Chapter XII: Obligatory CIVIL Marriage in the New England Colonies (5)

Soon, however, he was able to stem the torrent of his grief, for on the sixth day of the next February he enters in his diary: "Wandering in my mind whether to lead a Single or a Married Life."[620] Indeed, several weeks before this, when his wife was hardly two months dead, his mind and feet had begun to wander in the direction of Madam Winthrop,[621] upon whom, in his usual kindly way, he had bestowed certain tokens of his regard.[622] But for the present the charms of Widow Winthrop had to yield to those of Widow Dennison, whose goodly estate he had come to admire through having drawn her husband's will.[623] Attending her home from the funeral of her late consort, he "prayed God to keep house with her."[624] This was in March. Presently he opens serious negotiations. He makes her numerous presents, among which are "A pound of Reasons and Proportionable Almonds;" a "Psalm-Book neatly bound in England with Turkey-Leather;" the "last two News Letters;" "Dr. Mathers Sermons very well bound," and "told her in it we were invited to a wedding;" a "pair of Shoe-buckles, cost 5^s 3^d;" and "Two cases with a Knife and a fork in each; one Turtle shell tackling: the other long with Ivory handles Squar'd, cost 4^s 6^d."[625] In November, after much visiting and chaffering, he came to the point. "I told her 'twas time now to finish our Business: Ask'd her what I should allow her; she not speaking; I told her I was willing to give Two [Hundred] and Fifty pounds per a[=n]um, during her life, if it should please God to take me out of this world before her. She answer'd she had better keep as she was, than give a Certainty for an uncertainty; she should pay dear for dwelling at Boston. I desired her to make proposals, but she made none. I had Thoughts of Publishment next Thorsday, the 6^{th}. But I now seem far from it. May God, who has the pity of a Father, Direct and help me."[626]

[Footnote 620: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, VII,
165.]

[Footnote 621: _Ibid._, 151, 163, 164.]

[Footnote 622: Feb. 3, 1718, he writes: "I sent Madam Winthrop,
Smoking Flax Inflamed, the Jewish Children of Berlin, and my
small vial of Tears."--_Diary_, in 5 _Mass. Hist. Coll._, VII,
164. On March 14 he sends her a copy of the _Berlin Jewish
Converts_, _ibid._, VII, 177.]

[Footnote 623: _Ibid._, 177 (March 19, 1718), 180.]

[Footnote 624: _Ibid._, 178, 179 (March 26, 1718).]

[Footnote 625: _Ibid._, 182, 187, 188, 189, 190, 199.]

[Footnote 626: _Ibid._, 202 (Nov. 1, 1718).]

This is by no means the end. The courtship drags along, and they continue to "higgle like hucksters and pedlers."[627] "She said she thought twas Hard to part with _All_, and have nothing to bestow on her Kindred. I said, I did not intend anything of the Movables, I intended all the personal Estate to be to her. She said I seem'd to be in hurry on Satterday ... which was the reason she gave me no proposals. Whereas I had ask'd her long before to give me proposals in Writing; and she upbraided me, That I who had never written her a Letter, should ask her to write." So the thrifty judge, although his "bowels" did "yern toward Mrs. Dennison," must even decide that God "in his Providence" directed him to "desist."[628] Later the widow grew more kind. On the following Lord's day she came to see him in the evening, walking all the way from Roxbury. She "ask'd pardon if she had affronted me;" and plainly let it be seen that she was not averse to the match, if only she were not called upon to "put all out of her Hand and power" and could "reserve something to bestow" on her deceased husband's friends "that might want." But, says Samuel, "I could not observe that she made me any offer of any part all this while." So "she went away in the bitter Cold, no Moon being up, to my great pain. I saluted her at parting."[629]

[Footnote 627: WEEDEN, _Ecc. and Soc. Hist. of N. E._, II, 542.]

[Footnote 628: SEWALL, _loc. cit._, 205 (Nov. 28, 1718).]

[Footnote 629: _Ibid._, 206, 207 (Nov. 30, 1718).]

Then the judge turned to Widow Tilly, whom he married on the next Thanksgiving day (October 29, 1719), though she pleaded her "Unworthiness of such a thing with much Respect."[630] But the union was short-lived; for in May of the next year "a very Extraordinary, awful Dispensation" came to the Judge. "About midnight," he writes, "my dear wife expired to our great astonishment, especially mine."[631]

[Footnote 630: _Ibid._, 225, 232, 233.]

[Footnote 631: _Ibid._, 255 (May 26, 1720).]

Already by the following December he wants God to "yet again provide such a good Wife for me, that I may be able to say I have obtained Favour of the LORD."[632] For in the meantime his mind has been "wandering" again toward Catherine Winthrop. But the gentle widow is now very coy and close at a bargain. After many visits and some interesting love passages,[633] the judge writes, she "was Courteous to me; but took occasion to speak pretty earnestly about my keeping a Coach: I said 'twould cost £100. per a[=n]um: she said twould cost but £40."[634] Clearly the issue was getting too sharply joined; and it is not wholly surprising that the lady was a trifle cool at her suitor's next visit.[635] Later he asked her "when our proceedings should be made publick: She said they were like to be no more publick than they were already. Offer'd me no Wine that I remember." She did not offer to help him on with his coat, nor at his request would she send her servant Juno to light him home.[636] It is to be feared that Catherine had not forgiven her suitor for leaving her for Widow Dennison, and was now getting "even." But the judge stood manfully to his arms. At the next meeting "I told her ... I was come to enquire whether she could find in her heart to leave that House and Neighborhood, and go and dwell with me at the South-end; I think she said softly, Not yet. I told her it did not ly in my Lands to keep a coach.... Told her I had an Antipathy against those who would pretend to give themselves; but nothing of their Estate. I would [give] a proportion of my Estate with my self. And I su[=p]os'd she would do so."[637] It goes without saying that when Sewall made his next call the lady was "not at home." After one or two more futile efforts[638] at coming to terms the grapes began to sour. The aged wooer somewhat spitefully closes this unlucky chapter of his courtships with the ungallant remark that "I did not bid her draw off her Glove as sometimes I had done. Her dress was not so clean as sometimes it had been. Jehovah jireh."[639] Thus Eros regained his sight.

