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Xerox University Microfilms 300 North Zeeb Road Ann Arbor, Michigan 48106 WELLS, Michael Vernon, 1947- SEX AND THE LAW IN COLONIAL NEW ENGLAND. The Ohio State University, Ph.D., 1974 History, general

Xerox University Microfilms, Ann Arbor, Michigan 48io6

© Copyright by Michael Vernon Wells 1974

THIS DISSERTATION HAS BEEN MICROFILMED EXACTLY AS RECEIVED. SEX AND THE LAW IN COLONIAL NEW ENGLAND

DISSERTATION

Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University

By Michael Vernon Wells, B.A., M.A.

The Ohio State University 1974

Reading Committee: Approved By Bradley Chapin Paul Bowers Clayton Roberts I Ad^ser 7 \ Department) of Hi§jory Acknowledgments

I wish to thank Professor Bradley Chapin of the Department of History for his kind assistance, support, and guidance not only concerning this dissertation but also throughout my career as a graduate student. He has been more than an advisor; he has also been a friend. I would also like to thank Professors Paul Bowers and Clayton Roberts. They read the manuscript and offered valued criticism. This work is of course dedicated to my wife, Catherine. She deserves much more, but this small piece of scholarship is all that I can publically give to her. VITÜ

üpril 1 6, 1947 .... Born— Dayton, Ohio

1 9 6 9...... B.û, cum laude, Wright State University, Dayton, Ohio

1969-1971 ...... University Fellow and Teaching Associate, Department of History, The Ohio State University, Columbus, Ohio

1971 ...... M.A., The Ohio State University, Columbus, Ohio

1971-1974 ...... Teaching Associate and Dissertation Year Fellow, Department of History, The Ohio State University, Columbus, Ohio

FIELDS OF STUDY

Major Field; American History Studies in American Colonial History. Professor Bradley Chapin Studies in Jeffersonian and Jacksonian History. Professor Paul Bowers Studies in Tudor-Stuart History, Professor Clayton Roberts Stud.ies in Ancient Roman History. Professor Cyrus St. Clair Table of Contents Page Acknowledgments ...... t ...... ii V i t a ...... ill Introduction...... 1

Chapter I. The English Background ...... 7 II. The Puritan Background: Marriage, Divorce; Sex; Courtship...... 21 III. The Influence of Religion, the Church, and the Bible ...... 52 IV. Puritans and the Secular Causes of I mmorality ...... 90 V. Crimes of Adultery and Pre-Marital Sex . . . 104 VI. Rape and Child Molestations ...... 136 VII. Crimes of Sodomy, Buggery, and Incest . . . l6l VIII. Prostitution— Public Decency— Slanderous Statements ...... l84

Bibliography ...... 199 Introduction

When Nathaniel Hawthorne penned The Scarlet Letter in the early nineteenth-century, he mirrored what has become a long American fascination with the moral code and moral lapses of this country's Puritan forefathers, Hawthorne's view presents the Puritans as stern and forbidding moralists who were able to induce such feelings of guilt in a wayward minister that a red "A" mysteriously appeared on his breast similar to the "A" authorities sewed on the garments of the married woman who was his lover. The facts Hawthorne presented in his novel reflect the actual conditions of crime and punishment in early New England, and even if the colonists were never able to hound a man as they did in The Scarlet Letter, their moral code and ideas on sex outside the institution of marriage, whether distorted by subsequent generations or not, have influenced at least the domestic side of American history, Hawthorne himself wrote The Scarlet Letter and The House of the Seven Gables in attempts to exorcise the Puritan devils from his New England soul. There is no doubt that the Puritans took a harder line than their English brethren when it came to the breakdown of what was considered the proper moral order. One of the

1 reasons for the Puritan immigration into New England was the belief that England was a modern Sodom and Gomorrah upon which God would vent his wrath. The collapse of English political stability, the attempts of the Stuart dynasty to maintain a position from which kings could really rule, and the actions and practices of the Anglican Church seemed to the Puritans proof of the great calamity which was sure to rock England, Yet, in the New World, the Puritans were technically if not operationally still under English law and had to tread carefully lest their legislation so clash with that of the mother country as to bring about a revocation of their colonial charter. For this reason, the Massachusetts Bay coloniest attempted to use discretionary justice for a number of years. The Puritans were also troubled by Biblical dictates concerning moral issues and the punishments for moral lapses. They tried hard to follow Biblical examples in building their New Jerusalem, but sometimes they found the Bible too severe and other times too lenient in dealing with moral transgressions. This type of problem usually called for a consultation of elders in an attempt to discover the divine will. It was troublesome when the Bible would not fit the realities of a sex crime in colonial New England.

Sex in History Until recently historians have seldom closely exsunined the subject of sex, and those who have written about the 3 subject have been American colonial historians. Here, the limited population and the availability of good records have been important factors.^ Presumably, colonial historians have prurient interests neither more nor less developed than other academics, and sex has appeared and been studied in an incidental fashion in other periods of American history. As John Burnham points out, "Morton's Maypole at Merrymount, miscegenation, the Eaton affair, Maria Monk, the Mormons, Lincoln's jokes, bachelor Cleveland's dependent child, and much more.", have been topics for historical discussion.^ Still, the topic has been usually hidden or referred to in a narrow way. Mostly it was "intertwined" with other historical studies.^ As Burnham analyzes the situation: . . . although American history has been kept relatively chaste, many of its practitioners have discussed sex incidentally. What is lacking is systematic work to parallel existing research on the family, Ditzion's work on attitudes, and such surveys as Nelson M. Blake's book on divorce in the United States. Americans have, for example, not even the stodgiest general history of prostitution in the United States, although a number of works written years ago cover that phenomenon in Europe, Indeed, by neglecting such areas historians have permitted, perhaps compelled, other kinds of scholars to write history.^ Burnham raises some interesting points concerning the role of sex in biography, the history of various institutions, and in general histories of American life.^ One may wonder, for example, what could be demonstrated if Daniel Boorstin chose to highlight sex in some form in his 4 general histories of America rather than lawyers, ice merchants, or department store magnates. However, Burnham asks for types of analysis which historians are probably not yet prepared to undertake. His suggestions and even rhetoric sound similar to those issued Ij Robert Beckhoffer in his book on history and social analysis « Historians need not be interested in sex— whatever it is— because it is arresting, fun, and absorbing in and of itself. They need to be interested in it only because it is important, and they need to say why it is important. To this end they ought to be introducing distinctions and categories that further historical analysis. Some historians of other cultures are already using distinctions such as that between expressive and instrumental sexuality or between compulsive and impulsive behavior. We need more history based on this type and level of analysis. 6 Burnham is correct in pointing out the importance of modern psychology to the study of sex and the use to which this can be put by historians.^ He makes useful sexual distinctions : sex as biology, sex in a social or institutional context, sex as part of human psychology.” Even if historians are not prepared to take on the study of sexual activity as Burnham wishes, his ideas are Important in that they serve notice that the historian is beginning to take note of sex as an important subject for his particular type of academic study. Although this thesis does not intend to delve into the sexual psychology of the early New England colonists, it hopes to lend some respectability to the study of sex in history. It does Intend to explore the English background concerning crimes of a sexual nature and the attempts of the early New England colonists to deal with these crimes. These activities were obviously not regarded lightly in early New England, and the ministers, politicians, and judges of the time used every weapon they could to halt what was regarded as a creeping immorality which would undermine their new civilization. Notes: Introduction

^John C. Burnham, "American Historians and the Subject of Sex," Societas. II (Autumn, 1972), 308,

-^Ibid.. 311.

^Ibid., 312-13.

^Ibid.. 31^. Chapter Ones The English Background

In Tudor-8tuart England the ecclesiastical courts had jurisdiction in crimes of a sexual nature. Usually the archdeacon's court, the lowest in the church hierarchy, handled these cases. These ecclesiastical courts were quite concerned with the moral lives of church members; the extracts from the Act Books of six church courts between the years 1 ^75 and l64o reveal that adultery, incontinency, and incest were among the cases considered,^ Later in Mew England, although they had no legal jurisdiction, the churches and congregations judged members who strayed from the straight and narrow. The procedures used in the ecclesiastical courts, "were well calculated to produce evidence of the commission of such offences," The judge could act as an inquisitor. He would be the accuser and use personal knowledge or common gossip or stories against the accused. Other court offi­ cers, the apparitors, usually supplied information and at times found abuse of their powers not beneath them, A second procedure involved the accusation of one individual against another. A third procedure used denunciation. The denouncer was not considered an accuser and therefore the accused or one denounced did not have the law's protections

7 be a secret proceeding, and the accused would not have the privilege of facing his accuser. By the sixteenth century, ecclesiastical courts were experiencing some criticisms about their handling of sex crimes. Because of these criticisms, Parliament passed new statutes creating new felonies, "to penalize certain forms of immorality, which the weakness of the ecclesias­ tical courts made it expedient to hand over to the common l a w . I n the area of felonies, the common law evolved enough to be able to supplement what Holdworth called, "the somewhat bare outlines of the medieval common l aw.In

1 5 3 3-3^1 sodomy was first made a felony and although repealed in 15^7» this act was reinstituted in 1^48. After another repeal in 1553i the act was again re-enacted in

1 5 6 2-6 3. An act in the year 1575-76 made it a felony with­ out benefit of clergy to rape a girl under ten years old.

The year 1603 saw the passage of a statute making bigamy a felony provided the husband and wife had been separated not longer them seven years.^ Still, the church courts were kept busy. In a space of two years, 1638-4-0, the Archdeacon's Court in London held thirty sittings with 3500 causes entered. In this period, I8OO people came before the court although many were tried (possibly 3/4) for breaking Sabbath or Saint's Day. In 164-1, Parliament abolished the ecclesiastical courts' jurisdiction over criminal offenses. The commons 9 were not willing to accept church jurisdiction and would not tolerate the snooping, "A system which enabled ecclesiastical officials to enquire into the most private affairs of life upon any information was already out of date."^ Within twenty years this jurisdiction was restored but the coming of the Restoration saw it curtailed and altered as ideas on moral government changed. With this change, the state began to interfere more in the domain of the ecclesiastical courts. In 1553 unnatural offenses, in 15^1 witchcraft, and in l603 bigamy became felonies.^ There were some crimes such as rape and abduction which the English thought required separate statutes and which were not under the jurisdiction of the ecclesiastical courts. In discussing abduction, Blackstone uses the terms forcible abduction and stealing an heiress. Statute 3 Hen. VII c. 2 made it a felony to, "for lucre take any woman, being maid, wife, or widow, and having substance either in goods or lands, or being heir-apparent to her ancestors contrary to her will and afterwards she be married to such misdoer, or by his consent to another or defiled . . . . Statute 39 Eliz. c. 9 took the benefit of clergy from those considered accessories before the fact.® In a similar vein, the statute 4 & 5 Ph. & Mar. c. 8, enacted: . . . that if any person, above the age of fourteen, unlawf ully should convey or take away any woman child unmarried ^hich was held to extend to bastards as well as to legitimate children/, within the age of sixteen years, from the possession and against the will of the father, mother, guardians, or governors, he should be imprisoned two years, or 10 fined at lûhe discretion of the justices; and if he deflowered such maid or woman child, or, without the consent of parents, contracted matri­ mony with her, he should be imprisoned five years, or fined at the discretion of the justices, and she should forfeit all her lands to her next of kin during the life of her said husband.9 Blackstone discusses the crime of "rape, raptus mulerium, or the carnal knowledge of a woman forcibly and against her will." He notes that Jewish law called for death if the woman was engaged and a heavy fine if she was not, (Curiously, he does not mention married women; probably it was understood that the offence was capital, or that married and engaged were the same state in so far as this was concerned.) Also, the unengaged woman was to become the wife of the rapist and the usual divorce provided by Mosaic law was not allowed. Both the woman and her rap i s t/h us band were legally bound for life ; this prospect cannot have been pleasing to at least one of the parties. The Roman civil law punished rape with execution and confiscation of property. According to Blackstone, this crime included; . . . The offence of forcible abduction, or taking away a woman from her friends, of which we last spoke; and also the present offence of forcibly dishonoring them; either of which, without the other, is in that law sufficient to constitute a capital crime. Also, the stealing away a woman from her parents or guardians and debauching her, is equally penal by the Emperor's edict, whether she consent or is forced; *sive volentibus, sive. nolentibus mulieribus. tale facinus fuerit perpétraturn.'1 0 *

