Part 3 — CHAPTER XII OBLIGATORY CIVIL MARRIAGE IN THE NEW ENGLAND COLONIES

[Bibliographical Note XII.—For this chapter a large quantity of files and records of Massachusetts colonial and provincial courts has been examined. In the office of the Clerk of Courts for Middlesex county (Cambridge) have been used the Records of the County Court for Middlesex, 1649-86, 4 vols., MSS. folio, Vol. II missing; supplemented by the Files of the County Court for Middlesex, 1655-99; and followed by the Records of the Court of General Sessions of the Peace for Middlesex, 1692-1822, 9 vols., MSS. folio, the ninth volume containing also Records of the Court of Pleas and General Sessions of the Peace, October 1686, to March, 1688. In the office of the Clerk of the Supreme Judicial Court for the County of Suffolk (Boston) have likewise been examined the Records of the Court of General Sessions of the Peace, 1702-32, 4 vols., MSS. folio, with a fifth volume of fragments, 1738-80; the Minute Books of the Court of General Sessions of the Peace, January 3, 1743, to August 3, 1773, 5 vols., MSS. folio; the Records of the Superior Court of Judicature, Court of Assize and General Goal Delivery in the Province of Massachusetts Bay, 1692-1780, 33 vols., MSS. folio, Vol. II containing also the records of certain courts during the Andros period, 1686-87; and the Early Court Files of Suffolk, 1629-1800—being papers of colonial and provincial courts held in Suffolk county, of the Superior Court of Judicature held in the several counties, and of the Supreme Judicial Court prior to last century, with miscellaneous papers, the whole collection comprising several hundred volumes, of which only those for the period 1629-1730 have been covered by this investigation. Careful examination has also been made of the MSS. folio volume of Records of the County Court of Suffolk, October 1671, to April, 1680, in the possession of the Boston Athenæum.

Very important are the published Colonial Records of Plymouth (Boston, 1855-61); Massachusetts Bay (Boston, 1853-54); New Haven (Hartford, 1857-58); Connecticut (Hartford, 1850-87); Rhode Island (Providence, 1856 ff.); and the Provincial, Town, and State Papers of New Hampshire (Concord, 1867-83).

The necessary complement of the records is of course found in the various compilations of statutes. For Massachusetts it has seemed best to cite by preference Whitmore's fine facsimile edition of the Colonial Laws (Vol. I, 1660-72, Boston, 1887; Vol. II, 1672-86, Boston, 1889), which should be used in connection with his Bibliographical Sketch of the Laws of the Massachusetts Colony, 1630-86 (Boston, 1890); and Ames and Goodell's Acts and Resolves (5 vols., Boston, 1869-86), which with the three supplementary volumes (Boston, 1892-96), cover the period of the provincial charter and carry us beyond the Revolution. The following original digests have also been employed: The Book of the General Lawes and Libertyes of the Massachusetts Colony (Boston, 1660); The General Laws and Liberties (Boston, 1672)—these two earliest codes being those reprinted by Whitmore; Acts and Laws, 1692-1714 (Boston, 1714); Acts and Laws, 1692-1765 (Boston, 1769); Acts and Laws (Boston, 1759); and the collection entitled Charters and General Laws of the Colony and Province of Massachusetts Bay (Boston, 1814). The first digests of New Haven and Connecticut plantations are comprised in Trumbull's True Blue Laws (Hartford, 1876). There is also a reprint of the Code of 1650, to which is added extracts from Laws and Judicial Proceedings of New Haven Colony commonly called Blue Laws (Hartford, 1822); and a facsimile reprint of The Book of the General Laws of 1673 (Hartford, 1865). For the eighteenth century we have the Acts and Laws of his Majesties Colony of Connecticut in New England (New London, 1715); Acts and Laws of his Majesties English Colony of Connecticut (New London, 1750); Acts and Laws (New Haven, 1769); and the Acts and Laws (New London, 1784). For New Hampshire, the "Province Laws" published in Vol. VIII of the New Hampshire Historical Society Collections; the Acts and Laws passed by the General Court or Assembly, 1696-1725 (Boston, 1726); the Acts and Laws (Portsmouth, 1761); and the Acts and Laws, 1696-1771 (Portsmouth, 1771), have been cited. To follow the tangled thread of Rhode Island legislation on any subject is a perplexing task; but the development of the written marriage law may be traced with tolerable clearness in the published digests. See Staples's Proceedings of the First General Assembly ... and the Code adopted by that Assembly in 1647 (Providence, 1847); Rider's facsimile reprint of the code of 1705, entitled Laws and Acts of his Majesties Colony of Rhode Island, 1636-1705 (Providence, 1896); his facsimile reprint of the code of 1719, entitled The Charter and the Laws of his Majesties Colony of Rhode-Island in America (Providence, 1895); also the original Acts and Laws (Newport, 1730); with Rider's facsimile reprint, entitled Supplementary Pages to the Digest of 1730 (Providence, [1898]); the original folio editions of the Acts and Laws dated respectively 1745, 1752, 1767 (Newport); and Gregory's facsimile reprint of the compilation of 1772, entitled Acts and Laws ... passed since the Revision in June 1767 (Providence, 1893). The Plymouth codes are printed in Vol. XI of the Colonial Records of that colony; and they are given in convenient form in Brigham's Compact, with the Charter and Laws of New Plymouth (Boston, 1836).