[Footnote 632: Letter of Dec. 13, 1720, to Alexander Dummer, in
SEWALL'S _Letter-Book_, in 6 _Mass. Hist. Coll._, II, 122, 123.]

[Footnote 633: "Asked her to Acquit me of Rudeness if I drew
off her Glove. Enquiring the reason, I told her twas great
odds between handling a dead Goat and a living Lady. Got it
off.... Told her the reason why I came every other night was
lest I should drink too deep draughts of Pleasure. She had
talked of Canary, her Kisses were to me better than the best
Canary."--SEWALL'S _Diary_, _loc. cit._, 267.]

[Footnote 634: _Ibid._, 269.]

[Footnote 635: _Ibid._, 270.]

[Footnote 636: "I pray'd her that Juno might light me home, she
open'd the shutter, and said twas pretty light abroad; Juno was
weary and gon to bed."--_Ibid._, 271.]

[Footnote 637: SEWALL, _loc. cit._, 272.]

[Footnote 638: _Ibid._, 273, 274.]

[Footnote 639: _Ibid._, 275.]

Several other attempts prove not more successful in providing the venerable widower with a suitable place to rest his "weary Head in Modesty."[640] But at last, humbly confessing himself, "aged, and feeble, and exhausted," he offers himself as a husband to Mrs. Mary Gibbs, of Newton, who is all too yielding in her reply.[641] For with this gentle dame the astute wooer, erstwhile so meek, at once proceeds to drive the sharpest bargain in the long history of his courtships. As she had no property to leave him by will, he insists upon the following harsh conditions: "I Rode to Newtown in the Coach, and visited Mrs. Gibbs. Spake of the proposals I had intimated per Mr. H. Gibbs; for her Sons to be bound to save me harmless as to her Administration; and to pay me £100. provided their Mother died before me: I to pay her £50. per a[=n]um during her Life, if I left her a Widow. She said 'twas hard, she knew not how to have her children bound to pay that Sum; she might dye in a little time. Mr. Cotton, whom she call'd spake to the same purpose, spake of a Joynture. I said I was peremptory as to the indemnifying Bond; Offer'd to take up with that alone, and allow her forty pounds per a[=n]um."[642]

[Footnote 640: EARLE, _Customs and Fashions of Old New England_.]

[Footnote 641: SEWALL'S _Diary_, _loc. cit._, 299 (Jan. 12,
1722), 300.]

[Footnote 642: _Ibid._, 300, 301.]

These terms, "hard" as they were and again insisted upon with most unromantic bluntness,[643] were at length accepted by the amiable Mary; who, surviving her kindly though grasping spouse, was no doubt by his side, according to his wish, to "carry it tenderly"[644] with him when he passed to his last reckoning.

[Footnote 643: "Madam, These are kindly to salute you, and to
say, that the Omission of Answering one or two of my Letters, and
of coming to Town, makes it needful to enquire, what the plain
meaning of your letter of Jan^y. 30^{th} may be. 'I do chuse
to comply with your last proposal, of Releasing my children,
and Accepting of the sum you proposed.' The last Proposal was,
For your children, or some in their behalf, to give Bond,
to indemnify me from all debts contracted by you before the
Marriage; and from all matters respecting the Administration.
This I told you, I peremptorially insist on. I was to secure
you Forty pounds per a[=n]um during the term of your natural
Life, in case of your Survival. This proposal must be taken
entirely, every part of it together, and if the words '_Releasing
my Children_' intend a Releasing them from this Bond, my last
Proposal is not accepted by you."--_Ibid._, 303 (Feb. 10, 1722).]

[Footnote 644: The judge was almost tempted to bargain with his
intended spouse for affectionate treatment. Speaking with "Mr.
Dan Oliver," Feb. 2, 1722, he says: "Told, I hoped she was not so
Attached to her children, but that she would carry it Tenderly
to me; or else there would soon be an end of an Old Man. I said,
I su[=p]osed they would clothe her, Answered, no question; And
would be Tender of me."--_Ibid._, 302. On Sewall's courtships and
New England wedding customs see HOWE, _The Puritan Republic_,
chap. v, 111 ff.]

VI. SELF-GIFTA, CLANDESTINE CONTRACTS, AND FORBIDDEN DEGREES

The Separatist and the Puritan, regarding marriage as "purely a civil contractual relation," logically conceded that "the parties may marry themselves as they may make other contracts." But, "like all other civil institutions, this may be regulated by municipal law. It should therefore be sanctioned by the civil authority;" and for that reason persons may be fined for marrying without observing the forms prescribed by the statutes.[645] Nevertheless such legal restraint, however wholesome and reasonable, seems to have been resented by the more radical as an interference with individual liberty; though doubtless the disregard of the marriage laws was in part due to the rudeness of an early society.

[Footnote 645: SHIRLEY, "Early Jurisprudence of New Hamp.,"
_Procds. New Hamp. Hist. Soc._ (1876-84), 307.]

Instances of self-betrothal and self-_gifta_ seem to have been frequent in all the New England colonies. Thus, in 1678, Edward Wanton was fined £10 by the general court of Plymouth for "marrying himself," and Thomas Boarman paid £5 for the same offense. In 1684 William Gifford was fined fifty shillings for contracting a "disorderly marriage."[646] More interesting is the case of Edward Perry, on Cape Cod, who appears to have been guilty of self-marriage in 1654. For this he was fined £5; and Thomas Tupper, of Sandwich, for neglecting to perform the ceremony, "was 'disallowed' by the court from solemnizing marriages in future."[647] Then "magistrate Prence, when passing by on his return from court to Eastham, was to marry him rightly. Perry refused to be re-married, and was fined £5 more, with the discouraging notice that his fine would be repeated every three months till he complied."[648]

[Footnote 646: For these cases see GOODWIN, _Pilgrim Republic_,
599.]

[Footnote 647: FREEMAN, _Hist. of Cape Cod_, I, 208.]