*Whether the women are consenting or not consenting, a great crime shall have been perpetrated. 11 The Romans, according to Blackstone, supposed a woman, "never to go astray, without the seduction and arts of the other sex; and therefore, by restraining and making so highly penal the solicitations of the men, they meant to secure effectually the honour of the women.In opposition to this, Blackstone notes of English law, "our English law does not entertain quite such sublime Ideas of the honour of either sex, as to lay the blame of a mutual fault upon one of the transgressors only; and, therefore, makes It a necessary Ingredient In the crime of rape that It must be against the woman's will. Although Saxon laws (especially under King Athelstan) punished rape with death, this was later thought too severe and was modified by William the Conqueror to the dubious leniency of castration and the loss of eyes. This punish­ ment continued until the reign of Henry the Third. There was concern about "malicious accusations" and the woman had to report the crime Immediately after It occurred. She was to go to the next town and report her attack to a credible person; then she was to tell the high constable, the coroners, and the sheriff. At the time, these require­ ments coincided with those of other nations Including Scotland and Arragon. Later, the First Statute of Westmin­ ster, c, 13 extended the time for reporting the attack to forty days. If the woman agreed to marry her assailant, he would not be punished.Of the punishments for rape which modified the harshness of William's laws, Blackstone states» 12 In the 3 Edw, I., by the statute Westm. I, c. 13, the punishment of rape was much mitigated; the offence itself of ravishing a damsel within age (that is twelve years old) either with her consent or without, or of any other woman against her will, being reduced to a tresspass; if not prose­ cuted by appeal within forty days, and subjecting the offender only to two years* imprisonment, and a fine at the ting's will. But this lenity being productive of the most terrible consequences, it was in ten years afterwards, 13 Edw, 1, found necessary to mate the offence of forcible rape felony by statute Westm, 2, c, 34, And by statute 18 Eliz, c. 7, it was made felony without benefit of clergy; as was also the abominable wictedness of carnally knowing and abusing any woman child under the age of ten years ; in which case the consent or nonconsent is immaterial, as by reason of her tender years she is incapable of judgment and discretion,!^ It is interesting to see Blackstone equate the leniency of a law with an increase in the crime the law was to punish, Unfortunately, he gives no figures and this might be impressionistic evidence or a statement culled from an earlier historian, Blackstone points out that as far as the violation of a girl under twelve years was concerned, Mathew Hale's opinion was that either with or without consent it was considered rape and felony before and after the statute of Queen Elizabeth, Confusion arose because the law was generally used only to protect girls under ten even though as Blackstone puts it. "it seems that damsels between ten and twelve were still under the protection of the statute Westm, I, the law with respect to their seduction not having been altered by either of the subsequent statutes , , , This confusing state was not cleared up until more modern 13 legislation passed. In the early nineteenth century rape continued as a capital crime (statute 9 Geo. IV, c.

311 s. l6 ) but was also punished by transportation for life or at least up to fourteen years, penal servitude for from four years to life, or Imprisonment not to exceed two years. To "carnally know" or "abuse" a girl under ten years of age was a felony punished as rape, and the same crime committed on a girl between ten and twelve years of age was a misdemeanor punished by Imprisonment with or without hard labor at the court's discretion,The confusion concerning young girls was In English law for some time and might have contributed to the trouble the Massachusetts Bay colonists had In dealing with the molestation of the young. Young males under fourteen years of age were presumed Incapable of committing rape and could not be found guilty In rape cases, "For though In some felonies malltla supplet aetatem,* as has In some cases been shown; yet, as to this particular species of felony, the law supposes an Imbecility of body as well as mind, In discussing evidence in a rape trial, Blackstone follows Hale and notes the following: the woman raped can give evidence under oath, "but the credibility of her testimony, and how far forth she Is believed, must be left to the jury upon the circumstances of fact that concur In

*Evll supplies age. In other words. In some crimes an extremely wicked juvenile was tried as an adult. 14 that testimony," Among the items considered by the Jury* did the woman have a good reputation; did she report the offense quickly and make a search for the rapist (or alleged rapist); did the accused attempt an escape. The accuser found the Jury skeptical, "if she be of evil fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place, where the fact was alleged to be committed was where it was possible she might have been heard, and she made no outcry , , , ," The woman did not have to answer about her connections with other men, but the defendant (the accused) was permitted to show that the woman had had relations with him, and was also allowed to throw doubt on "her character for chastity by general evidence,In the rape of a girl under the age of twelve, testimony was allowed if she could comprehend the oath and its obligations or indicated she knew lying to be wrong. Hale thought such a victim should give information to the court without oath, if the oath was not understood, Black­ stone writes that, "others have held that what the child told her mother, or other relations, may be given in evidence, since the nature of the case admits frequently of no better proof," This was simply legal musing because hearsay evidence or the evidence of a child not under oath

The protections of the law and courts in a rape case 15 were open to anyone. Although the civil law offered no protection to prostitutes who were raped, Blackstone pointed out that English law was not as harsh. It was considered rape to force, "a concubine or harlot" because, "the woman may have forsaken that unlawful course of life . . . . As defined in Blackstone, "the essence of the crime is the forcible violation of the woman, it may be committed on any one, who resists on the particular occasion, whatever may be her general conduct,Still, as demonstrated earlier, a woman of unsullied reputation expected more sympathy from a jury. It was not only the actual perpetrator who was guilty of the crime of rape. Those assisting in the crime including those who held the woman or prevented her from calling for help were considered accessories before the fact. They were liable to indictment, trial, and punishment as principals of the crimes. They were also felons. Those considered accessories after the fact (no examples are given but presumably harboring or concealing the criminals would be one) were liable to punishment or misdemeanor charges under the common law,^^ The English laws also concerned themselves with what Blackstone called, "the infamous crime against nature, committed either with man or beast," It is clear that these crimes were considered quite repugnant and Blackstone shared the concern that the charges in such cases be quite specific, "it is an offence of so dark a nature, so easily charged. 16 and the negative so difficult to be proved, that the accusation should be clearly made out: for if false, it deserves a punishment inferior only to that of the crime itself. Indeed, Blackstone is so repulsed by these crimes that he refuses to dwell on them, "it will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be names ; 'peccatum illud horrible inter christianos non nomineindum. * In the punishment of these crimes, Blackstone first mentions the destruction of Sodom and Gomorrah and notes that ancient English law imitated the divine actions by commanding violators to be burnt to death although some might have been buried alive. Before the break with the Catholic Church, crimes of unnatural sex were handled by the ecclesiastical courts. However, they were made a felony without benefit of clergy by the statute 25

Hen, VIII. c. 6 and revived and confirmed by 5 Eliz, c, 17, Following Biblical tradition and ancient English law these crimes were considered of a capital nature. They remained so under the statute 9 Geo, IV, c, 31 • but Blackstone notes that an execution was seldom held,^^ In crimes of adultery, the English had a complicated legal situation. As in a public crime of immorality, adultery came under the ecclesiastical courts; yet, it was

*So horrible a sin must not even be mentioned among Christians. 17 considered a civil wrong and as such the husband was given compensation by an action of trespass, vi et armis. The payments for damages were usually large but such cases seem to have concerned primarily upper class subjects. The church courts also found themselves concerned with adultery because of the divorce laws. Until 185 7 the church controlled divorce, and adultery was a valid reason for suing for divorce. Common law made it a misdemeanor "to procure the defilement of a young woman." This was considered a breach of good morals, Blackstone reveals the fact that in England, offenses against decency could become an item with which to make political gain. For instance:

, , , in the year 1 6 5 0 , when the ruling powers found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest and willful adultery were made capital crimes, but also the repeated act of keeping a brothel, were (upon a second conviction) made felony without benefit of clergy , , , , But at the Restoration, when men, from an abhorrence of the hypocrisy of late times, fell into a contrary extreme of licentious­ ness , it was not thought proper to renew a law of such unfashionable rigour. And these offences have been ever since left to the feeble coercion of the spiritual court, according to the rules of canon law— a law which has treated the offence of incontinence, nay even adultery itself, with a great degree of tenderness and lenity, owing, perhaps, to the constrained celibacy of its first compilers. The temporal courts, therefore, take no cognizance of the crime of adultery, otherwise than as a private injury,28

The attitudes examined in the above quotation caused in part the Puritan disgust with English society and helped them in justifying their immigration. Yet, in their New 18 Jerusalem, the Puritans found themselves locked in combat with what they considered immorality. Even armed with the Bible as their guiding light and the "evil" example of England to warn them of missteps, they found it was not a simple matter to eliminate or punish offenses which offended public or private morality. Notes: Chapter One

Vol. I (London: Methuen & Co. Ltd., 1966), p7 6 1 9 ,

^Sir William Holdsworth, A History of English Law, Vol. VIII (London: Methuen & Co., Ltd., 1966), p. 301.

^Ibid.. p. 3 0 2.

Vol. IV (London : Methuen & Co. Ltd., 1924), p. 304.

^Holdsworth, Vol. I, p. 620.

Sir William Blackstone, Commentaries on the Laws of England, Vol. IV; Of Public Wrongs (Boston: Beacon Press, 1 9 6 2 ), p. 2 3 3.

^Ibid.. pp. 2 3 4-3 5,

^°Ibid.. pp. 2 3 5-3 6.

^^Ibid.. p. 2 3 6.

^^Ibid.

^^Ibid.. pp. 2 3 6-3 7.

I4rIbid.. p. 2 3 7.

15Ibid.

^^Ibid.. pp. 2 3 7-3 8. 19 17 Ibid.., p. 2 3 8. 1 8 . ^Ibid..1 p. 2 3 9 . 19 1 p. 240.

20^Ibid.

21 •Ibid.,, p. 2 3 8. 22 'Ibid.,1 pp.. 2 3 8-3 9 , 23 1 pp., 241-42, 24 1 p. 242.

25^Ibid.

^^Slr William Blackstone, Commentaries on the Laws of England, Vol. II including books III & IV (Chicago: Callaghan and Company, 1873), p. 1 3 8,

^^Holdsworth, Vol. I, p. 622. See also Blackstone. Vol. IV, p. 61

^^Footnote cited in Blackstone, Vol. IV, pp. 6 0 6 1 . Chapter Two* The Puritan Background Marriage; Divorce; Sex; Courtship

Puritan Marriage Theory

Evidence does not support the common assumption that a

Puritan marriage was sexually ascetic and similar in a way to monasticism except two monks instead of one shared a cell or, in this case, a domicile. Although Calvin encouraged marriage to propagate, he also recognized its value in alleviating incontinency. There was no difficulty in reconciling marriage with the Bible, but Calvin did have problems supporting his views on monogamy in light of the

Old Testament. Since God did give Adam only one wife,

Calvin had an early precedent which he used to his advantage in buttressing his own monogamous inclinations. The

Puritans were influenced and supported by Hebrew traditions and Dutch as well as their own theorists in their consider­ ation of marriage as a civil matter with a "sacred character.

Among the Puritan theorists it is misleading to suppose it was John Milton who started the idea of civil marriage.