Original material has also been gleaned from the Collections (Boston, 1806-97) and the Proceedings of the Massachusetts Historical Society (Boston, 1879 ff.); Bradford's History of Plymouth Plantation (Boston, 1856); Winthrop's History of New England, 1630-49 (Boston, 1853); Hutchinson's History of Massachusetts, 1628-1774 (Vol. I, Salem, 1795; Vol. II, Boston, 1795; Vol. III, London, 1828); Cotton Mather's Magnalia Christi Americana (Hartford, 1820); Increase Mather's Answer of Several Ministers (Boston, 1695), on marriage with wife's sister; The Andros Tracts (Boston, 1868-74); Young's Chronicles of the Pilgrims, 1602-25 (2d ed., Boston, 1844); Historical Collections of the Essex Institute (Salem, 1896); Lechford's Note-Book, 1638-71 (Cambridge, 1885), idem, Plain Dealing (Boston, 1867); reprinted also in 3 Mass. Hist. Soc. Collections, III; Dunton's Life and Errors (Westminster, 1818); his Letters from New-England (Prince Society, Boston, 1867); the "Town Records of Boston," 1634-1777; and the "Town Records of Dorchester," both in the Reports of the Boston Record Commission; "Town Records of Salem," 1634-59, in Vol. IX of Hist. Coll. Essex Inst.; especially Sewall's "Diary," in 5 Mass. Hist. Coll., V, VI, VII (Boston, 1878-80); and his "Letter-Book," in 6 Mass. Hist. Coll., I, II (Boston, 1886), both of which afford a wealth of illustration for almost every phase of wedding and other social customs.

Among recent writings relating to the general subject most important are Shirley, "Early Jurisprudence of New Hampshire," in Proceedings of the New Hamp. Hist. Society, 1876-84 (Concord, 1885); Earle, Customs and Fashions in Old New England (New York, 1894); Weeden, Economic and Social History of New England, 1620-1789 (Boston, 1891); Goodwin, Pilgrim Republic (Boston, 1888); Howe, Puritan Republic (Indianapolis, 1899); Arnold, History of Rhode Island (New York, 1874); Friedberg, Eheschliessung (Leipzig, 1865); Cook, "Marriage Celebration in the Colonies," in Atlantic Monthly, LXI (Boston, 1888); Bishop, Marriage, Divorce, and Separation (Chicago, 1891); Lodge, Short History of the English Colonies (New York, 1882); Trumbull, History of Connecticut (New Haven, 1818); Hollister, History of Connecticut (Hartford, 1857); Atwater, History of the Colony of New Haven (New Haven, 1881); Freeman, History of Cape Cod (Boston, 1869); Bailey, Historical Sketches of Andover (Boston, 1880); Bliss, Side Glimpses from the Colonial Meeting-House (Boston, 1896); idem, Colonial Times on Buzzard's Bay (Boston, 1888); Brooks, The Olden Time Series: The Days of the Spinning-Wheel in New England (Boston, 1886); articles by Scudder, Whitmore, Edes, McKenzie, Morse, and Goddard, in Memorial History of Boston (Boston, 1882-83); and Newhall, Ye Great and General Court (Lynn, 1897).