[Footnote 648: GOODWIN, _loc. cit._]

Marriages by the primitive form of "hand-fasting" were not unknown in Massachusetts. An intelligent French refugee, who visited Boston two years after the revocation of the Edict of Nantes, writes that "there are those who practice no Formality of Marriage except joining Hands, and so live in Common."[649] But the most celebrated instance of self-_gifta_ is the case of Governor Richard Bellingham, who in 1641 entered into a private marriage with Penelope Pelham, herself "about forming a contract with another."[650] "Two errors more," says Winthrop, "he committed upon it. 1. That he would not have his contract published where he dwelt, contrary to an order of court. 2. He married himself contrary to the constant practice of the country."[651] The governor was therefore indicted for his offense by the grand jury; but "he declined to leave his place on the bench" over which he presided, "in order to take a position in the dock, and thus 'escaped both trial and punishment.'"[652] The secretary "postponed the case amidst excitement, and it was not again called up."[653]

[Footnote 649: SHURTLEFF, _Top. and Hist. Description of Boston_,
51.]

[Footnote 650: GOODWIN, _loc. cit._]

[Footnote 651: WINTHROP, _Hist. of New England_, II, 51, 52. One
might cheerfully forgive Governor Winthrop, had his sense of
historical propriety suffered him to go farther into the details
of the marriage customs. He apologizes parenthetically: "I would
not mention such ordinary matters in our history, but by occasion
of some remarkable accidents."]

[Footnote 652: MORSE, in _Mem. Hist. Bost._, IV, 572. The _MSS.
Records of the County Court of Middlesex_ (Apr. 1, 1656), I, 80,
contain the following case: "Mr. Joseph Hills being presented by
the grand jury for marrying of himself contrary to the law of the
Colony (page 38 of the old book); freely acknowledged his offence
and his misunderstanding the grounds whereon he went, which he
now confessed to be unwarrantable. Admonished by the court."]

[Footnote 653: GOODWIN, _loc. cit._ See further on Bellingham's
marriage HILDRETH, _Hist. of U. S._, I, 279; _Mem. Hist. Bost._,
I, 575.]

In spite of the constantly increasing severity of the penalties, clandestine marriages gave the lawmaker much trouble.[654] This is plainly revealed by the laws, already cited, relating to banns, consent, registration, and celebration,[655] especially by those of Rhode Island. The act of 1647 provides "that no contract or agreement between a Man and a Woman to owne each other as Man and Wife, shall be owned from henceforth threwout the Whole Colonie as a lawfull marriage, nor their Children or Issue so coming together to be legitimate or lawfullie begotten," but such as conform to the statute.[656] The clause relating to the issue of irregular marriages is noteworthy; for it is contrary to the usual tenor of the colonial laws, which--anticipating the policy of William III.--usually imposed severe penalties upon the offenders without affecting the legitimacy of the children. But even so stringent a remedy did not suffice. A new law in 1665 enforces that of 1647, adding the penalty prescribed for "fornication" for non-observance; but making the important exception in favor of existing irregular marriages "that any persons now living within the confines expressed in our late charter, ... that are reputed to live together as man and wife by the common observation or account of there neighbours before this act was passed, shall not come vnder any of the censures, fines, or penaltyes in any of the fore premised acts or orders, or in this present [order] concearning marriages," though "there may have been some neglect of the due observation of the rules and directions to that end therein contained."[657] It appears that "some persons" had "taken advantage of the law" to render the children of unregistered marriages illegitimate. An explanatory statute was therefore enacted in 1698 declaring such marriages lawful;[658] and in the subsequent legislation of this colony the lawmaker was content to punish the parties to irregular marriages without affecting the status of the offspring.[659]

[Footnote 654: Complaints of clandestine marriages may be found
in the New Hampshire records: see _Provincial Papers_, IV, 832;
_New Hamp. Hist. Coll._, VIII, 117, 118. There is an unsettled
case of alleged clandestine marriage in the _MSS. Early Court
Files of Suffolk_ (March, 1699-1700), Nos. 4590, 4663.]

[Footnote 655: See _Conn. Col. Rec._, I, 47, 48, 540; _New Haven
Col. Rec._, II, 599; and the Massachusetts laws relating to the
districts of ministers and justices, mentioned above.]

[Footnote 656: _R. I. Col. Rec._, I, 187; and STAPLES,
_Proceedings of the First Assembly_, 47, 48.]

[Footnote 657: _R. I. Col. Rec._, II, 104.]

[Footnote 658: _Ibid._, III, 361, 362; also in RIDER'S reprint of
the _Laws and Acts_ (1705), 44.]

[Footnote 659: See the act of 1701: _R. I. Col. Rec._, III, 435,
436. Compare RIDER'S _Laws and Acts_ (1705), 50; and his reprint
of _Charter and Laws_ (1719), 12, 13.]

The clergy of New England, and especially those of Massachusetts, were much agitated over the question of the degrees of relationship which should be prohibited in wedlock. Marriage of first cousins, by affinity as well as by blood, and with a deceased wife's sister was strongly opposed. That of cousins german had been legalized by a statute of Henry VIII. in 1540;[660] and the earliest fruit of this act was the marriage of that monarch with Catherine Howard, first cousin of Ann Boleyn, his former wife.[661] Within less than two years thereafter Catherine lost her head; and Sewall, who like the Mathers regarded such marriages as incestuous, draws a grim moral from her fate.[662] Indeed, the Puritans, were in sore straits, fearing lest the "English Nation," while rejecting the excessive strictness of the Roman church in this regard, had gone "beyond the golden mean towards the other Extream."[663] In their anxiety to obey the Mosaic law they even exceeded its requirements.[664] Already in 1679 the general court, in reply to interrogation, had decided that marriage with a deceased wife's sister was unlawful,[665] thus taking the position which has been stubbornly maintained ever since by the English House of Lords. Interest in the matter seems, however, to have culminated in 1695. In that year a meeting of the ministers of Boston, Charlestown, and Dorchester, with Increase Mather at their head, came to the same conclusion as the general court in 1679.[666] This led directly to the passage of the celebrated law against incestuous marriages of the following June,[667] by which the general court, though not taking "in hand to determine what is the whole breadth of the divine commandment," proceeded, among other prohibitions, to forbid marriage with a wife's sister or niece.[668] For violation of the law, we have already seen, the culprit was condemned, as in the case of adultery, to wear the "scarlet letter." This act[669] remained nominally in force until after the Revolution; but the statute of 1785 in which these prohibitions do not appear was adopted seemingly without discussion.[670]

[Footnote 660: By 32 H. VIII., cap. 38: _Statutes at Large_
(London, 1763), II, 298; SEWALL'S _Letter-Book_, in 6 _Mass.
Hist. Coll._, I, 351-53, 369, 370.]