In England, Independents had advocated and practiced civil marriage before Milton was born. In the colonies, the

Puritans used magistrates to officiate at marriages twenty years before Milton published his views. As far as the 21 22 Dutch traditions are concerned, the Pilgrims espoused the idea of civil marriage twenty years before the congregation of Scrooby left for Holland.^ In Holland, the Pilgrims discovered chat their ideas on civil marriage were supported by the practices of the reformed churches of that country. The Pilgrims were of course influenced by Dutch practices. These reformed churches established civil marriage in 1580 after the Dutch achieved independence from Spain, Besides support, the Pilgrims found in Holland the legal officers to officiate at marriages and make them part of the state's record. This practice was not existent in England, While in Leyden, thirty-eight Pilgrims were married, twenty-eight of whom went to America,^ Presumably the precedents of their Dutch marriages helped in the colony. In early seventeenth-century England there were several procedures to be followed in order to achieve a proper marriage. First, there was the seventeenth-century equivalent of an engagement. This was the esposal per verba de future— a contract to marry drawn in the future tense. This was more binding than a modern engagement. Second, there was the publication of the banns. This was an announcement that the per verba de future had been made. Third, was the carrying out of the engagement by a contract of marriage drawn in the present tense— a per verba de praesenti, This contract was solemnized in a church with the marriage vows, the pronouncement of man and wife, and 23

the marriage sermon. The penultimate procedure was a feast

and celebration In the home of the groom. The final

procedure was sexual Intercourse to consummate the marriage.

There were heavy penalties for not adhering to this order.

The Puritan objections to these procedures were levies

against the use of rings during the marriage ceremony and

the excesses generated at the feast and celebration In the home of the groom. However, the Puritans did not do away with this celebration,^

In seventeenth-century England, It was the church that

controlled marriage and this of course clashed with the

Puritan Idea of a civil marriage. Because the English left

the Catholic Church before the Council of Trent reformed

the marriage laws, the Anglican Church and the English found themselves suffering from the confusion In which the

canon law had entangled man during the Middle Ages, The

Anglican Church recognized the validity of all marriages

consummated by Intercourse and proceeded by a public or private contract, with or without witnesses and In future

or present tense. The neglect of the proper marriage

procedures just outlined was discouraged by spiritual

penalties and not by any punishment levied by a civil court.

Because of the confusions resulting from this disorganized situation, England had a great many clandestine marriages, and bigamy was not unknown nor unpopular,^

Although In the seventeenth-century the Anglican Church retained control over marriage, this control had been 24 challenged from tht time of the sixteenth-century reformation. Following the teachings of Robert Brown, Independent thinkers began to maintain that marriage was entirely a civil act, Among the Independents, marriage was executed by an exchange of vows before witnesses without the religious solemnization required by the orthodox church. In his work. Life and manners of true Christians (1582), Brown, in outlining the procedures necessary for marriage, does not mention a church celebration. But, Brown also does not explicitly state that marriage is a civil matter. During his 158? trial before the Court of High Commissions, John Greenwood first criticized the church's role in marriage by saying marriage was not 'any part of the minister's office,'^ Although the Anglican Church prevented the reform of marriage laws in England, the Puritans in New England used their geographic isolation as protection while they regularized marriage procedures. In New England, no couple could marry before publishing their intentions through an announoement "aade at three suocessive public meetings or through a written notice tacked on the door of the meeting­ house for fourteen days. The wedding was under supervision of the state I marriage was still of religious significance but the church ceremonies were done away with, and a civil magistrate replaced the minister as officiator. The magistrate could marry no one until the banns had been published in accordance with the law. Before a month 25 lapsed, the groom was required to report the marriage to the town clerk or suffer a fine,^ Not required by common law, the Pui'itans nevertheless required parental consent for the marriage of a boy of fourteen or a girl of twelve. The governor did have the power to override the veto of the parents if he thought it unjustified. The state could intervene in family matters. Usually the parents granted consent if the parties of the marriage were in agreement. No good Puritan would overlook the proper wishes of his children; marriage was certainly a proper wish.® Although not part of the common law, since early marriages were a common practice in Massachusetts, the law made it a crime for a man to 'draw away the Affection of any Maid . . . under pretence of Marriage' if he had not first obtained permission from parents, the governors, or if they were absent, the nearest magistrate. If the girl thought she had been denied 'timely or convenient marriage' she could complain and attempt to seek permission from higher authority. In this connection elopement had serious consequences, but it was a common practice, particularly among couples who got the cart before the horse : We find William Hawkins conveying Hannah Hoppin away by night without her friends' consent and sending her to Barbados, where she is reported to be with child. Also appearing before a court were such individuals as Timberlake, who carried off a pregnant widow, and Isacc Gross, who "abducted" Mary Mirack, a pregnant servant girl. 26

These Puritan injunctions and court cases dealing with men sneaking off with their pregnsmt girl friends could relate in some way with primitive and ancient practices of wife capture and the rape symbol in the marriage ceremony of ancient or primitive societies. The Puritans were concerned with the prevention of irregular marriages of a clandestine or bigamous nature. Therefore, the publication of the banns was quite important

to them. In Massachusetts in 1639 law required this publication while other New England colonies relied upon custom. Besides the public announcements discussed earlier, a Puritan couple might make known their intentions before witnesses at a formal gathering. The couple might also choose the church as the place for an announcement and even sneak some religion into the matter by having the minister preach a marriage sermon, In marriage as in so much else of their lives and philosophy, the Puritans were never quite able to decide what was God's and what was Caesar’s. They wanted a civil marriage but at the same time they believed marriage to be a sacred pact between two people. Indeed, the marriage contract implied a "divinely imposed obligation to love one's spouse," Often the marriage did not start with this love; it was "commanded by will and based on reason" and if not the cause did become the effect of marriage, Still despite their precautions and the hope of divine intervention, the Puritans found themselves plagued by 27 Irregular marriages. In particular they had trouble with the marriage privately contracted by the couple themselves. This was a difficulty carried over from England where, because of the lack of a definite law, both the church and state authorities relied on ancient precedent. Under this precedent, a simple act could bring about a marriage which was legally binding. All that was needed was a declaration from the couple that they were man and wife. It did not matter if this declaration was secret or how it was expressed; its existence was enough. In England cohabita­ tion could also be used in establishing a marriage,By insisting upon publication of the banns and making marriage legal only if a proper official performed the ceremony, the Puritans hoped to eliminate secret or irregular marriages. They failed in their task, and if such a marriage took place, the Puritans would not allow an annulment,In connection with irregular marriages in New England one expert, G.L. Powell, thought the evidence showed that; , , , although the first generation of Pilgrims adhered strictly to the regular civil ceremony, the practice of common-law marriages after the manner of the clandestine unions of England and the Continent soon became more or less prevalent in the colonies , . , ,15 There are no statistics that actually support this idea, and Powell implies that he is speaking from a lack of court cases invalidating irregular marriages. Yet, in 1692 a Massachusetts law definitely prohibited irregular marriage,

The distance between England and the colonies made it 28 difficult for the Puritans to control bigamy, and this type of Irregular marriage did exist, "Henry Jackman presented for lying In saying hee was a single man & attempting marriage with severall, who hath since confessed hee had a wife In England . . . . " The unfortunate Jaclcman compounded his misdeed by carrying a torch next to a haystack and barn. It Is impossible to determine to what extent his attempted blgany led the judges to order him whipped "twenty stripes." The court did order that Jackman return to his wife In England by the next ship or pay a twenty pound fIne. A s for the actual marriage ceremony, the Puritans were Influenced somewhat by the Dutch marriage practices. The Dutch ceremony evolved from a gathering of friends to witness the marriage. Later, the Dutch became more elaborate and did provide a church ceremony for any couple who wished to add strength to the marriage bonds of the civil government. The Puritans were more rigorous In keeping the ministers out of the ceremony. Probably, the friends of che couple would gather to see them married, but the minister would have to be satisfied with reading the banns on Sundays. Attempts were made to give a particular pastor more to do, but these failed:

In i6^7, . . . , at a 'great marriage' In Boston the magistrates refused to allow Peter Hobart to preach, on the ground that they 'were not willing to bring In the English custom of ministers performing the solemnization of marriage, which sermons at such times might Induce. '1 8 In the early days of the Plymouth Colony, It was William 29 Brewster, an elder, who had the duty of officiating at weddings. In time, Brewster's place was taken by the governor or one of the magistrates of the province. Still later, the colony appointed a special officer for each town to officiate ac weddings. In Plymouth Colony, Governor Bradford wrote that the first marriage was performed, •according to ye laudable eustome of ye Low-Countries . . . by the magistrate, as being a Civill Thing, Toward the end of the seventeenth-century the Puritans began to allow a more religious observance of marriage. It is hard to pin down this change in attitude toward the religious marriage ceremony. One source notes, "Marriage in the Bay Colony before 1 6 8 O was solemnized only by the magistrates." This would indicate a change after 1 6 8O, but no hard evidence is presented.Powell traces the change to

1692 when Plymouth and Massachusetts became one colony. He states that at this time a 'settled minister' could perform the marriage ceremony. It was not long before clergymen in other parts of New England received the same authorization. To Powell these facts indicate, "that for some reason an insistent demand had arisen for the religious solemnization

Puritan Divorce Theory

A s was the case with marriage, English law and customs also provide a backdrop for Puritan divorce. The church in England controlled divorce just as it controlled marriage. 30 Until 1753t English law kept the principle of canon law that no marriage could be destroyed. Separations and annulments could be had by desiring couples, but séparations were not considered a dissolving of the marriage bond. In a separation neither husband nor wife could remarry legally. In an annulment, a particular marriage was ruled null and void from its beginnings Of course, the Puritan ideas of divorce differed from those of Anglican divines just as did their ideas of marriage. Since in New England marriage was a civil contract, divorce also fell under the purvey of the courts and civil authorities. The Puritans in New England allowed divorce with the right to remarry, "when either party to a marriage could prove the other had neglected a fundamental duty," The Puritans would allow no permanent separations under any circumstances,^^ Puritan ideas on divorce were rather liberal for the time. Most were granted because of desertion and adultery or remarriage. Cruelty was also grounds for a divorce, Milton added some other reasons for which a Puritan ought to be able to secure a divorce ; these included: contrariety of mind; incompatability as well as indisposition, Milton thought divorce to be *a law of moral equity,' In Massachusetts between 163 9 and 1692 forty petitions for divorce were handled by the courts. Most of these were based on desertion or adultery,Morgan has outlined the fundamental causes for divorce in New England as the following: natural incapacities of insufficiencies 31 which actually led to an annulment; finding a married person bound in marriage to another (bigamy); having a married person convicted of 'criminal uncleaness as render them one flesh with another object than that unto which their marriage has united them'; the committing of incest in a marriage; if a married person had, 'by fornication before marriage, been made one with a person related unto the person with whom they are now married, within the degrees made incestuous by the law of God , . . .'; in a case of 'malicious desertion'; in cases of long absence when the government might declare one party to the marriage to be legally dead,^^ Massachusetts was not the only place in New England in which there was a relatively lenient divorce law, Connecti­ cut granted divorces on several grounds including willful desertion of a partner for three years or an absence for seven years, impotency, gross cruelty, or adultery. Apparently the New Haven officials were upset at having a man divorced for impotency sire a child by the gambling woman who became his second wife. Jonathan Edwards' grandfather was given a divorce because of his wife's "chronic sexual promiscuity." Between l664 and 1732 Connecticut had thirty-seven divorce cases.