Illustrative material has likewise been gathered from a large number of writers, among whom are Palfrey, History of New England (Boston, 1888-90); Carlier, Le mariage aux États-Unis (Paris, 1860); Oliver, Puritan Commonwealth (Boston, 1856); Doyle, English Colonies (New York, 1882-87); Ellis, Puritan Age (Boston, 1888); Dexter, Congregationalism (New York, 1880); Bacon, Genesis of the New England Churches (New York, 1874); Belknap, History of New Hampshire (Dover, 1812); Green, Short History of Rhode Island (Providence, 1877); Sanford, History of Connecticut (Hartford, 1888); Hawthorne, Grandfather's Chair (Boston, 1893); Campbell, The Puritan in Holland, England, and America (New York, 1892); Hildreth, History of the United States (New York, 1882); Snow, History of Boston (Boston, 1824); Shurtleff, Topographical and Historical Description of Boston (Boston, 1872); Gilman, The Story of Boston (New York, 1889); Drake (S. G.), History and Antiquities of Boston (Boston, 1854); Drake (S. A.), Old Landmarks of Boston (Boston, 1889); Drake (S. A.), The Making of New England (New York, 1887); Prime, Along New England Roads (New York, 1892); Read, in the Collections of the Old Colony Historical Society, No. 2 (Taunton, 1880); and Brigham, in Proceedings of the Mass. Hist. Society, IV.

Among the works drawn upon in the treatment of special topics are Stiles's Bundling (Albany, 1871); supplemented by his History of Windsor (New York, 1859); and the very suggestive paper of Charles Francis Adams, Some Phases of Sexual Morality and Church Discipline in Colonial New England, reprinted from the Mass. Hist. Soc. Proceedings, June, 1891 (Cambridge, 1891); while there is an interesting passage relating to the same custom in Burnaby's Travels through the Middle Settlements in North America, 1759-60 (London, 1798); as also a characteristic reference in Irving's Knickerbocker History of New York (Philadelphia, 1871). For the first time the history of the stigma of the "scarlet letter" has been treated from the sources in Davis's careful monograph, The Law of Adultery and Ignominious Punishments (Worcester, 1895). In connection with the influence of the Levitical law on the New England conception of marriage and the family, Amram's The Jewish Law of Divorce (Philadelphia, 1896), and Mielziner's The Jewish Law of Marriage and Divorce (Cincinnati, 1884) are important. Of most service for the legal character of New England slave marriages are Moore's Notes on the History of Slavery in Massachusetts (New York, 1866); his "Slave Marriages in Massachusetts," in the Historical Magazine, XV (1869), containing a significant ritual used by Rev. Samuel Phillips, minister at Andover, 1710-71; and Steiner's "History of Slavery in Connecticut," in Johns Hopkins University Studies, XI (Baltimore, 1893). The originality of the system of civil registration created by the New England settlers is appreciated by Kuczynski, "The Registration Laws in the Colonies of Massachusetts Bay and New Plymouth," in Publications of the Am. Statistical Ass., VII, 65-73 (Boston, 1901). See also Bibliographical Note XV.]

I. THE MAGISTRATE SUPERSEDES THE PRIEST AT THE NUPTIALS

The continuity of English law and custom in the New England colonies is not more striking than the innovation. First of all it would indeed be strange if the planting of new states in the wilderness should not have afforded to thoughtful men a rare opportunity for freeing themselves from the trammels of antiquated methods and traditions which the "inertia of vested interests" might yet for ages sustain in the native land. In some instances the influences of a new and primitive environment might cause an unconscious return to the practices of earlier days. Religious and ecclesiastical ideas must necessarily play the leading part. In fact, the zeal with which the Pioneers of Plymouth and Massachusetts Bay proscribed the ceremonies and usages of the Roman and Anglican churches has had much to do with the character of civil institutions in the United States. On the part even of the Puritan there was thus sometimes a strong reaction in favor of the temporal power in matters hitherto regarded as exclusively pertaining to the spiritual jurisdiction. The sway of the so-called theocracy in Massachusetts and New Haven tended, sometimes inadvertently, to foster the growth of the American idea of complete separation of church and state. Thereby the forces of local self-government were quickened. Thus for a time the town-meeting and the congregation were practically one and the same; but authority was exercised in the name of the lay township and not in that of the ecclesiastical parish. So also the probate of wills, the administration of estates, the exercise of chancery jurisdiction,[357] and the supervision of primary and secondary education[358] were taken out of the hands of the church and vested mainly in the local community. The process of secularization in legal functions proceeded with rapid strides.