[Footnote 661: "The greatest good the Land got by this Match,
was a general leave to marry Cousin Germans, formerly prohibited
by the _Crown_, and hereafter permitted by the _Co[=m]on Law_.
A door of lawfull liberty, left open by God in Scripture; shut
by the Pope for his privat profit; opend again by the King,
first, for his own admittance ... and then for the service of
such Subjects as would follow him."--FULLER, _English Worthies_
(London, 1840), II, 352; SEWALL'S _Letter-Book_, in 6 _Mass.
Hist. Coll._, I, 369. Compare his letter of Feb., 1603/4, in _op.
cit._, 290-93.]

[Footnote 662: "They that will, from this Example, be fond of
Marrying Cousin-Germans, Let 'em!"--_Ibid._, II, 19.]

[Footnote 663: _Ibid._; _cf. ibid._, I, 290-93, where Sewall
opposes the marriage of his cousin John Sewall with the _widow_
of the latter's cousin german; also _ibid._, I, 17; and his
_Diary_, in 5 _Mass. Hist. Coll._, V, 96, 424, for further
illustrations.]

[Footnote 664: The Mosaic code does not clearly prohibit marriage
with a _deceased_ wife's sister: Lev., chaps. 18, 20; Deut.,
chaps. 23, 27. _Cf._ MIELZINER, _Jewish Law of Marriage and
Divorce_, 31-40; and chap. xi, sec. ii, _b_.]

[Footnote 665: WHITMORE, _Col. Laws of Mass._ (1672-86), 102;
_Mass. Col. Rec._, IV, Part II, 454.]

[Footnote 666: They published the decision in a printed tract of
eight pages: _The Answer of Several Ministers to that Case of
Conscience whether it is Lawful for a man to Marry his Wife's own
sister_: GODDARD, in _Mem. Hist. Bost._, II, 415 n. 2.]

[Footnote 667: "Friday, June 14. The Bill against Incest was
passed with the Deputies, four and twenty Nos, and seven and
twenty Yeas. The Ministers gave in their Arguments yesterday in
Writing; else it had hardly gon, because several have married
their wives sisters, and the Deputies thought it hard to part
them. 'Twas concluded on the other hand, that not to part them,
were to make the Law abortive, by begetting in people a conceipt
that such Marriages were not against the Law of God."--SEWALL,
_Diary_, in 5 _Mass. Hist. Coll._, V, 407; _cf._ MCKENZIE, in
_Mem. Hist. Bost._, II, 197.]

[Footnote 668: But, on the other hand, marriage with a husband's
brother or nephew is not expressly prohibited; _cf._ 5 _Mass.
Hist. Coll._, V, 407, note.]

[Footnote 669: _Acts and Resolves_, I, 209; also _Charters and
General Laws of Mass._, 283. GODDARD, _Mem. Hist. Bost._, II, 415
n. 2, is plainly in error when he says that this act "suggested
the leading incident of HAWTHORNE'S _Scarlet Letter_." It
probably originated in the similar law, already mentioned, for
the punishment of adultery which is expressed in nearly the same
words: see _Acts and Resolves_, I, 171.]

[Footnote 670: 5 _Mass. Hist. Coll._, V, 407 n. 1.]

The colonial laws on this subject were not allowed to slumber. From the records of the Connecticut court of assistants, for instance, it appears that in May, 1694, Nathaniel Finch is complained of "for that he hath unlawfully married to Elizabeth Hemmeway," sister "of the said Finch his first wife." The pleas of Finch's attorney are "esteemed to be insufficient, and also of an offensive nature." Accordingly, having considered all the facts of the case, the "rules of God's word, the judgment of most able Divines, and the Laws of this colony," the court finds the "said marriage to be incestuous and unlawful," and therefore declares it "to be wholly null and void;" further relegating the case to the county court to be held at New Haven the next June, "to lay such punishment on the said Finch for his said offence as the nature thereof doth require."[671]

[Footnote 671: _Historical Magazine and Notes and Queries_, II,
301.]

While the Massachusetts act of 1695 does not expressly prohibit a woman from wedding her husband's brother, a passage in Sewall's _Diary_ shows that such unions were already treated as unlawful. On December 25, 1691, he writes, the "marriage of Hana Owen with her Husband's brother, is declar'd null by the court of Assistants. She commanded not to entertain him; enjoin'd to make a confession at Braintrey before the Congregation on Lecture Day, or Sabbath, pay fees of court and prison," and "to be dismissed."[672]

[Footnote 672: SEWALL'S _Diary_, in 5 _Mass. Hist. Coll._, V,
354. For the case see NOBLE'S _Recs. of the Court of Assistants_,
I, 361. Samuel Newton, of Marlborough, married his uncle's widow
and had two children by her. This marriage was judged void "by
the word of God, as also by the law of England": _ibid._, 342.
_Cf._ COWLEY, _Our Divorce Courts_, 30, 31.]

VII. SLAVE MARRIAGES

Finally in this connection a word regarding the treatment of slave marriages in New England may not be wholly out of place. With respect to the morality of slavery and the slave trade as viewed by the Puritan the record is perfectly clear. He was no better and no worse than his contemporaries. In his eyes the commerce in human chattels, whether red, black, or white,[673] was as legitimate a business as the handling of West India molasses; though like the Spaniard he may sometimes have excused or extolled it as affording a field for missionary work. "The seventeenth century," observes Weeden, "organized the new western countries, and created an immense opportunity for labor. The eighteenth coolly and deliberately set Europe at the task of depopulating whole districts of Africa, and of transporting the captives, by a necessarily brutal, vicious, and horrible traffic, to the new civilizations of America.... New England entered upon this long path of twisted social development--the wanton destruction of barbaric life in the hope of new civilized life, this perversion of the force of the individual barbarian into an opportunity for social mischief--with no more and no less consciousness than prevailed elsewhere at that time. The Winthrops and other Puritan colonists asked and received Indian captives for slaves as freely as any partisan went for loot or plunder."[674]

[Footnote 673: On white slaves in New England, and elsewhere in
America, see the valuable article of BUTLER, "British Convicts
Shipped to American Colonies," _American Historical Review_, II,
12-33.]