Despite their liberality with divorce, both church and civil authorities attempted to keep a close watch on families in order to prevent breakups. If a couple was lawfully married, they were required to live together even 32 if the cohabitation was not harmonious. There are cases of church censure of women who left their husbands.On the other side of the coin were the problems^caused by men who attempted to strand their wives in England, Under the penalty of law, these men were forced to return to England at the earliest possible moment. Many times these errant husbands attempted to forestall the authorities and keep the Atlantic Ocean between them and their spousesi

Mr, Atherton argued in July, 1 6 7 6 , that though he had been long away from his wife, his business was not yet done and so he could not go home ; but he was ordered to return to her before next session of court. Three sessions later, in April, 1 6 7 7 , he was still around , , , , The court collected twenty pounds on his bond and told him to go by the next ship or pay twenty more,28 There were of course domestic quarrels, and despite the efforts of the churches and courts some households foundered on the shoals of matrimonial disharmony, The church and courts also attempted to insure that certain compatible adults did not keep company if it was against some social taboo. This was true even for unmarried persons even if there was no proof of illicit sex. In l646 one Simon Bird of Boston was excommunicated because of his suspected behavior with a servant, A father was admonished because of his frequent entertainment of his daughter's boyfriend,Here the authorities were not hinting at impropriety between the father and the beau but rather were attempting to stop the father from providing a suitable environment in which the daughter and her young man might engage in less than socially acceptable behavior. Parents 33 got in trouble on this score frequently. Wlien Joseph Belcher and Waitsill Spur ignored a court order and continued to visit with each other at the girl * s house, the court fined Joseph twenty pounds and Waltsill's father ten pounds. When the court convicted Walter Hickson and Mrs. Samuel Bedwell "for keeping company and being too familiar," the unhappy couple found themselves sitting in the stocks for two hours. They were promised ten stripes each if they were ever again discovered alone together. A s the old adage reminded, "An ounce of prevention is forth a pound of cure." If many times it now seems that the Puritans were too ready to deliver more than an ounce of preventative, it was because in divorce they saw much more than a pound of cure for a soured marriage. Divorce indicated instability and in the Puritan Commonwealth and philosophy, instability was an intolerable condition. They were willing to invade privacy and trample individual dignity in order to insure an even keel.

The Role of Sex in Marriage and Life

The Puritans recognized the sexual appetites in men but of course wished these to be satisfied within the confined of marriage. The final procedure in a complete marriage was consummation. If there was no consummation, no bodily union, no intercourse, then the Puritan marriage was incomplete. Marriage was no marriage without sex. This was not an original or even unusual thought. As noted earlier. 34 impotency was a proper reason for divorce. Although only New Haven had a specific law concerning this subject, in Massachusetts there were cases of annulment because of the husband's deficiency. The Puritans did not try to stifle the physical aspects of marriage. John Cotton considered women necessary for man's comfortable existence and was quite adament in his belief that marriage should be based on more than just Platonic love. In one case, the Puritans of the First Church of Boston expelled a member who 'denyed coniugall fellowship vnto his wife for the space of 2 years together . . . .' The Puritans placed only one limitation upon sex in marriage; it was not to interfere with religion. A man must not love his wife more than he loved God. This caused mental anguish among the Puritans.^^ On the whole, the Puritans treated sexual pleasures the way they did other kinds of sensual stimulations. If there was a fast day and comforts were to be sacrificed for religious contemplation, sexual intercourse was also abandoned. As one scholar notes, "The Puritans were not ascetics ; they never wished to prevent the enjoyment of earthly delights. They merely demanded that the pleasures of the flesh be subordinated to the greater glory of God." Despite their recognition of pleasures of the flesh, the Puritans (at least some of them) still had to cope with feelings of guilt, shame, and disgust as far as sex and even bodily functions were concerned. In Cotton Mather, modern scholars have a literate Puritan in whom they can 35 study Puritan Ideas about sex and the effects of sex upon the Puritan psyche, Mather recognized his sensual nature in much the same way he acknowledged his pride. Yet, he could never escape feelings of guilt at the fulfillment of his desires. Even though Puritan thinkers had long achieved a degree of frankness in dealing with sensual desires, acknowledging this on a personal level could produce a great deal of pain. They recognized man's sexual side, but the Puritans were not neutral about this recognition of sex. They did not "extol the joys of the flesh," The Puritans merely observed what they considered the essential nature of sex; they were better at warning of fornication than of pointing out the bliss to be achieved in the marital bed,^^ In Puritan thinking sex and even the body could become dangerous preoccupations* Despite Puritans' frank discussions they felt uneasiness, even guilt, over lawfull intercourse, in part because they distrusted the body and in part because they recognized the capacity of sex to undermine spirituality, Puritan divines did not quite concede that the body was a part of nature in the way other creatures were, They did not ordinarily distrust nature as a source of truth and beauty when it was considered as a part of GoC's design (which included a higher and better source of truth, beauty, and enjoyment in the Scriptures), Though the body was a part of nature, it took its place in a special category, a category apart, because the body was so often a source of sin. More than other creatures it was prone to degeneration and extraordinarily suscep­ tible to corruption. The adjectives most commonly applied to it in the Puritan discourse were 'vile,' 'filthy,' and 'unclean.' Jonathan Mitchell summed up the attitude implicit in these terms with his denunciation of 'the old Crazy Rotten house of the body,'36 36 Mather like some other Puritans was torn two ways by his physical self. He wanted gratification but "craved denial," Mather was fascinated by his physical life and constantly tried to relate It to matters of the spirit. His tooth pains and constant headaches he supposed were to remind him of his sin; excretion "humiliated" him but was a reminder of man's abased conditions In a vile body, Mather believed that on the Day of Judgment the body and spirit would be reunited. However, he turned the resurrected body Into something not a body at all. This body would need neither food, drink, nor sleep; there would be no pain and no disease. The resurrected body would be under spiritual control, In any Puritan schema the spirit was the controlling force. The Puritans accepted (or tried to accept) the needs and satisfactions brought on by food, drink, and sex. But, just as man could not love his wife more than God, the experience of the flesh was always to be considered of much less Importance than the experience of the spirit,This attempt to resolve the claims of the flesh and the spirit produced great sexual strain among the Puritans, Widows and widowers alike Including famous or Important personages such as John Wlnthrop, Samuel Sewall, and Cotton Mather remarried several times and produced clouds of children attempting to alleviate the strain. The guilt always remained; the tensions could not be relieved by following a tortured middle way, but for the Puritans there was no 37 other road. At the age of fifty-five, Mather put his dilemma into two sentences» 'The Diseases of my soul are not cured until I arrive to the most unspotted Chastitie and Puritie.' Yet Mather jeopardized his chances of achieving this super clean state when he could also write, 'I do not apprehend, that Heaven requires me utterlie to lay aside my fondness for my lovelie Consort.' The invocation of heaven demonstrates the confusion Mather suffered through on this topic, Mather also referred to •former pollutions' and admonished himself to 'abhor* thoughts of anyone but his wife. He also wrote of the necessity to be temperate in 'conversation' with his wife,^^ The Puritans thought that marriage could save them from sins of the flesh. To prevent fornication they tried to marry their children as soon as possible. The Puritans also believed that a successful marriage would prevent adultery, and as mentioned before, they tried to insure that husbands and wives lived together and did so peacefully.^® Despite his doubts, guilts, and confusions, Mather could look to marriage and its sexual activities as one of the good things in life. Young Cotton prayed for a wife but at the same time entertained fears that marriage would deflect him from serving God, He also feared that his desire for marriage sprang from 'misguided appetites,' At another time, Mather reminded God, 'that Marriage was His Ordinance ; and that He had promised, no good Thing should be withheld from mee,'^^ No matter how he turned or twisted, sex, the body, and marriage provided the Puritan with much psychic 38 torture. This should not be seen as unusual. Even today, after Freud, psychiatry, and Psychology Today, people are confused about the subject of sex. Liberation does not always bring understanding. If the Puritans had trouble dealing with sex in the confines of marriage, sex outside marriage was anathema. Here all the Puritan hostility against the flesh welled up. Adultery could be punished with death and fornication with lashes applied to the backs of the offenders. Their laws on these offenses were tough. Yet, the Puritans were under no misconception about strict obedience to such laws, "breaches must be punished lest the community suffer the wrath of God, but no offense, sexual or otherwise, could be occasion for surprise or for the hushed tones of voice. There was such an abundance of sexual activity outside marriage that one scholar has suggested that, "the early New Englanders possessed a high degree of virility and very few inhibitions."^^ This seeming abundance of sex crime has been attributed to the lack of wives in the New England colonies. Unable to relieve their sexual desires with their chose, legally wedded mates, these men and women sought pleasures from the circumstances arranged by fate.^^ Servants also caused the Puritans problems concerning sexual offenses. Servants could not marry without their master's permission, and since for economic reasons this was hard to obtain, many servants were driven to illicit relations. When they were not seeking enjoyment with each other, servants (particularly 39 female) found themselves subject to attentions (sometimes unwanted) from their masters.This servant problem meant that the Puritans often had to deal with illicit sex within their own homes. This was not pleasing to the authorities nor was it conducive to domestic stability; yet, by denying servants marriage the Puritans went against their own ideas on marriage as a way to check illicit sex. Enter­ tainment might also cause deviation from the straight and narrow. The Puritans had mixed feelings about the cause and effect nature of dancing vis a vis sexual misconduct. Perkins, an English Congregationalist, thought dancing could lead to several vices, including drunkenness, idolatry, and sexual misconduct. But, John Cotton did not worry about mixed dancing, only about, ^lascivious dancing to wanton ditties, and in amorous gestures, and wanton dalliances, especially after great feasts.* All this he condemned a •great flabella libidinis.*^^ Cotton Mather was more general in his condemnation of dancing. Mather once devoted a sermon to the evils of dancing using as his text Isaiah 3x •Because the daughters of Zion are haughty, and walk with outstretched necks, glancing wantonly with their eyes. Mincing along as they go, tinkling with their feet; The Lord will smite with a scab The heads of the daughters of Zion, and the Lord will lay bare their private parts.* 4o Bundling

Despite their feelings of sexual guilt and their repressive actions concerning sex outside the institution of marriage, the Puritans could still allow a highly

curious courtship practice called bundling to exist. This still controversial (among historians) activity sparked much debate and recriminations among the Puritans, It also led to sexual excesses which shocked them. Perhaps the best description of this courtship activity comes from the pen of Charles Francis Adams: TWO young persons proposed to marry. They and their families were poor: they lived far apart from each other; they were at work early euid late all the week. Under these circumstances Saturday evening and Sunday were the recognized time for meeting. The young man came to the house of the girl after Saturday's sun-down, and they could see each other until Sunday afternoon, when he had to go back to his own home and work. The houses were small, and every nook in them occupied; and in order that the man might not be turned out of doors, or the two be compelled to sit up all night at a great waste of light and fuel, and that they might at the same time be in each other's company, they were 'bundled' up together on a bed, in which they lay side by side and partially clothed. Writing in the late time of Victorian attitudes, Adams noted that the custom no doubt degenerated into "something coarse and immoral," but that at least it was in the open and not secret,^® Still another picture of bundling was more optimistic about the chances of immorality infecting the young lovers :

. , , when, on a Sabbath night, the faithful swain arrived, having, perhaps walked ten or more weary miles, to enjoy the company of his favorite 41 lass, In the few brief hours which would elapse before the morning light should call him again to his homeward walk and his week of toil, was It not the dictate of humanity as well as of economy, which prompted the old folks to allow the approved and accepted suitor of their daughter to pursue his wooing under the downy coverlid of a good feather bed (oftentimes, too, In the very same room In which they themselves slept), rather than to have them sit up and burn out uselessly firewood and candles, to say nothing of the risk of catching their death o' cold? Indeed, was not the sanction of bundling In such cases a tacit admission, on the part of the parents, of their perfect confidence In the young folks, which necessarily acted upon the latter as, at once, a strong restraint from wrong, and a strong Incentive to right doing?49 Bundling or practices similar to It have been traced back to Wales and to locations on the Continent, Apparently In New England the practice (where It existed) stemmed from an early date. Indeed, some historians have seen a connection between bundling and the Dutch practice of "queestlng." It was Washington Irving who accused the people of Connecticut of having tried to subvert the morals of the 'Dutch lasses of the Netherlandts,• Bundling was not without Its critics In colonial society; many felt it was a reprehensible practice. Some scholars see bundling as a practice of the lower classes who owned the smaller, less well heated cabins. Indeed, the colonial practice of strangers sharing beds whether In Inns or private houses became confused with bundling. This was especially true when strangers boarded at a private residence where the owner could only offer a bed shared with a member of the family, Bundling was the practice of a crude society perhaps 42 trying to control pre-marital sexual contacts, and it does seem to be a practice noted mostly for its courtship aspects, A visitor to Massachusetts in 1759-60 called bundling * tarrying' and observed that it took place between the time of courtship and the posting of the banns; a time of informal engagement. This visitor saw in bundling an innocent practice which rarely produced evil or unwanted consequences,^^ There is some question over the extent of the practice of bundling. One early historian wrote that it existed among 'all classes to the great honor of the country, its religion and ladies.' Other commentators such as Charles Francis Adams did not believe that bundling occurred in the city limits (particularly of Boston), But, even without bundling, Adams confessed that sexual inconti­ nence prevailed in the large towns of New England, Adams thought sexual misconduct was a general evil in New England, and bundling merely provided a channel for its expression, The church records have few references to bundling. One church case which implies bundling is found in the church trial of Joseph Tucker, Two witnesses swore they saw Tucker and Susannah Pelton 'early in the morning in bed together, covered with Bedding,' When told to confess. Tucker, a resourceful man, produced evidence which acquitted him of the charges. This was an early case of church disapproval. In time, ministers began to attack bundling.