In no respect was the change more remarkable than in the administration of matrimonial law and in the conception of the marriage contract. Here, as in so many other instances, our ancestors anticipated the thought and the legislation of the mother-country by more than two hundred years.[359] It will be remembered that in the beginning of the seventeenth century—and ever since the thirteenth—English marriage law was in an anomalous and most chaotic state. The Reformation in England had brought no real change in the canonical conception of the form of wedlock, though its sacramental nature was denied. On the one hand was the church at the demand of the state trying to enforce ecclesiastical rites and to secure publicity by requirement of banns, parental consent, and registration; on the other was the "irregular" or common-law marriage, entered into without any of these safeguards, by mere private agreement; and the validity of the latter was not squarely impeached by the church, though the disregard of the priestly office was punished by spiritual censure. All this is changed in the colonies. In place of confusion and complexity is found simplicity. In New England particularly civil rites, civil registration, and uniform theory of marriage tend at once to prevent the manifold evils growing out of a lax or uncertain law. The conception of wedlock which existed there from the beginning was identical with that which later found expression in the writings of Milton and the legislation of Cromwell. Marriage was declared to be, not a sacrament, but a civil contract in which the intervention of a priest was unnecessary and out of place.

Governor Winthrop, in commenting upon "a great marriage to be solemnized at Boston," in 1647, expresses the sentiment prevailing during the first three-quarters of a century after the settlement. The bridegroom was "of Hingham, Mr. Hubbard's[360] church," and the latter "was procured to preach and came to Boston to that end. But the magistrates, hearing of it, sent to him to forbear. The reasons were, 1. for that his spirit had been discovered to be averse to our ecclesiastical and civil government, and he was a bold man, and would speak his mind. 2. we were not willing to bring in the English custom of ministers performing the solemnity of marriage, which sermons at such times might induce, but if any ministers were present and would bestow a word of exhortation, etc., it was permitted."[361] The last remark reminds us of the benediction of the early Christian priest, who, like the Puritan, discriminated between the religious act and the marriage. Sermons, however, were originally proscribed at the nuptials, though they were permitted at the betrothal.[362]

The early colonial laws, generally, required that all marriages should be celebrated before a justice of the peace or other magistrate, sometimes under penalty of nullity for those solemnized in any other way.[363] Where no statutory provision to the contrary existed the common-law marriage by private consent was valid.[364] The question now arises as to the causes which determined the establishment of civil marriage in the New England colonies. Was it set up in imitation of the practice in Holland? Did it come as a natural result of the general tendency of Protestant, and especially of Puritan, thought? Or was it perhaps the product of both influences combined? Already in the middle of the eighteenth century colonial historians were at a loss to account for it. Thus Governor Hutchinson makes a difficulty of understanding why the lay celebration was introduced. "Their laws concerning marriage and divorce," he says, "are somewhat singular. I suppose there had been no instance of a marriage, lawfully celebrated, by a layman in England, when they left it. I believe there was no instance of marriage by a clergyman after they arrived, during their charter; but it was always done by a magistrate, or by persons specially appointed for that purpose.... It is difficult to assign a reason for so sudden a change, especially as there was no established form of the marriage covenant."[365]

On the other hand, Governor Bradford believed that the civil celebration was introduced by the Pilgrims directly from Holland. The first marriage in Plymouth Plantation—that of Edward Winslow and Susannah White[366]—occurred on May 12 (22), 1621. This, he declares "according to y^e laudable custome of y^e Low-Cuntries, in which they had lived, was thought most requisite to be performed by the magistrate, as being a civill thing, upon which many questions aboute inheritances doo depende, with other things most proper to their cognizans, and most consonante to y^e scriptures, Ruth 4, and no wher found in y^e gospell to be layed on y^e ministers as a part of their office. 'This decree or law about marriage was published by y^e State of y^e Low-Cuntries An^o: 1590. That those of any religion, after lawfull and open publication, coming before y^e magistrats in y^e Town or Stat-house, were to be orderly (by them) married one to another.' Petits Hist. fol: 1029. And this practiss hath continued amongst, not only them, but hath been followed by all y^e famous churches of Christ in these parts to this time,—An^o: 1646."[367]