[Footnote 674: WEEDEN, _Ecc. and Soc. Hist. of New England_,
II, 449, 450. _Cf._ his entire discussion of the "African Slave
Trade" in New England, _ibid._, 449-72; and BANCROFT, _Hist. of
U. S._ (New York, 1888), II, 268-80.]

With respect to matrimonial rights nothing can be more misleading than the self-gratulations of writers who have treated colonial history from what Charles Francis Adams has aptly called the "filio-pietistic" point of view.[675] Thus in his early edition Bancroft, referring to the alleged mitigating character of Massachusetts legislation, securing to the slave such protection "as the Hebrew scriptures seemed to enjoin," declares that "this brought about a total modification of the character of negro slavery by giving to the slave the rights of marriage and the family."[676] Palfrey goes even farther in his zeal, solemnly assuring us that "from the reverence entertained by the Fathers of New England for the nuptial tie, it is safe to infer that slave husbands and wives were never parted."[677] In like spirit statesmen, jurists, and historians have reiterated the assertion that slavery was not hereditary in Massachusetts. "In all her annals," says Charles Sumner, "no person was ever born a slave" on her soil; and if, in fact, "the issue of slaves was sometimes held in bondage, it was never by sanction of any statute or law of Colony or Commonwealth."[678] Similar statements are made by Hurd, Washburn, and Belknap.[679] Justice Gray declares that "previously to the adoption of the State Constitution in 1780 negro slavery existed to some extent, and negroes held as slaves might be sold, but all children of slaves were by law free."[680] The unsupported dictum of Palfrey is equally confident. "In fact," he says, "no person was ever born in legal slavery in Massachusetts."[681]

[Footnote 675: See his admirable _Massachusetts: Its History and
Historians_ (Boston, 1893).]

[Footnote 676: Compare MOORE'S article "Slave Marriages in
Mass.," in DAWSON'S _Hist. Mag._, 2d series, V (Feb., 1869), 135,
to which I am much indebted.]

[Footnote 677: PALFREY, _Hist. of New England_, II, 30, note;
_cf._ MOORE, _loc. cit._, 135-37.]

[Footnote 678: SUMNER, in his speech in the Senate, June 28,
1854: _Works_, III, 384.]

[Footnote 679: According to HURD, _Law of Freedom and Bondage_,
I, 225, "the involuntary servitude of Indians and negroes in
the several colonies originated under a law not promulgated by
legislation, and rested upon the prevalent views of universal
jurisprudence, or of the _law of nations_, supported by the
express or implied authority of the home Government." Compare
WASHBURN, "The Extinction of Slavery in Mass.," 4 _Mass. Hist.
Coll._ (1857), IV, 333-46; the same in _Procds. Mass. Hist. Soc._
(1855-58), 188 ff.; and BELKNAP'S answer to TUCKER'S _Queries_
(1795), in 1 _Mass. Hist. Coll._, IV, 191-211, which on the
points under consideration is very superficial and misleading.]

[Footnote 680: See Justice Gray's note to the case of Oliver
_v._ Sale: _Quincy's Reports_, 29. The authorities there cited
are misleading and do not establish the assertions quoted. The
well-known apology for Massachusetts slavery by NATHAN DANE in
his _Abridgment_, II, 413, 426, 427, is equally unsupported
by the facts. The same view as that of Gray is taken by Chief
Justice Dana in Littleton _v._ Tuttle (1796): 4 _Mass. Reports_,
128, note; by Chief Justice Shaw in Commonwealth _v._ Aves: 18
_Pickering's Reports_, 208, 209; and it is repeated in _Cushing's
Reports_, 410. On the other hand, in Winchendon _v._ Hatfield:
4 _Mass. Reports_ (1806), 123, Chief Justice Parsons correctly
says "slavery was introduced" in Massachusetts "soon after its
first settlement, and was tolerated until the ratification of the
present constitution" in 1780. "The issue of the female slave,
according to the maxim of the civil law, was the property of her
master." The same opinion is held in Perkins, Town Treasurer of
Topsfield _v._ Emerson (1799): DANE'S _Abridgment_, II, 412; and
by Chief Justice Parker in Andover _v._ Canton (1816): 13 _Mass.
Reports_, 551, 552. In 1865 the errors of Gray, Dane, Webster,
and others were fully exposed by MOORE, _Notes on the History
of Slavery in Mass._, 10 ff., 22 ff., 94 ff., 98 ff.; yet it
is curious to see BISHOP, _Marriage, Divorce, and Separation_
(Chicago, 1891), I, 179 n. 1, 282, still accepting Gray's dictum
as authority.]

[Footnote 681: PALFREY, _Hist. of New England_, II, 30, note.]

Since the appearance of Moore's able monograph it is perhaps needless to explain that the facts are against these comfortable theories. Slavery was authorized by statute in Massachusetts under sanction of the Mosaic law; and so the children of slave mothers were also slaves.[682] The evils of the institution may, indeed, have been somewhat mitigated by the simple industrial conditions which then prevailed. The climate and soil were ill suited to slave labor. Occasionally there may have been a mind far enough ahead of the age to perceive dimly the social danger lurking in the system. Almost the only clear voice raised against it is that of Samuel Sewall,[683] whose practice nevertheless was not always consistent with his doctrine.[684] Mixture of race was not favored. But not until 1705 was intermarriage between a white person and a negro or mulatto forbidden by statute.[685] Through Sewall's influence the prohibition was not then extended to Indians;[686] and he succeeded in having a clause retained in the act enjoining that "no master shall unreasonably deny marriage to his negro with one of the same nation."[687] A passage in his diary shows that the laws relating to banns, as also, it is safe to infer, those regarding celebration and registration, were applied in the case of such unions; while at the same time we are given a pleasing picture of the humane treatment which slaves sometimes received from their masters. On September 26, 1700, he records that "Mr. John Wait and Eunice his Wife, and Mrs. Debora Thair come to Speak to me about the Marriage of Sebastian, Negro Serv^t of said Wait, with Jane, Negro Serv^t of said Thair. Mr. Wait desired they might be published in order to Marriage. Mrs. Thair insisted that Sebastian might have one day in six allow'd him for the support of Jane, his intended wife and her children, if it should please God to give her any. Mr. Wait now wholly declin'd that, but freely offer'd to allow Bastian Five pounds, in Money [=p] a[=n]um towards the Su[=p]ort of his children [=p] said Jane (besides Sabastians cloathing and Diet). I persuaded Jane and Mrs. Thair to agree to it, and so it was concluded; and Mrs. Thair gave up the Note of Publication to Mr. Wait for him to carry it to W^m Griggs, the Town Clerk, and to Williams in order to have them published according to law."[688]