In 1730 a pastor in Brewster, Massachusetts, lectured on the increase in illicit sexual relations which he blamed in part 43 on *a wicked practice of young people in their courtships. Bundling was somewhat controlled by the church and by its widespread practice (at least in some sections), but by the middle of the eighteenth-century it was more and more disapproved by moral leaders. In 1733, Jonathan Edwards stated that people laughed at condemnation of bundling. Later in the century verses were written for and against the practice, and the courts show some evidence of being more intolerant against couples (even though betrothed) lying in bed together. A l ? 8 l sermon struck out against the custom which caused females to allow males into their beds under the pretext.of marriage. Observers of the practice during the 1700's stressed the permanency of the relationship of the partners engaged in bundling. Our 1739-60 traveller wrote : 'When a man is enamoured of a young woman and wishes to marry her, he proposes the affair to her parents .... If they have no objection, they allow him to tarry with her one night, in order to make his court to her. At their usual time the old couple retire to bed, leaving the young ones to settle matters as they can; who after having sate /sic^Z up as long as they think proper, get into bed together also, but without putting off their undergarments, in order to prevent scandal. If the parties agree, it is all very well; the banns are published, and they are married without delay. If not, they part, and possibly never see each other again; unless, which is an accident that seldom happens, the forsaken fair one prove pregnant, and then the man is obliged to marry her, under pain of excommunication.33 Although this analysis sounds almost like one of modern practices, the rules were strict and it is strongly implied that marriage was almost always the outcome. An eyewitness 4 4

from 1 7 8 5 -9 0 said bundling was not practiced among the Intelligent, educated classes. People living in large and well warmed houses also did not engage in this activity. This observer also notedthat it was not the fashion to bundle with just anyone, only with a favorite beau. This was presumably a show of the high regard a favorite achieved. However, it appears that some coaxing was often necessary in order to land on the bed.^^ Some historians have made attempts to link bundling with social forces. Connections have been alleged between bundling and the Great Awakening and the French and Indian War. Charles Francis Adams who was working out his own problems about his Puritan lineage thought bundling demon­ strated the rise of immorality brought on by the Great Awakening ; . . . it is obvious that the prevalence of such a custom /bundling^/ would open a ready and natural way for a vast increase of sexual immorality at any time when surrounding conditions predisposed a community in that direction. This is exactly what I cannot help surmising occurred in New England at the time of 'the Great Awakening' of the last century, and immediately subsequent thereto. The movement was there, and in obedience to the universal law it made its way of the lines of least resistance. Hence the entries of public confession in the church records, and the time of immorality in the presence of which the clergy stood aghast.57 In his work on bundling, Henry Stiles came to the conclusion that the French and Indian War helped bring on moral laxity in the colonies. Of course, it is not unusual for those who study society to postulate that wars bring on a collapse of morals, but Stiles also links this collapse with abuse 45 of bundling, Stiles bases his assumptions on the work of clergymen and church records. Stiles quotes one clergyman/ historian who used church records to come to the conclusion that s '. . . the influence of the French war had been as unfavorable to morals as destructive to life ; and that the absurd practice of bundling preva­ lent in those days, was not infrequently attended with the consequences that might have been expected, and that both together, aided by a previous growing laxity of morals, and accelerated by many concurrent cases, had rolled a tide of immorality over the land, which not even the bulwark of the church had been able to withstand. The church records of first society, from l?6o to 1790, raise presumptions of the strongest kind, than then, as since, incontinence and intemper­ ance were among the sins of the people,*58 Stiles asserts that because of the French and Indian War and the attendant weakening of the moral fiber of New England, bundling was abused and became more and more a hindrance to the public good, A few men attempted to stem this tide of immorality but they were helpless, Stiles manages to paint quite a grim picture of immorality eating away at the foundations of the Puritan state,Unfortunately, because most of his sources are clerical and his records from the churches, and because of his uncritical acceptance. Stile's judgment in these matters is not above suspicion, i^s vivid as he is in painting the rise, practice, and the pernicious effects of bundling; Stiles supplies little information concerning the decline of the practice. He does take note of the warmer and larger houses and "the improved condition of the people after the Revolution," but beyond these mechanistic considerations he has nothing to say,^® Adams, 46 too, although he mentions some social considerations, is better at judgment than historical analysis. Bundling is undoubtedly an interesting subject to modern observers of colonial society. However, records of its existence and even scope of activity are quite slim. As with so many other subjects, even its definition was not always clear. To most colonials bundling was a way of courtship, and this has been the emphasis of this discussion. But, to some colonials bundling was also the practice of placing weary travellers in the same bed or having them share the bed with a member of the household. Presumably this did not include a sex consideration since usually men and women did not share a bed, but this was not always the case. When it was not, sex arose and things again became complicated. A letter from a British soldier serving in New England and dated 1777 describes the following situation* •The night before we came to this town /Williams- town, Mass^/, being quartered at a small log hut, I was convinced in how innocent a view the Americans look upon that indelicate custom they call bundling. Though they have remarkable good feather beds, and are extremely neat and clean, still I preferred my hard mattress, as being accustomed to it; this evening, however, owing to the badness of the roads, and the weakness of my mare, my servant had not arrived with my baggage at the time for retiring to rest. There being only two beds in the house, I inquired which I was to sleep in, when the old woman replied, 'Mr. Ensign,' here I should observe to you, that the New England people are very inquisitive as to the rank you have in the army; 'Mr. Ensign,' says she, 'our Jonathan and I will sleep in this, and our Jemima and you shall sleep in that.' I was much astonished at such a proposal and offered to sit up all night, when Jonathan immediately replied, 'Oh, la! Mr. Ensign, you won't be the first man 47 our Jemima has bundled with, will it Jemima?* When little Jemima, who, by the bye, was a very pretty, black-eyed girl, of about sixteen or seventeen, archly replied, "No, father, not by many, but it will be with the first Britainer* (the name they give to Englishmen), In this dilemma what could I do? The smiling invitation of pretty Jemima— the eye, the lip, the— Lord ha* mercy, where am I going to? But wherever I may be going now, I did not go to bundle with her— in the same room with her father and mother, my kind host and hostess too! I thought of that— I thought of more besides— to struggle with the passions of nature; to clasp Jemima in my arms— to — do what? You'll ask— why, to— nothing! for if amid all these temptations, the lovely Jemima had melted into kindness, she had been an outcast from the world— treated with contempt, abused by violence, and left perhaps to perish! No, Jemima; I could have endured all this to have been blest with you, but it was too vast a sacrifice, when you were to be the victim! Suppose how great the test of virtue must be, or how cold the American constitution, when this unaccountable custom is in hospitable repute and perpetual practice. * ° 1 This story might be apocryphal, at least in parts,— the braggings and boastings of a soldier yearning to be envied and admired. But, it does demonstrate that bundling could be construed other than a courtship procedure, and that it was existant as late as the American Revolution. Bundling, marriage and divorce proceedings, Puritan thoughts, theories and agonizlngs on sexual relations are important items to analyze if sex crimes in New England are to be understood in relation to society. Yet, this is not the only background and history that needs to be studied. It is also important to look at the role of the church and the musings of Biblical scholars and Puritan divines of the time. These also had great impact on the Puritans and their attempts to deal with sexual peccadillos. Notes : Chapter Two

______, Delinquent Saints (New York* Columbia University Press, 195^)» P. ill. On the Puritans and Jewish tradition see, George E, Howard, A History of Matrimonial Institutions, Vol. II (Chicago, The University of Chicago Press, 1904), p. 179. Howard says, "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 reenacted the harsh precepts of the primitive Jewish code."

"Marriage In Early New England," The New England Quarterly, I (July, 1928), 323.

Ibid., 3 2 7-2 8. On the marriage ceremonies, also see, Edmund Morgan, The Puritan Family (New York* Harper & Row, Publishers, 1 9 6 6 ), pp. 3 0-3 1 . i^reafter cited as Morgan, Family.

Morgan, Family, pp. 30-31.

^Powell, "Marriage," 323-24.

"^Morgan, Family, pp. 31-32.

®Oberholzer, Delinquent Saints, p. 112. However, the ardent wooer could find himself In court If he attempted to entangle the affections of a girl without her parents' permission* "Benjamin Scott of Brantery. convict of Endeavoring to draw away the affecclons of Prudence Gatlelfe without her parents' leave . . . ."or "John Lorln convict by his own confession In court of making Love to & engaging the affections of Marry Willis daughter In Law to John Man without her parents consent & after his being forewarned by them." In both these cases the penalty was five pounds.

48 49 See, Publications of the Colonial Society of Massachusetts, Records of the Suffolk County Court 1 6 7 1 -1 6 8I Part I, Vol. 29 (33 vol.; Boston; Colonial Society of Mass., 1933-66), p. 221 and p. 559. Hereafter cited as, Suffolk County, Vol. 2 9 .

On these practices and the theories about them see, George E. Kcvard, A History of Matrimonial Institutions, Vol. I (Chicago; The University of Chicago Press, 1904), pp. 1 5 6-7 9 .

^^Powell, "Marriage,” 328.

^^Oberholzer, Delinquent Saints, p. 111.

^^Powell, "Marriage," 330-31.

^^Ibid., 331.

15 Ibid., 333.

1 6^Ibid.,

^^Suffolk County. Vol. 2 9 , p. 2 3 2. When Jackman went to court for his punishment, he arrived drunk and thus added five lashes to his whipping. This was truly a man who stepped from the frying pan to the fire.

^^Powell, "Marriage," 3 2 6-2 7.

^^Ibid.

^^Suffolk County. Vol. 29, p. Ixxvii.

^^Powell, "Marriage,' 330.

^^Morgan, Family. p. 34-.

^Ibid. 24, Oberholzer, Delinquent Saints, p. 117.

^Morgan, Family. p. 3 5. 50

^^Henry B. Parkes, "Morals and Law Enforcement in Colonial New England," The New England Quarterly. V (July, 1932), 4 4 7. Hereafter cited as Parkes, "Morals,"

^^Oberholzer, Delinquent Saints, pp. II8-1 9 ,

^^Suffolk County. Vol. 2 9 , p. Ixxv.

^^Ibid.. p. Ixxv.

^^Oberholzer, Delinquent Saints, p. l4l.

^^Morgan, Family. p. 34.

"The Puritans and Sex," The New England Quarterly. XV (December, 1942), 591-93. Hereafter cited as Morgan, "Sex."

^^Ibid.. 594.

of Puritan Intellectuals, 1596-1720 (New York: Oxford University Press, 1971), p. 20È.

^^Ibid.. pp. 202-03.

Morgan, "Sex," 6o4-o6. In colonial New England the term fornication usually referred to pre-marital sex between engaged couples or sex between single people.

^^Middlekauff, The Mathers, p. 203.

^^Morgan, "Sex," 594.

^%bld., 595-96.

^^Ibid.. 596. 51

^^Ibld., 5 9 7 -6 0 0.

^^Oberholzer, Delinquent Saints, p. 2 3 1.

^^Ibld., the text Is from the Revised Standard Version.