The testimony of Bradford must, indeed, command our earnest attention, though in the matter of dates he is apparently misled by his authority. For, as already seen,[368] two of the Netherland provinces had established civil marriage as early as 1580; while it was not extended to them all until seventy-six years later. Nor is the mere fact that, seemingly without discussion, civil marriage was adopted by Massachusetts and her daughter-colonies, as well as by Plymouth, necessarily a fatal objection to this theory of origin, though it has a bearing upon the question which must be carefully considered. For the New England Pilgrim and Puritan alike were simply doing what their brethren did a few years after when they found their opportunity in the days of the Commonwealth. If America owes the institution of civil marriage to Holland, it is so not merely because of the residence of the Scrooby congregation at Leyden, but because of the profound influence which Dutch Puritanism exerted upon the Puritanism of England for a hundred years after the Spanish and Tudor persecutions began. It can scarcely be doubted that in various ways Dutch ideas made themselves felt in the remarkable legislative and constitutional experimentation of Cromwell's reign.[369] Moreover, the argument is strengthened by the fact that the Fathers of the English Reformation, unlike Luther and his followers, do not seem to have raised a single voice in favor of the lay ceremony.

Nevertheless, though Dutch custom undoubtedly furnished a direct precedent which should not be ignored, it seems highly probable that without the influence of Holland the early establishment of civil marriage in New England was inevitable. It was required by the spirit of Protestantism. Under favorable conditions, which New England did and old England did not afford, it was sure to arise as a consequence of rejecting the sacramental theory of wedlock.[370] There is another factor of the problem which must be reckoned with. The New England Puritans were steeped to the marrow in Hebraism; and, as we shall presently see, the growth of a sentiment in favor of lay marriage was fostered by the example of the Jewish law.[371] It is vain to apologize for them on the ground that under the influence of the Mosaic code they really regarded the officiating magistrate as the "minister of God." In his "judicial" capacity the magistrate may, indeed, have been looked upon as a divine agent.[372] That is the well-known casuistry by which Luther and the early Protestants persuaded themselves that absolute divorce through the temporal court is not forbidden by the scriptural precepts.[373] But it is a grave error to suppose that the seventeenth-century Puritan had this in mind when he rejected the priestly ceremony. Doubtless he did not forget that marriage from its social and ethical sides is something higher than a mere civil contract. Yet for more than half a century after the settlement so intent was he in emphasizing its secular character that in the statutes the words "holy" or "sacred" as applied to it very seldom, if ever, appear. "Honorable" or some similar epithet is the strongest term usually employed. Even the publication of banns, as will hereafter be seen, was at first ordinarily required to be made, not on the sabbath, but at public "lecture" or on training day.[374]

The difference between the colonists and their Anglican adversaries in this regard is brought out in an interesting way through the experience of Edward Winslow, whose second marriage has just been mentioned. In 1634 he was sent on public business to England, where, partly in the interest of Merry-Mount Morton, Mason, and Sir Ferdinando Gorges, he was accused by Archbishop Laud—whose scheme for setting up a governor-general and a bishop in the colonies seemed likely to be frustrated by Winslow's petition relative to the encroachments of the French and Dutch—of "teaching in y^e church publickly," and of performing the marriage ceremony. The latter offense he had committed in his capacity as magistrate. In reply to the charge he excused himself on the ground that the colonists were "necessitated so to doe, having for a long time togeather at first no minister; besids, it was no new-thing, for he had been so maried him selfe in Holland, by y^e magistrats in their statthouse."[375] But "with more courage and candor than caution, he proceeded to defend the practice on its merits, declaring that he knew no scriptural ground for confining this office to the clergy; while from the relations which marriage often had to property and to business obligations, there seemed good reason for making it a civil contract, as in Holland."[376] As a consequence Winslow was imprisoned in the Fleet for seventeen weeks.[377]