[Footnote 682: Compare sec. 91 of the "Body of Liberties," upon
which the apologists have mainly rested their case, with the
later version of the provision: WHITMORE, _Col. Laws of Mass._
(1660-72), 53, 125; _ibid._ (1672-86), 10; and read MOORE'S
convincing argument as to the significance of the altered
wording: _Notes on the Hist. of Slavery in Mass._, 10-18. For
Connecticut see FOWLER, "The Historical Status of the Negro,"
in DAWSON'S _Hist. Mag._, 3d series, III, 12-18, 81-85, 148-53,
260-66; STEINER, "Hist. of Slavery in Conn.," _J. H. U. S._, XI,
371-452; and HURD, _Law of Freedom and Bondage_, I, 267 ff.]

[Footnote 683: In 1700 Sewall, then a judge of the superior
court, wrote an anti-slavery tract entitled _The Selling of
Joseph_. It is reprinted in the _Procds. Mass. Hist. Soc._
(1863-64), 161-65; with the _Diary_ in 5 _Mass. Hist. Coll._,
VI, 16-20, note; and in MOORE, _Notes on Hist. of Slavery in
Mass._, 83-87. The next year JOHN SAFFIN, a judge of the same
court, replied to Sewall in _A Brief and Candid Answer_ (Boston,
1701); reprinted by MOORE, _op. cit._, 251-56. Compare SEWALL'S
letter _To the Rev^d. & aged Mr. John Higginson_ (Apr. 13,
1706), and his extract from the _Athenian Oracle_, II, 460-63,
both reprinted by MOORE, _op. cit._, 89-94. Sewall favored a law
requiring "that all importers of Negroes shall pay 40 shillings
per head to discourage the bringing of them." _Cf._ BLISS, _Side
Glimpses from the Col. Meeting-House_, 21; WEEDEN, _Ecc. and Soc.
Hist._, II, 450.]

[Footnote 684: According to Bliss, "as time passed on and
the slave trade flourished," Sewall "must have dismissed his
anti-slavery opinions;" for the following advertisement appears
in the Boston _News-Letter_ of June 23, 1726: "To be sold by Mr.
Samuel Sewall at his House in the Common, Boston, several likely
young Negro Men & Boys Just Arrived."--_Side Glimpses from the
Col. Meeting-House_, 21.]

[Footnote 685: "An Act for the better preventing of a spurious
and mixt issue" (Dec. 5, 1705): _Acts and Resolves_, I, 578,
579; _Charters and Gen. Laws_, Appendix, 748: "Be it enacted ...
that none of her majesty's English or Scottish Subjects, nor of
any other Christian nation within this province, shall contract
matrimony with any Negro or Molatto: nor shall any ... presume
to join any such in Marriage, on pain of forfeiting ... _fifty
pounds_."]

[Footnote 686: By the act of 1786 intermarriage of whites with
Indians, negroes, and mulattoes is forbidden.]

[Footnote 687: Of the bill for the act of 1705 SEWALL writes:
"Deputies send in a Bill against fornication or Marriage of White
men with Negros or Indians; with extraordinary penalties.... If
it be pass'd, I fear twill be an O[=p]ression provoking to God,
and that which will promote Murders and other Abominations. I
have got the Indians out of the Bill, and some mitigation for
them [the Negroes] left in it, and the clause about their Masters
not denying their Marriage." _Diary_: in 5 _Mass. Hist. Coll._,
VI, 143.]

[Footnote 688: _Ibid._, 22. The _MSS. Records of the General
Sessions of Suffolk_ (Jan. 30, 1709-10) contain the following
evidence: "Upon reading the Petition of Jack Negroman Servant
... relating to his ... being Married to Esther a Negro Woman
Servant [to another master] ... Ordered that [he] ... be not
denyed marriage provided he attend the Directions of the law for
the Regulation of Marriages." Compare "Flora's case" (1758) in
_MSS. Records of the Superior Court of Judicature_ (1757-59),
295, where the court held that the child of a female slave "never
married according to any of the Forms prescribed by the Laws of
this Land," by a person supposed also to be a slave, was not a
bastard. From this decision it is argued that in Massachusetts
all actual marriages were deemed good without any formal
solemnization or the presence of priest or magistrate. _Cf._
BISHOP, _Mar., Div., and Sep._, I, 179.]

Examples of such kindly usage were doubtless not uncommon among New England slave-owners, just as they were often found at all times in the South. But it is vain to apologize for a system, wicked and corrupting in itself, on the ground of individual benevolence or of laws which inconsistently in certain particulars seem to recognize the spiritual and social equality of human chattels. In a community where a black man or woman for sexual misconduct with a member of the favored race was condemned by statute to be sold into another province;[689] where Indian prisoners were divided among the captors, and sold as legitimate spoil;[690] where African fathers and mothers, bought on their native soil for watered rum with short measure, were shipped across the ocean in stifling death-traps,[691] to be "knocked down" from the auction block to the highest bidder,[692] it seems rather more than absurd to assume that under the benign influence of Puritan religion and morality slave wives and husbands were never parted through the lust or greed of their owners. Nor in general was the alleged hope of converting the "benighted heathen to enjoy the blessings of a Gospel dispensation" more than a soothing balm to quiet the incipient throes of a rudimentary conscience in this regard.[693] Nay, in New England as elsewhere, the Christianizing of the blacks was sometimes actually discouraged, lest it should put in jeopardy the white man's property in them. During the seventeenth and eighteenth centuries a typical "case of conscience" arose. Would not the baptism of a slave in effect be a dangerous admission of his spiritual equality with the master? "Could an intelligent being, who, through the Mediator, had participated in the spirit of God, and by his own inward experience had become conscious of a Supreme Being, and of relations between that Being and humanity be rightfully held in bondage? From New England to Carolina, the 'notion' prevailed that 'being baptized is inconsistent with the state of slavery;' and this early apprehension proved an obstacle to the 'conversion of these poor people.' The sentiment was so deep and so general that South Carolina in 1712, Maryland in 1715, Virginia repeatedly from 1667 to 1748, set forth by special enactments that baptism did not confer freedom."[694]

[Footnote 689: By the act of 1705 already cited: _Acts and
Resolves_, I, 578.]