^^Charles F. Adams, "Some Phases of Sexual Morality and Church Discipline In Colonial New England," Massachu­ setts Historical Society Proceedings, XXVI, 504-05. Hereafter cited as C. Adams, "Phases." 4o ^Henry R. Stiles, Bundling; Its Origin, Progress and Decline In America (New York; Book Collectors Association, Inc.; 193^), pp. 7 2-7 3.

50 Ibid., pp. 6 6-6 7. See also, Howard, Vol. II, p. l82.

^^Oberholzer, Delinquent Saints, p. l4l.

^^See Stiles, Bundling, pp. 73-74» Parkes, "Morals," 444; and Howard, Vol. II, p. l84.

tlon In Burnaby, Travels In North America.

^^Stlles, Bundling, p. 109.

^^Stlles, Bundling, pp. 75-76.

^°Ibld., p. 8 1 .

^^Ibld., pp. 6 8-7 0 , In this context who can say how many soldiers or even civilian travellers took advantage of such situations for their own pleasures. On the other hand, could parents actually have been as naive as Indicated In this quotation? Were there factors of safety In such bundling procedures overlooked by this startled, love-sick soldier? Chapter Three: The Influence of Religion, the Church, and the Bible

The Influence of the Bible

A great influence on the development of Puritan law was the Bible, In many ways this influence exerted as great a control on the law and legal matters as the English common law or legal precedents. Although the Puritans discovered that their new environment called for changes, in legal matters they tried to follow Biblical injunctions. When necessary the Puritans made changes, and at times they committed errors. But, the guiding beacon was always there for them to see. Massachusetts was not called the Bible

Commonwealth for no reason; the Puritans did try to set up government based on the rules— both social and legal which they found in the Bible.

The first charter stated that the governor, the deputy governor, and the assistants could hold courts. For the first ten years of the colony, the Court of Assistants was the judicial organization. The members of the court were magistrates, and they passed few laws and promulgated few orders. If a complaint was made, the court would hold a hearing to determine whether the conduct of the accused deserved punishment and what, if any, the punishment should be. Some authorities believe the Puritans did not study 52 53 English precedent in relation to their early criminal

cases, but they must have had some awareness of English

legal practice which influenced their thinking. The early

Massachusetts colonists had no precise criminal code; they

practiced discretionary justice, givint the court power to

determine what was a crime and what was its punishment. If

there was doubt, the magistrates consulted the Bible and at

times, the ministers or elders of the colony were asked

questions to which they gave written replies.^

The Influence of English Ecclesiastical Courts

In England the ecclesiastical courts were quite

important in dealing with sexual transgressions. The

Massachusetts colonists were quite used to this jurisdiction

of the English ecclesiastical courts, especially the Arch­

deacon's Court which punished adultery among other crimes.

As noted before, the English churchwardens sometimes acted as spies and reported to the archdeacon any infraction which might have escaped the secular authorities. Although the

Puritans disliked the Anglican Church, they reproduced in

Massachusetts the English dual authority. This meant

Massachusetts churches had a wide variety of crimes over which they could exert authority,^ The influence of the

English ecclesiastical courts on Puritan law is clear.

Those who left England for Massachusetts (especially those who were Puritan) were no doubt familiar with church courts and law. The power and jurisdiction given the magistrates 54 In the colony was an organizational change and reflected the early Puritan arguments to trainsfer the business handled in the ecclesiastical courts to the civil courts.

The Puritans considered the ecclesiastical courts too lenient in their handling of moral offenses. In their punishments for adultery, blasphemy, false opinions, forni­ cation, drunkeness, schism, slander, and swearing the

Puritans* magistrates usually conformed to English ecclesias­ tical court procedures but, "with greater vigor and severity."^

When they moved from discretionary justice to codifi­ cation of laws, the Puritans still used the Bible as their chief guide. Again, English influence was important. Most

Englishmen of the sixteenth and seventeenth centuries had some knowledge of the Bible. It was their source of authority. The Puritans differed from their English brethren only in their literalism and more defined ideas of what the

Bible commanded: The Puritans saw analogies between them­ selves and the ancient Hebrews. Therefore, the law God gave to the old Israelites was quite suitable for the Puritans, the people chosen by God in sixteenth and seventeenth- century England.^

The Codifications

In the Massachusetts laws, the influence of the Bible is reflected in the early codifications. John Cotton's 1 636 code entitled "Moses His Judicials" had criminal provisions which contained severe punishments. Following the Old 55 Testament, Cotton prescribed the death penalty for adultery, sodomy, bestiality, and incest,^ Cotton’s ideas proved too harsh even for the Puritans. Thomas Hutchinson claimed to have seen a copy of "Moses His Judicials" corrected in Governor Winthrop’s handwriting. The corrections eliminated the death penalty for several sexual offenses (among others) including: defiling an engaged woman; incest; sodomy; bestiality ; and sex with a woman in her father’s house and kept secret until her marriage to another man.^ The capital laws contained in the l648 code, the "Laws and Liberties," also reveal biblical influence. Among other crimes, bestia­ lity, adultery, rape, and sodomy were punishable by death.

In each capital law provision (except for rape), the

Puritans provided a biblical reference from the Pentateuch,

Several laws exactly reproduced the Old Testament language.

For examole; "If any man or woman shall LIE WITH ANY BEAST, or buit creature, by carnall copulation; they shall surely be put to death; and the beast shall be slain, & buried, and not eaten. Lev, 20, 15, 16,"^ Among the non-capital offenses, the fornication statute also followed biblical dictates. This law empowered the magistrates to join the parties involved in the transgression in marriage. This contrasted with the English practice where the justices of the peace were concerned with the problem of finding support for the bastard child of such a union. They wanted to find the father. The Puritans by joining the parties in marriage were following Exodus 22; l6. The Puritans were also 56 concerned with, "the moral issue connected with the colonists' belief in the sanctity of the family unit and their conception of its role in community life. Here again, in the adoption of the biblical rule, can be seen their insistence upon conforming their laws to the patterns of right living that had been developed in the colony,"® Earlier than the code of 164-8, was the "Body of Liberties" (164-1), This consisted of about one-hundred civil and criminal laws and was incorporated in subsequent codes. Again, it took its criminal provisions from the Mosaic code, and reference was not made to English common law. As in the later laws of 164-8, the l64l text also made references to biblical injunctions,^ Still, the Puritans did not use the Bible as their only guide. There were modifications and precedents which came from other than the Holy Book, For instance, the sodomy law, a capital statute in the 164-8 code with a biblical reference, was also influenced by other than divine sources. It was qualified in such a way that severe punishment and not execution met those who were 'forced' or were under fourteen years of age when the act took place. According to Haskins, "This exception demonstrates that in the course of revising an earlier law, first enacted in the Body of Liberties, the colonists not only took account of the element of intent but introduced the recognized English legal presumption that a boy under fourteen years of age was deemed to be legally incapable of committing sodomy,This change was not 57 unusualy in the l648 code which unlike the earlier "Body of Liberties" did take secular antecedents into account. For instance, the fornication statute, although based on the Bible, also drew on the decisions handed down by the magistrates when discretionary justice was practiced," It is important to note that this still can be traced back to the Bible which the magistrates undoubtedly consulted when dispensing discretionary justice. The l648 code can be considered as one breaking new ground: Here was no mere compilation of English common-law rules or of established local custom, no haphazard syncretization of popular equity and biblical precepts, no mechanical piling of new legislation upon old; it was a fresh and considered effort to establish new provisions and revise former ones which were suitable to the conditions of a new civilization which would also provide starting points for future development of the community,12

There is only one capital law established by the

Puritans which does not have biblical precedent; that is the statute concerning rape. According to Haskins, the Puritans could find no scriptural authority for putting a rapist to death. The laws of Moses made the crime not punishable by death but rather by the payment of damages and marriage of

the rapist to his victim. Common law defined rape, "as

consensual Intercourse with a female over ten;" it was a felony punishable by deaty. The Puritans by the l6^0's were alarmed at the increase of sexual crime. Apparently, they thought that a more severe punishment for rape was called for than the one provided by the Mosaic code. Here, the common law was a convenient precedent as were the other biblical 58 examples of crimes which called for execution. For example, when speaking of punishment for rape, Wlnthrop argued that,

•by the equity of the law against sodomy' a violator of a child should be punished by death,

This Puritan rape law Is an example of cultural forces shaping Puritan statutes dealing with sexual offenses. As

Haskins notes. It was the Humfrey case In which girls under ten were molested which jolted the Puritan lawmakers Into framing a capital law that was at odds with biblical examples. The Puritans used the common law to define rape of young girls (under ten) and then slid around the road­ block set up by biblical example by forming an analogy between the rape of a girl and the crime of sodomy which was

al offense In the

The Environment

Almost Immediately after their arrival the Puritans were forced to consider the matter of sexual violations. It was the environment and actual crime which caused the first statute against a sexual violation. The first reported sex crime In Massachusetts occurred in 1 6 3 1 , a full ten years before the earliest Instituted codification of Puritan law In that colony. For enticing an Indian woman, John Dawe was whipped, and at the next session of the Court of Assistants the death penalty was ordered for this kind of activity, Wlnthrop notes, "At the last court, a young fellow was whipped for soliciting an Indian squaw to Incontlnency. Her 59 husband and she complained of the //wrong,// and were present at the execution, and very well satisfied," This was only the opening shot in the long Puritan campaign against immorality. The surprising element of this campaign was the relative lack of vindictiveness with which the Puritans pursued and punished the transgressors. As one historian quaintly put it: When we consider the freedom of the manners of the time, the clothing worn by the woman, f \ J the limited sleeping accomodations and the Ignorance of the servants, it is remarkable that the penalty /^eath/ was inflicted in so few cases. The records are full of cases of fornication, uncleanness, wanton dalliance, unseemly benaviour, unchaste words, and living away from wife, and the more so during the earlier years. Possibly, the juries may have thought the penalty too severe and found the parties guilty only, of 'adulterous behavior,' which happened in Boston in 16^5. This followed a case of the previous year where a young woman had married an old man out of pique and then received the attentions of a young man of eighteen. They both were hanged.15 These early transgressions were not committed against a stark life devoid of pleasure. Perhaps one of the most persistant and most inaccurate ideas about the Puritans was that they lived a dull, drab existence. This was not the case ; their lives were regulated but not without pleasure. There were incidents of pleasure-loving wives, 'founde sitting in other mens laps with theire Armes about Theire Necks . . .' There were cases of drinking and dancing to excess, but drinking and dancing were not in themselves considered evil by the Puritans. Morgan points this out, "Contrary to popular impression the Puritan was no ascetic. 60 If he continually warned against the vanity of the creatures

as misued by fallen man, he never praised hair shirts or dry

crusts. He liked good food, good drink, and homely comforts ;

and while he laughed at mosquitoes, he found it a real

hardship to drink water when beer gave out,*'~^

When the individual overindulged or committed some

transgression, the sins were usually quickly placed in the

public forum, either in the church or the courts. Neighbors

spied on neighbors, magistrates pried into private affairs,

and the deacons or elders of the church were given

authority to, 'inspect ye walk of Professors' and make sure

all toed the line,^® What escaped man's punishment did not

evade the wrath of God, Winthrop describes a drowning in

terms of divine retribution, "They /two male servants/

went out to gather oysters, and, not making fast their

boat, when the flood came, it floated away, and they were

both drowned, although they might have waded out on either

side ; but it was an evident judgment of God upon the, for

they were wicked persons. One of them, a little before.

being reproved for his lewdness , , , , ..19

The Use of the Church

Besides using religion in the sense that biblical laws

were followed as closely as possible, the Puritans took

advantage of the church as the all pervading organization, and they used the officers and meetings of this institution

to seek out and punish wrong-doers. Briefly, the procedures 6l in these cases were as follows; the elders, deacon or a special committee would confer with the minister as to whether an offence which had been committed should be brought before the whole church, "on the elders devolved the responsibility of supervising the conduct of church members, and hence, with respect to the offenses within their jurisdiction, they were a particularly effective agency of law enforcement." Only the entire congregation could censure a miscreant. With minor charges, public humiliation was not inflicted as long as a penitence was done. Some congregations guarded themselves by requiring two or three witnesses to the alleged offense.^® If the offender was properly sinful, he was brought before the whole church which stayed after the Sunday morning sermon. His feelings were not spared. The offender was openly named in court, and a written statement of his offense was presented to the congretation. The minister explained the offense and asked the congregation for judgment. After this, a deacon would give the offender the verdict and the judgment. Usually the judgment consisted of the public humiliation of the offender. This was accomplished by having the wayward member appear before the congretation on one of a succession of Sundays to face the total membership and make a confession of guilt.In the face of the over­ whelming moral rectitude and sense of righteousness on the part of the congretation, the sinner was undoubtedly cowed into submission.

