe: because now twas in six parts, the Land was not worth so much. He urg'd for £600. at last would split the £50. Finally Feb. 20. I agreed to charge the House Rent and Difference of Money, and make it up to £600."[617]

[Footnote 613: For many proofs of the niggardly economy and
exceeding "nearness" of the old New Englander see BLISS,
_Colonial Times on Buzzard's Bay_; WEEDEN, _Ecc. and Soc. Hist.
of N. E._; and especially the _Diary_ and _Letter-Book_ of SAMUEL
SEWALL.]

[Footnote 614: An example is afforded by the _Plym. Col. Rec._,
IV, 163, where a stipulation is entered into between a widow and
a widower about to marry. By this agreement the children are to
remain "att the free and proper and onely dispose of theire owne
naturall parents, as they shall see good to dispose of them." The
wife is to retain "all her house and land goods & cattles, that
shee is now possessed of, ... to dispose of them att her owne
free will." If the husband die first, she is to have "one third
pte ... of his estate that hee dieth possessed of ... during her
life;" while in case of her death, the husband's property is to
go to his heirs, "excepting her wearing apparrell and her bed
and bedding ... which shee shall and may giue att her death to
whom she pleaseth." For another such marriage agreement see _MSS.
Early Court Files of Suffolk_ (1671), No. 1063. In the _MSS.
Records of the Superior Court of Common Pleas for Middlesex_
(1707), I, 103, is a suit to recover a gift made to a fiancée as
legacy.]

[Footnote 615: WEEDEN, _Ecc. and Soc. Hist. of N. E._, I, 413;
_cf. ibid._, I, 420, II, 541 ff.; also EARLE, _Customs and
Fashions_, 62 ff., 43 ff.]

[Footnote 616: Thus in 1638 "Mary Joanes was consented to
be taken care of by the countrey, and at the countreyes
charge."--_Mass. Col. Rec._, I, 230. Four years later "It was
ordered the Treasurer should give Mary Joanes five pounds against
her Marriage."--_Ibid._, II, 20.]

[Footnote 617: SEWALL, _Diary_, in 5 _Mass. Hist. Coll._, VI,
336. In like spirit the judge "dickers" with Joseph Dudley,
whose daughter had been sought in marriage for Samuel Sewall,
Jr.: _idem_, _Letter-Book_, in 6 _Mass. Hist. Coll._, I, 279-81;
_Diary_, in 5 _Mass. Hist. Coll._, VI, 80.]

The worthy magistrate was not less thrifty in managing his own courtships, never for a moment allowing mere sentiment to get the better of prudence. From the outset he was lucky; for in 1676, according to tradition, he received as a dowry with his first wife, Hannah Hull, her weight in pine-tree shillings, which her father, the mint-master, measured out to him against her body in his own scales. In reality, his wife brought him much more than this fabled treasure; for six years after the wedding he came into the enjoyment of the mint-master's large estate, thus laying the foundation of his own fortune and official career.[618] Hannah lived with him more than forty years, bearing him seven sons and seven daughters. On her death the judge writes to a friend: "Wife expired on Satterday Oct. 19th, a little before Sun-Sett; and I lost my most constant lover, my most laborious Nurse; which produc'd a Flood of Tears in our Bed Chamber."[619]

[Footnote 618: "Her father died in six years, leaving his
fortune, which was large for that time, to his daughter and his
widow. It was practically one estate for the mother lived in the
most affectionate intimacy in Judge Sewall's family."--WEEDEN,
_Ecc. and Soc. Hist. of N. E._, I, 420; _cf._ HAWTHORNE,
_Grandfather's Chair_ (Boston, 1893), chap. vi, 459-64.]

[Footnote 619: SEWALL'S _Letter-Book_, in 6 _Mass. Hist. Coll._,
II, 83, 84 (letter of Jan. 25, 1718, referring to his wife's
death in 1717); _cf._ the _Diary_, in 5 _Mass. Hist. Coll._, VII,
143, 144.]