[Footnote 690: So in the Pequot War: 4 _Mass. Hist. Coll._, III,
360; in King Philip's War; and by the _Articles of Confederation_
(1643), in _Plymouth Col. Rec._, IX, 4. Compare MOORE, _Notes on
Hist. of Slavery in Mass._, 1-10, 30-40.]

[Footnote 691: For an interesting discussion of this point see
BLISS'S chapter on "Rum and Slavery," _Side-Glimpses from the
Col. Meeting-House_, 12 ff.; and WEEDEN, _Ecc. and Soc. Hist._,
II, 449-72. Such men as Peter Faneuil and Thomas Amory, of
Boston, were "deep" in the rum and slavery business: BLISS, _op.
cit._, 15.]

[Footnote 692: For examples of advertisements of slave auctions
in New England see BLISS, _op. cit._, 15-19.]

[Footnote 693: "A deacon of the church at Newport esteemed the
slave trade with its rum accessories as home missionary work. It
is said that on the first Sunday after the arrival of his slaves
he was accustomed to offer thanks 'that an overruling Providence
had been pleased to bring to this land of freedom another
cargo of benighted heathen to enjoy the blessings of a Gospel
dispensation.'"--BLISS, _op. cit._, 22. In general on the slave
trade as missionary work see FROUDE, _History of England_, VIII,
439.]

[Footnote 694: BANCROFT, _Hist. of U. S._ (New York, 1888),
II, 275, 276. On this subject see BRUCE, _Economic Hist. of
Virginia_, II, 94-98; the discussion by FISKE, _Old Virginia and
Her Neighbors_, I, 16; II, 192-94; and GOODWIN, _The Colonial
Cavalier_, 178, who says: "Baptism was permitted to the slave,
but with the distinct understanding that it was to make no
difference in the condition of bondage of these brothers in
Christ." The Virginia law of 1667 will be found in HENING,
_Statutes_, II, 260.]

Naturally the Puritan was deeply exercised by the same scruples. He sorely dreaded lest through extending the means of grace to his serf Christ should inadvertently be put "in bondage." But he solved the problem in the same way as his southern brother--at the expense of the bondman. In Massachusetts as in Rhode Island slavery was consecrated "without regard to the religion of the slave."[695] Accordingly in 1696 "the ministers of Boston" submitted to the general court "That y^e wel-knowne Discouragem^t upon y^e endeavours of masters to Christianize their slaves, may be removed by a Law which may take away all pretext to Release from just servitude, by receiving of Baptisme." But to the credit of the court, we are told, "this proposal was not noticed."[696] Over forty years later a different result was reached by the clergy of Connecticut. At a meeting of the General Association for that colony in 1738, "It was inquired--whether the infant slaves of Christian masters may be baptized in the right of their masters--they solemnly promising to train them in the nurture and admonition of the Lord: and whether it is the _duty_ of such masters to offer such children and thus religiously to promise. Both questions were affirmatively answered."[697] Thus the negro of Connecticut was admitted to the covenant of grace without jeopardizing his owner's chattel interest in his body.

[Footnote 695: It was consecrated "sans égard à la religion de
l'esclave": CARLIER, _Histoire du peuple américain_, I, 364;
_cf._ also HILDRETH, _Hist. of U. S._, I, 372.]

[Footnote 696: BLISS, _op. cit._, 92.]

[Footnote 697: Taken from MOORE, _Notes on Hist. of Slavery in
Mass._, 92, note, who cites _Records as Reported by Rev. C.
Chapin, D.D., Quoted in Jones's Religious Instruction of the
Negroes_, 34. _Cf._ STEINER, "Hist. of Slavery in Conn.," _J. H.
U. S._, XI, 386.]

The attitude of Massachusetts slave-owners on this problem is revealed in Sewall's "question" from the _Athenian Oracle_: "What then should hinder but these be _Baptized_? If only the Covetousness of their Masters, who for fear of losing their Bodies, will venture their Souls; which of the two are we to esteem the greater _Heathens_? Now that this is notorious Matter of Fact, that they are so far from persuading those poor Creatures to Come to _Baptism_, that they discourage them from it, and rather hinder them as much as possible, though many of the wretches, as we have been informed, earnestly desire it; this we believe, none that are concern'd in the Plantations, if they are ingenuous, will deny, but own they don't at all care to have them Baptized. Talk to a _Planter_ of the _Soul_ of a _Negro_, and he'll be apt to tell ye (or at least his _Actions_ speak it loudly) that the Body of one of them may be worth twenty Pounds; but the Souls of an hundred of them would not yield him one Farthing; and therefore he's not at all solicitous about them, though the true Reason is indeed, because of that Custom of giving them their Freedom, after turning Christians." Whether this custom be "reasonable" the writer doubts; for neither the "Father of the _Faithful_" nor St. Paul commands masters to liberate their slaves and Christianity does not "alter any _Civil Right_." In the "mean time, if there be such a Law or Custom for their _Freedom_, to encourage 'em to Christianity, be it reasonable or otherwise, this is certain, that none can excuse those who for that Reason should in any way hinder or discourage 'em from being Christians; some of whose excuses are almost too shameful to repeat, since they seem to reflect on the Christian Religion, as if that made Men more untractable and ungovernable, than when bred in Ignorance and Heathenism."[698]

[Footnote 698: _Athenian Oracle_, II, 460-63: in MOORE, _Notes on
Hist. of Slavery in Mass._, 93, 94.]