However, the congretation, the church, wanted more than 62 just the admission of guilt and public penitence from a delinquent member. There was great emphasis on the sinner's state of mind, not unusual among the Puritans who in their primitive way were good psychologists. Evidence of this emphasis can be found in varying punishments the Puritans gave to the same crime. These ranged from acquittal to excommunication. One historian of the Puritan church finds the Puritans at least attempting fair-mindedness in these church cases. Ola Winslow comments that the "array of cases shows an attempt at fairness and a regard for individual rights which go far to exonerate many of the brethren from the literalness which was their besetting sin. Charity is also more frequent than harshness, and harshness itself more understandable."^^ Yet, despite this observation, the

Puritans meeting as a religious group could be just as harsh on a transgressor as the Puritan state. Examples of this can be found in cases before a congregation and in sermons delivered on execution days.

Ruth Gooch, the wife of a York Maine selectman, suffered a cruel public humiliation because of her liason with a local man. For her sin, she was required to garb herself in a white sheet and stand before the congregation for two successive Sundays. She was also to get down on her knees and beg pardon. To make matters worse, the state saw fit to duplicate the punishment, reducing it, however, to one day's humiliation. The fact that this public shame was suffered denotes the interest the sinner had in her soul. It also 63 demonstrates the violation of privacy that a church would assent to in order that a sinner be saved,Sins that might have been treated lightly were made graver if the congregation discovered that the accused lied about activities. There are cases of people being excommunicated because they lied about having pre-marital sex, Pre-marital sex demonstrated by the birth of a premature baby was itself usually punished by a more public confession of wrongdoing. In one case a couple denied "fornication" before their marriage. They appealed their case to a council of churches after their own church refused to believe them and adjudged them guilty. The council issued a report; 'By sundry sworn evidences it was proved that their first child had a full grown body ripe for the birth & long hair & long hard nails, & ci^'d & fed well when it was first born tho/ug7h but five months & nine days from its parents marriage, & the woman made oath before Justice Edson & the council before we went to the Meeting House, that they believed no Child ever attained to such ripeness & perfections at 5 months & nine days from ye Conception.' Faced with this evidence and public presentation of a private matter, the couple did not deny the charges. They had faced expulsion from the church but because of their confession escaped this fate In sermons preached on execution days the Puritans demonstrated two things : the extreme cruelty they could muster as well as the unusual degree to which they were willing to analyze the individual psychology, A particularly good set of examples is from Cotton Mather's "Pillars of Salt," a collection of his execution day sermons. Through 64 the blasts and fulminations which Mather hurled at the condemned, the historian can get a clear idea of the type of total repentance and blotting out of the individual person­ ality or psychology which the Puritans desired from those doomed to die at state contrivance because of their sins. Mather describes the attempted redemption of one about to be executed; Great Endeavors were used, that she might be brought unto a True Faith in the— of the Lord Jesus Christ, for the pardon of her Blood— 5 and it may be,hone Endeavoured it more, than that Reverend man, old Mr, Wilson, who Wrote several Sheets of pathetical Instructions to her, while she was in Prison. That Renowned Man, Old Mr. Cotton also, did his part in endeavouring that she might be Renewed by Repentance; and Preached a Sermon, on Ezek. l6. 20,— /?7 Is this of thy_ whoredoms a small matter, that thou hast Sh— my Children? Whereof great Notice was taken. It was hoped, that these Endeavours were not Lost : Her Carriage in her Imprisonment, and at her Execution, was very Penitent. But there was this Remarkable in her Execution: She acknowledged, her Twice Essaying to kill her Child, before he could make an End of it; and now through the Unskilfulness of the Executioner, she was turned off the Ladder Twice, before She Dyed.^5

Marner sometimes managed these nice touches of divine retribution— an implicit threat rather than an explicit warning. As hinted in the last sermon, the Puritans had a profound belief that God as well as man would punish those who violated the precepts of the law (remember Winthrop and the drowned man). At times, Mather did much more than simply hint at this topic. He burnished it and displayed it for all

*7?7 Denotes that the word cannot be deciphered. 65

to see. Essentially God punished by bringing disaster upon the perpetrator of the crime or by leading or allowing the sinner to descend deeper into sin and therefore farther from

God's salvation. The sinner became hard-hearted. As an example of the righteous use of disaster as punishment,

Mather cites the following case :

There was a miserable man, at Weymouth; who fell into very ungodly practices: but would parti­ cularly Signalize his ungodliness by flounting at those Pools (as he call'd em) who would ever Confess any sins, laid unto their Charge.

This man lived in abominable Adulteries ; but God at lenth smote him with a Palsey. His Dead Palsey was accompanied with a Quick Conseince, which compelled him to Confess his crimes : But he Confess'd them so indifferently, that by their Divulgation, they reach'd the Ears of the Authority: And in this Confession there was involv'd and concern'd, the Wretched Woman, who chiefly had been concern'd with him in Trans­ gression.

By the Law of this Country, Adultery was the then a Capital Transgression, as it hath been in many other Countrys: and this poor Adulterer, could pA not escape the Punishment which the Law provided.

For an example of one led further into iniquity by one sin,

Mather describes this situation:

. . . A Person abandoned unto the Sins of Unchastity, is rarely brought unto Repentenoe: God punishes the Unclean, by giving them over to Eternal Obdura- tion in their Unchastity. These are Sins, whereof, 'tis wretch that is Habituated therunto, ha's no Heart for Christ, no Heart for Penitence ; no Heart for Piety left unto him. Hence you shall see, that though Malefactors, have by an Unchast life brought themselves unto the very Gallows, the Fire of Lust hath Baked their Hearts into such Insensible Hard­ ness; and Seared them into such Insensibility, that nothing will work upon them. We have seen, that they'l continue their Whoredomes, in the very Prison; they'l go out of the World with Lyes in their Mouthes; you shall have almost as many Lyes from them as Tears : The Scottishness, upon them. 66

is the y&mazement of all Spectators. /?7 Whence is this? 'Tis the punishment of sin with sin, in those, who as Eph. 4. 19, Being past all Feeling, have given themselves over unto Lasesuious- ness to work all Uncleanness with Greediness,2? In these execution sermons Mather was trying to give the Puritans and others in his audience a course of instruction on the wages of sin. Also, it was thought or hoped that the repentant utterances of those about to be executed would serve as short statements as to why one must not begin sinful ways. As Mather explained it, "This Collection, /of sermons as statements? I suffer to go abroad, in Hopes, that among many other Essayes to Suppress growing Vice, it may signifie something, with the Blessing of Heaven Thereupon, to let the Vicious understand, what have been the Cries of our Misérables, when passing into another World, Behold, an History of Criminals, whom the Terrible Judgments of God have Thunder struck into Pillars of Salt. For those who missed the instructional points, Mather provided some examples of what led criminals to go astray. Among other items, Mather listed; "Apostacy from good beginnings in religion;" "Notorious unprofitableness under the means of Grace" (this meant not attending church or taking advantage of the hope church offered); "Evil company keeping ;" and "Disobediance unto parents" (this was a frequent cause of trouble according to Mather,Being more specific about sex crimes, Mather issued the following admonishment from a woman executed for murdering her illegitimate children, "I do warn all People, and especially. 67 Young People, against the Sin of Uncleanness in particular; 'tis that Sin that hath been my Ruine ; well had it been for me, if I had answered all Temptations to that sin, as Joseph did, How shall I do this Wickedness, and Sin against God,"'^® Mather also had ideas about the effects of unchastity on private morals. He drew on the theory of one sin starting a chain reaction and leading to another. Let the Sins of Unchastity be Loath'd by us, with a Peculiar Antipathy; because ordinarily there are more Sins that folow, to Punish them* 'Tis very Rarely otherwise, Unchast Persons have this foretold concerning them, in Prov, 5. 11. l4. They shall mourn at the last, and say, I was almost in all evil; Alas, If you wallow in the Nasty Vices, and Pubbles, of Unchastity, God will give you over, to be Almost all in Evil ! There are Two Things, that frequently occur among us. One thing very Frequent is This; A person that falls into One Act of Unchastity, if they don't presently with Bleeding Souls fly to the Blood of the Lord for Pardon, they are usually left unto another. Yea, and God punishes the Unclean, by giving them over, to proceed from one kind of Unchastity unto another. First the young Wretch, confines his Wantonness unto himself alone; but he goes on to Fornication, he goes on to Adultery; he goes on, ' * to nefandous and stupendous Abominations, The Fire of Lust, become like the Fire of Hell, in the Oven of that Unchast Soul; 'tis never quench'd, until God shall drench it in the Lake that burns with Fire and Brimestone,3l Mather provides evidence to back his fire and brimstone. It is the case of a W.C. executed for rape in Boston in September, l68i, "This man had been Wicked Overmuch, His Parents were Godly Persons; but he was a Child of Belial," Note that here Mather cannot explain why a boy from a good family would go bad. He neatly dispatches this problem by linking the child with the devil, Puritan psychology went only so far, Mather continues about the boy* 68 He bagam Early, to shake off his Obedience unto Them; and Early had Fornication laid unto his Charge; after which, he fled unto a dissolute Corner of the Land, a place whereof it might be said, 0 Surely, the Pear of God; Is not in this Place ; He being a Youth, under the Inspection of the Church at Roxbury, they, to win him invited him to Return unto his Friends, with such Expressions of Lenity towards him, that the Reverend Old Man, their Pastor, in a sermon on the Day when this man was Executed, with Tears bewayled it. After this, he lived very dissolutely, in the Town of Dorchester; where, in a Fit of Sickness, he Vow'd, that if God would spare his Life, he would Life as a New Mans but he horribly forgot his Vows. The Instances of his Impiety, grew so Numerous and Prodigious, that the wrath of God could bear no longer with him: he was Ripened for the Gallows. After his Condemnation, he Vehemently Protested his Innocency, of the Fact, for which he was Condemned; but he Confessed, that God was Righteous, thus to bring Destruction upon him, for Secret Adulteries, A Reprieve would have been obtained for him, if his foolish and froward f T 7 Refusing to hear a Sermon on the Day appointed for his Execution, had not hardened the Hearts of the Judges against him. 32 Mather includes many cases to shock his readers into an awareness of the peril in which they placed th«ir souls and lives when they gave their lives over to immorality. This minister was not even adverse to reducing his own children to tears concerning the fate of their souls.This was not deliberate cruelty (although cruel it undoubtedly was) but merely the way the Puritans chose to teach, instruct, and explain. Despite this fiery oratory and the punishments previously explained, the churches in New England handled 69

cases routinely. After the procedures already noted, all

that was usually required was a confession. Most of the

confessions stemmed from fornication cases, and they were

handled in a routine way. This routine was due in part to

the fact that fornication was a common crime before the

churches. Confessions were recorded and the date, the name

of the transgressor, and an indication of admission ot guilt

were all taken down.^^ An indication of the prevalence of

fornication comes from the fact that in 1665 the General

Court in Massachusetts became alarmed by the number of cases.