It appears certain, then, that in the two older colonies the lay ceremony was invariably required from the beginning.[378] But in neither case does there seem to have been any direct legislation on the subject for many years. Indeed, were there no prudential reason,[379] a positive legal sanction may well have been deemed superfluous while public opinion was so sensitive and so united. The first extant order of the general court of Plymouth requiring celebration before a civil officer was passed, it is said,[380] in 1671. But in this jurisdiction, as in Massachusetts, the assistants or "magistrates" had always exercised this function; and it had long been the custom for the general court to appoint commissioners in the particular towns to join persons in marriage.[381] The earliest statute of Massachusetts relating to the celebration is the act of 1646, providing "that no person whatsoever in this Jurisdiction, shall joyne any persons together in Marriage, but the Magistrate, or such other as the General Court, or Court of Assistants shal Authorize in such place, where no Magistrate is neer."[382] In practice the last provision of this act was carried out in various ways. Thus, for example, any citizen might be appointed for a particular town during the pleasure of the court.[383] Or, in absence of the regular officer, a commission might be issued to perform the ceremony in specified cases; as when Henry Chickering was given authority to marry "two or three couples, legally published at Dedham."[384] In one instance we find a curious optional commission in which are inserted the names of three persons, either one of whom is empowered to join "M^r. John Apleton and M^rs. Priscilla Glover" in marriage.[385] But, as a rule, one or more of the three commissioners, chosen for the ending of small causes in towns where no assistant resided, was authorized by the county court to perform this duty.[386]

The law and custom of the other New England colonies were essentially the same as those already discussed. Everywhere marriage was regarded as a civil contract and the celebration was performed by a civil magistrate. In New Hampshire members of the council could act.[387] In Rhode Island, besides the magistrate, "none but Quakers[388] and clergymen of the Church of England could perform the ceremony," and these were given such authority by special grant of the king.[389] The law of New Haven, 1648, is peculiar in requiring not only that the marriage be performed before a magistrate or someone expressly allowed by the general court; but when the persons to be united are "able to go forth," that it be solemnized in some public place,[390] under penalty of five pounds for "every such miscarriage."[391] In Connecticut, likewise, compulsory civil marriage was adopted.[392]

During the "usurpation" period, beginning in 1686, the laws requiring civil marriage were set aside. Joseph Dudley, who entered upon his duties as president of New England in May of that year, published "an order of council, authorizing and empowering ministers and justices of the peace, the order says, 'to consummate marriages,' after three several times publication or licence from the president or deputy."[393] With this compromise Governor Andros was not satisfied; and it was his intention to allow marriages to be performed only by the Episcopal clergy. To do this at once, however, was impracticable. "Magistrates," says Hutchinson, "still continued to give people in matrimony. Other provision could not immediately be made." For at the time there was but one Episcopal clergyman in the country; and "Sir Edmund considered the Congregational ministers as mere laymen. Randolph wrote to the bishop of London, 'I press for able and sober ministers, and we will contribute largely to their maintenance; but one thing will mainly help, when no marriages shall hereafter be allowed lawful but such as are made by the ministers of the church of England."[394] Another restraint upon marriage was accounted a still more serious hardship. "None were allowed to marry except they entered into bonds with sureties to the governor, to be forfeited in case there should afterwards appear to have been any lawful impediment."[395] This requirement in many cases amounted to a practical prohibition.[396]

The "first marriage at Boston with prayer-book and ring" occurred on May 18/28, 1686, just four days after Dudley received his commission as president of New England.[397] But there is evidence that zealous opposition to the religious ceremony existed up to the very beginning of this period. Thus, according to Savage, "Lawrence Vanderbosk, a Huguenot clergyman, undertook to solemnize marriages in Boston in 1685." But he was brought before a tribunal for this enormity and promised "to do no more such things," yet in September, says Judge Sewall, "he joined together Giles Sylvester and Hannah, widow of Benjamin Gillam. The reverend offender went to New York the same week."[398]

Gradually, however, the stern Puritanism of the colonists became softened; the prejudice against ecclesiastical rites rapidly subsided; marriages were solemnized even by the Congregational clergy;[399] and soon after the struggle for the charters, laws were enacted allowing the ministers of all denominations to perform the ceremony. Yet, in Rhode Island, it was not until 1733 that the "settled and ordained ministers and elders of every society and denomination of Christians" were permitted to join persons in marriage, the legal fee therefor being fixed at three shillings.[400] By an act of October, 1694, the same privilege was conferred upon the "ordayned ministers of the severall plantations" of Connecticut—in order, says the general court, to satisfy "such as are conscienciously desirous to be" so joined.[401] For Massachusetts a similar statute was passed in 1692, authorizing all "settled ministers" to solemnize marriages, but only in their "respective towns;" while, on the other hand, the authority of the justice of the peace extended throughout the county.[402] The careful limitation of the respective districts of the minister and magistrate was doubtless intended to act as a check upon clandestine unions, as by the more stringent act of 1695. By this statute none may join any persons in marriage who are not inhabitants or residents of the county or town; nor without a proper certificate of due publication and parental consent from the clerks of the towns where the parties respectively dwell. For celebrating a marriage contrary to the act the minister or justice suffers a penalty of fifty pounds and is forever disabled to join persons in marriage, with the added liability of prosecution from the parent or guardian.[403] By several subsequent acts the powers of the clergy are still further enlarged. Thus in 1763 they are empowered to solemnize marriages in "parishes" and "districts" composed of "parts of towns" in "as ample a manner" as in the several towns where they dwell.[404] In 1773 they are allowed to perform the ceremony, not merely within their official districts, but for any whose "ministerial taxes" they are entitled to receive; or if for any cause a parish is without a minister, or if the incumbent himself desires to get married, then the next minister of the same denomination in the town may lawfully act.[405]