Much of the same casuistry is manifested in dealing with the question of slave marriages. A bondman might be made amenable to the law of banns and celebration; but his continued enjoyment of marital rights and family life was absolutely precarious. As Moore suggests, the proviso of the act of 1705 forbidding the "unreasonable denial of marriage to negroes is very interesting. Legislation against the arbitrary exercise and abuse of authority proves its existence and the previous practice."[699] Besides, the adoption of that law was prompted perhaps as much by self-interest as by regard for morality. It was in effect a prudent police ordinance. Masters were liable for the legal fines imposed on their slaves for sexual offenses. It might be cheaper and less troublesome to allow orderly wedlock. "Moreover it is too well known," writes Sewall, "what Temptations Masters are under, to connive at the Fornication of their Slaves; lest they should be obliged to find them Wives, or pay their Fines. It seems to be practically pleaded that they might be Lawless; 'tis thought much of, that the Law should have satisfaction for their Thefts, and other Immoralities; by which means, _Holiness to the Lord_ is more rarely engraven upon this sort of servitude. It is likewise most lamentable to think, how in taking Negroes out of _Africa_, and selling of them here, That which God has joined together, men do boldly rend asunder; Men from their Country, Husbands from their Wives, Parents from their Children. How horrible is the Uncleanness, Mortality, if not Murder, that the ships are guilty of that bring great Crouds of these miserable Men and Women. Methinks when we are bemoaning the barbarous Usage of our Friends and Kinsfolk in _Africa_: it might not be unreasonable to enquire whether we are not culpable in forcing the _Africans_ to become Slaves amongst ourselves."[700]

[Footnote 699: MOORE, _op. cit._, 55.]

[Footnote 700: SEWALL, _The Selling of Joseph_: in 5 _Mass. Hist.
Coll._, VI, 17, 18.]

For another reason families were in constant danger of being separated. The breeding of slaves was not generally regarded as convenient or profitable in New England. According to Belknap, "negro children were considered an incumbrance in a family; and when weaned, were given away like puppies," and they were "publickly advertised in the news-papers" to be so disposed of.[701]

[Footnote 701: BELKNAP'S answer to TUCKER'S _Queries_: in 1
_Mass. Hist. Coll._, IV, 200; _cf._ MOORE, _Notes on Hist. of
Slavery in Mass._, 57.]

That there was something grotesque in using the solemn ritual of the church in the marriage of slaves was faintly realized. In 1748 Rev. Noah Hobart "challenged the want of flexibility in the forms of the Liturgy of the Church of England, as tending 'to introduce irreligion and profaneness'--especially in the use of the office of Matrimony for marriages contracted between slaves." The use of the phrase "with all my worldly goods I thee endow, in the name of the Father, and of the Son, and of the Holy Ghost" he regarded as particularly sacrilegious, although the prayers employed by the Congregational minister at slave weddings were equally profane.[702]

[Footnote 702: MOORE, _Slave Marriages in Mass._: DAWSON'S _Hist.
Mag._, 2d series, V, 136, reprinting HOBART'S _Serious Address
to the Episcopal Separation in New England_ (1748), 77, 78;
and quoting in reply DR. JOHN BEACH'S _Calm and Dispassionate
Vindication_, 39, who in logic characteristic of the age argues
in "substance that as a Slave was capable of being made free,
and so of having property in a large estate, there was no
profaneness" in the use of the phrase mentioned.]

In at least one instance a sufficiently flexible special ritual was composed which very frankly discloses the idea of its author, and probably also that of a majority of his brethren, as to the real character of a slave marriage. According to Moore, it was discovered at Northampton, N. H., in 1868, by Mr. J. Wingate Thornton; and it was prepared and used by Rev. Samuel Phillips, of Andover, Mass., whose ministry there, beginning in 1710 and ending with his death in 1771, was a prolonged and eminently distinguished service of more than half of the eighteenth century." This "Form of a Negro-Marriage" is a decidedly safe and practical service from the master's point of view. The minister says:

"You S: do now in the Presence of God, and these Witnesses, Take R: to be your _Wife_; Promising that so far as shall be consistent with y^e Relation w^{ch} you now sustain, as a Servant, you will Perform y^e Part of an _Husband_ towards her; And in particular, you Promise, that you will _Love_ her: And that, as you shall have y^e Opport^{ty} & Ability, you will take a proper _Care_ of her in Sickness and Health, in Prosperity & Adversity: And that you will be True & _Faithfull_ to her, and will Cleave to her _only, so long_ as God, in his Provd^{ce}, shall continue your and her abode in Such Place (or Places) as that you can conveniently come together." Similar words are repeated to the woman; and when each in turn has sealed this unique troth-plight, the minister continues: "I then agreeable to your Request, and w^{th} y^e Consent of your Masters & Mistresses, do Declare, that you have Licence given you to be conversant and familiar together, as _Husband and Wife_, so long as God shall continue your Places of abode as aforesaid; and so long as you shall behave your-selves as it becometh Servants to doe: For you must, both of you, bear in mind, that you Remain Still as really and truly as ever, your Master's Property, and therefore it will be justly expected, both by God and Man, that you behave and conduct your-selves, as Obedient and faithfull Servants towards your respective Masters & Mistresses for the Time being."[703]

[Footnote 703: "And finally," continues the minister, "I exhort
& charge you to beware lest you give place to the Devil, so as
to take Occasion from the Licence now given you, to be lifted up
with _Pride_, and thereby fall under the Displeasure, not of Man
only, but of God also; for, it is written, that God resisteth the
Proud, but he giveth Grace to the humble.

"I shall now conclude w^{th} _Prayer_ for you, that you may
become good Christians, and that you may be enabled to conduct as
such; and in partic^r, that you may have Grace to behave suitably
towards each Other, as also dutifully towards your Masters &
Mistresses, not w^{th} Eye-Service, as Men-pleasers, but as
y^e serv^{ts} of Chr^t, doing y^e will of God from y^e heart."
Published by MOORE, _Slave Marriages in Mass._: in DAWSON'S
_Hist. Mag._, 2d series, V, 137.]

Through this ingenious device, it is clear, the permanence of the slave's nuptial bond, with all his connubial and family rights, was made absolutely dependent upon his owner's will.