So it appears that the proclamation of President Dudley in 1686 marks an epoch of some importance in institutional history. For by it the principle of American law, generally recognized at present by the statutes of the various states, and imitated by English legislation, was first recognized. Almost everywhere in this country the lay and the religious celebrations are equally valid; and it is not without interest to note that long before the Revolution the priest had once more practically superseded the magistrate at the nuptials.[406] It was already regarded as good social "form" to have the nuptials solemnized by religious rites.

No prescribed marriage ritual existed. The intention of the persons entering into the covenant might be expressed in any fitting words.[407] In the early period weddings were usually celebrated quietly in the home of the bride. But it must not be understood that all festivity was for long rigorously proscribed. Soon feasting was added to prayer and the singing of psalms.[408] A sumptuary law of 1637, forbidding the sale of buns and cakes in the markets, victualling houses, and elsewhere, carefully makes an exception of "such cakes as shalbee made for any buriall, or marriage, or such like speciall occation."[409] The ancient practice of our teutonic ancestors of "bedding" the newly married pair was maintained in some quarters. Judge Sewall had that experience when he took his second wife.[410] "In Marblehead bridesmaids and groomsmen put the wedded couple to bed;" and we are told that "along the New Hampshire and upper Massachusetts coast, the groom was led to the bridal chamber clad in a brocaded night-gown. This may have occasionally taken place among the gentry," comments Mrs. Earle, "but I fancy brocaded night-gowns were not common wear among New England country folk."[411] Another "survival" was the sham "bride-stealing" which was long kept up in the Connecticut valley. "The last bride stolen in Hadley was Mrs. Job Marsh, in the year 1783;" and to this day "in certain localities in Rhode Island, the young men of the neighborhood invade the bridal chamber and pull the bride downstairs, and even out-of-doors, thus forcing the husband to follow to her rescue. If the room or house-door be locked against this invasion, the rough visitors break the lock."[412] Furthermore, numerous instances of "smock marriages" in New England are recorded. Here the English superstition elsewhere mentioned[413] took the special form that "if the bride were married 'in her shift on the king's highway,' a creditor could follow her person no farther in pursuit of his debt."[414]

In the eighteenth century weddings were accompanied by much revelry and extravagance. Gloves, rings, and scarves, as at funerals, were given away in such profusion as to call for legislation to check the abuse.[415] Unstinted feasting and drinking were the order of the day. "Sack-posset" appears to have been the favorite wedding beverage.[416] "All the friends were entertained at the bride's home with a collation or supper, and afterward a dance; while in the country they were the most important social events. The banns were proclaimed in church, and all the neighbors were invited from the pulpit to attend the ceremony. On the day of the wedding muskets were fired, a procession was formed, and marched to the bride's house, where the marriage took place; and then came a dinner, a dance, and great merry-making. Usually these wedding feasts lasted through the day and evening, but they were sometimes kept up for two or three days. On one occasion at New London there was a great wedding dance on the day after the marriage, when ninety-two ladies and gentlemen assembled and proceeded to dance ninety-two jigs, fifty-two contra-dances, forty-five minuets, and seventeen hornpipes. This was probably an extreme case; but all over New England weddings were great occasions, and were celebrated with much pomp and rejoicing."[417]

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

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

II. BANNS, CONSENT, AND REGISTRATION

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

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

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

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

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

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

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

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

III. COURTSHIP, PROPOSALS, AND GOVERNMENT OF SINGLE PERSONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. PRE-CONTRACTS, BUNDLING, AND SEXUAL IMMORALITY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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]

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 only3marriedcouples

£5 (both)1""

£3 "1""