In 1668 the Court noted that there were a large number of

illegitimate children in the colony. By l6?6 a church in

Dorchester in a 'Covenant for Reformation' complained that

'lasciviousness' and 'uncleanness' were part of a 'gineral

^sio/ growing evill/s7 of this time.' This alarm should not

be taken as an indication that the whole Puritan population was falling into hedonism— it is simply an example of the

way the Saints viewed their society.

Because the Puritans wanted the restoration of the

errant member to the full graces of the church, the confes­

sion was very important. Most were made immediately, but

in one case thirty-five years elapsed before an admission

of offense. The confessions were not unlike the execution

day speeches. They were lengthy, of a formal style, and

self-abusing. Ironically, the specific offense was rarely mentioned. An historian notes of one, "Recorded in mediocre

Latin, the acknowledgement contains the customary outpouring 70 of guilt feelings, a note of intense and sincere repentance, a prayer for forgiveness, and a request for the prayers of the church. Directly following the heading and preceding the confession proper, the word fornication appears in

Greek." This confession was described as "exceptional."^^

Mo:it transgressors agreed to public confessions for several reasons. First, was the parents desire to have a child conceived before wedlock baptized. Church records contain many examples of confession followed by the baptism of the c h i l d . A n o t h e r cause for public confession was the desire of the transgressor to be admitted into the church. One statistic reveals that one-third of all the confessions of fornication made in Plymouth between 1 683 and 1788 included the confessor's admission into some type of church member­ ship. In the town of Sharon every fornication confession between l?k? and 1766 included the admission of the trans­ gressor to the covenant.^® By the late eighteenth-century, the churches noted that public confession was keeping many from membership. To rectify this situation, some changes were made. In 1779 the First Church of Salem discontinued public confession in fornication cases. The Milton church in 1 78 9 was advised by a committee it established that public confessions for fornication were not necessary, and the abolition of these confessions was recommended. In one church which tried to keep public confession, some of the confessors demanded copies of their confessions so they could be used in defamation cases. The pastor of this 71 church quickly erased these entries In the church records.

In sitting In judgment on these cases of pre-marital sex, the churches did use some procedures as far as evidence and proof were concerned. A case In Milton con­ cerned a woman who said her child was born later than believed. She stated that confusion arose because of a mix-up between her child and one born during the night when she was supposed to have given birth. To clear up this matter and make a proper Judgment, the church In Milton relied on court testimony already given and on the Infor­ mation garnered from Its own Investigation. Recorded Is a question asked a witness as to whether other babies had been born on the night In question. Although the witness' answer Is not recorded, the woman was convicted by the church. In Haverhill, the First Church formed a two man committee to Investigate rumors that a certain Hannah

Middleton conceived children before her marriage. Again, others were questioned. A William Townshend and wife said they saw a letter written by Hannah before her marriage which said she was pregnant. When Hannah denied authorship of the letter, the church not only relied on its own Inves­ tigation but asked Townshend to testify. He did so and repeated his story. Apparently, the church had some trouble deciding the facts but finally voted not to admit the children to baptism. In another case, when a putative father and applicant for church membership pleaded not guilty, a witness stated that the man previously admitted 72 to being the father. One blackball was enough, and the man was not admitted to the membership.^® This non-admission to church membership need not have been a permanent injunction. With the passing of the years, leniency would sometimes creep in to massage the hearts of the elect. Here, it is possible to cite cases including the one of Lydia Foster of Haverhill in which the church had to deal with repeated offenders. After being suspended in 1732 for having a second illegitimate child, the Foster woman proceeded to wear down the church's patience by having a third and then a fourth bastard. She was excommunicated, but a few years later the church relented its position. In 17^3 she was accepted for confession.^^ Of course, fornication or pre-marital sex was not the only transgression which was considered by the Puritan churches for punishment. Incest, adultery, bestiality, rape, and prostitution also came before the congregations. According to one historian, adultery caused more ecclesias­ tical prosecution than any other provision of the Decalogue, The Puritans broadly interpreted the Seventh Commandment and as indicated by the fornication cases, precluded all sex outside marriage. Unfortunately, the Puritan records do not always distinguish between adultery occurring between married persons or one married person and one unmarried person. Although the Puritans had a clear definition of adultery, the terms adultery and fornicator are sometimes interchanged.^^ There was also confusion about publication 73

of the adultery law. Wlnthrop notes in 16371 . . . the elders (who had been requested to deliver their judgments concerning the law of adultery, about which three had been kept long in prison) returned their answer, with the reasons thereof, to this effect: that, if the law had been suffi­ ciently published, they ought to be put to death. Whereupon the court, considering that there had been some //defect// in that point, and especially for that it had been oft questioned among the deputies and others, whether that law were of force or not, being made by the court of assistants by allowance of the general court; therefore it was thought safest that these three persons should be whipped and banished; and the law was confirmed and published,^3 In the church records an early adultery case concerns a James Mattock who was excommunicated in l64o for his activities. Before he left for America, Mattock denied his wife her conjugal rights. This he said he did because he was punishing himself for abusing his wife before their marriage. Mattock failed to provide sip port for his children but did find two shillings a week to give to a Mrs, Whittacker, a frequent companion. For this activity. Mattock found himself in prison for ten days. Also in England, Mattock became intoxicated and engaged in 'uncleane dallyance and filthy carriage* with a barmaid. Mattock's arrival in Boston, chief city of a bible commonwealth, did not change his habits. Twice he became drunk, and he continued to correspond with Mrs, Whittacker, In his church trial Mattock pleaded innocent and showed two letters from Mrs, Whittacker as proof of his morality. However, he did not display two other letters which could have incriminated 74

hlm. The church did not fall for Mattock's duplicity; he

was excommunicated, but a year later he made a public

confession and was restored to the good graces of the

membership, Hawthorne made Hester Prynne the most

famous (albeit fictional) Puritan adulterer. Although

both church and state did at times inflict Hester's exotic

punishment on adulterous transgressors, in the church

summary excommunication was the usual punishment for adultery.^^

Unlike adultery or fornication, incest is mentioned

only rarely in church records. For that matter, it is

mentioned only rarely in court records. The earliest church

record of an Incest case concerns Josiah Owen of Quincy.

The confusing facts of this case are not enhanced by the

multitude of relationships either by blood or marriage which

the Puritans considered in any incest action. Desire Under

the Elms variety of incest this is not. In 1690 Owen with a group of soldiers was making his way toward Canada.

Smallpox broke out on their ship and six died and were buried at sea. Among the victims was Josiah Owen’s brother,

Ebenezer. Owen married his brother's widow and then fled

the authorities but was one day confronted by a pastor and

two members of the church who remonstrated with him over

his actions. Owen refused to appear before the church and was excommunicated as an 'impenitent, scandalous, wicked,

incestuous sinner.' Church records reveal a few other 75 cases of incest: public confessions of incest were given in 171 6 by a man and by two women in the 1780's. In 1798 excommunication befell Job Northrop of Lenox for committing incest with his daughter. The extremes the Puritans would go in connecting incestuous relationships can be seen in several cases. In 17^0 a woman was suspected of entering into an incestuous relationship with her dead sister's husband. There was insufficient evidence to prove this so she was allowed to confess only to fornication. The Plymouth church refused to validate marriage with a deceased niece's husband because of a possible incestuous taint. The year

1 74 9 found the Charlemont church unable to decide whether or not marriage to a deceased brother's spouse was proper. Finally, it was concluded that marriages of this type were inexpedient, and the partners could not be admitted to church membership, Rape is another sexual offense rarely mentioned in the church records. The Reading church foolishly allowed a man to join after confessing to an attempted rape. Later, he was accused of courting his maid and pleaded guilty to this charge, Puritan forgiveness did not always pay off with a reformed church member. The 1 66 6 case of George Bates of Boston is ambiguous but interesting. He was censured for 'unchast carridges' with a girl. If this involved a sexual attack then Bates placed himself right in a very confusing legal situation since the girl was only 'nine or ten years 76 old. Bestiality, a crime rarely mentioned in the civil records, appears only once in the church archives. In l 6 ? k Benjamin Good of Roxbury who might have been mentally unbalanced, was excommunicated for the crime of bestiality. Two weeks later he was executed for the same crime. A local pastor, Samuel Danforth, used Good's crime to preach on the text Genesis l8i 20-21. In this sermon Danforth stressed that God's judgment on Benjamin Good was a warning for all, 'such judgments as these have a voice, a loud voice, a dreadful voice, calling all Israel, to Hear and Pear, and do no more so wickedly.* Danforth continued his sermon with an allusion to the crime when he said of Good's execution that God, 'cutt of this rotten and putrid Member, that he might prevent spreading the Infection.' For his conclusion, Danforth noted, 'Tis an Angelic Service to pluck poor sinners out of the Snare of Lasciviousness.'^® The Puritans seemed to have been extremely chary of involving themselves with cases of prostitution. There are very few examples in either the civil or church records of "woman's oldest profession." The clergy usually ignored prostitution but some examples are to be found in the records. In 1653 a twelve year old boy was admonished for being with evil company and patronizing a brothel. At the end of the seventeenth-century a woman was excommunicated Li-Q for bawdery. ^ 77 Emile Oberholzer, the chief analyst and historian of Puritan church disciplinary records, has made some overall generalizations about these records, Oberholzer's study of church and state records reveals that "proportionally" the church handled more fornication cases than did the state. Using statistics from the years 1726-1780, Ober­ holzer finds that the Middlesex Court of General Sessions

sentenced 523 single women for fornication but only l6o couples. For the same period, the Middlesex County Church Records reveal 3^ couples, 34 women, and 11 men adjudged

guilty of fornication. Using the years 1 6 7 1 -1 6 8 0 , Oberholzer finds that the Suffolk County Court judged 53 couples, 43

women, and 56 men to be guilty of fornication. Having only partial church records, Oberholzer notes five women and two men mentioned in connection with church fornication cases for that same period of time, Oberholzer finds significant the large proportion of men sentenced by the court for fornication in contrast with the small proportion censured by the church for the same crime, Even though Oberholzer's figures do not seem to be as significant as he understands them, they do indicate that the Puritans in church were just as active as those in court in policing public morals. These church cases do indicate some fluctuation perhaps because of societal pres­ sure, For the seventeenth-century this is hard to discern. Statistics for these early years are not complete and some 78 churches show a drop in case numbers while others record a rise. For these çarly years, Oberholzer draws the following conclusion, "It is therefore impossible to ascertain what influence, if any, the constitutional changes of the time exerted on church discipline," The eighteenth-century records are more promising showing some clear patterns, according to Oberholzer. Using eight church records for the years 1700-1769, Oberholzer finds an increase in cases for a certain decade. For the first decade of the century there are only six cases, but for the third there are fifty-six. For the fourth decade, the figure drops to forty, but for the years 1750-59 it rises again to forty-nine. Individual churches had even greater variances. In accounting for these differences Oberholzer dotes on two influences. He cites the Great Awakening, a social phenome­ non whose connection with New England sexual activity has raised a ballyho among historians (to be discussed shortly), and he mentions the decline in civil action. Oberholzer thinks that perhaps the rise in church cases dealing with sex crime can be attributed to the decline in civil prose­ cutions for such activity.Another commentator on the church records notes the following: Figures derived from church records are of little value, because it is impossible to say what proportion of the people in any particular town was connected with the church. Bpt they corro­ borate the deduction that morals remained strict during the seventeenth century, degenerated after Queen Anne's War, and degenerated again during the Revolution, Church records show a marked but 79 temporary Improvement after the Great Awakening» this also, is visible in court records, though there the curve is less emphatic,52

The Great Awakening

As the above quotation indicates, some historians are concerned with the Great Awakening as a social force affecting sexual morals. Unfortunately, the study of this subject has too frequently degenerated into a praise or damn dialogue, Charles Francis Adams touched off this debate with his article in the late nineteenth-century on the Puritans and sex. First, Adams retained a low regard for the morality of his Puritan ancestors : , , , I think it not unsafe to assert that during the eighteenth century the inhabitants of New England did not enjoy a high reputation for sexual morality. Lord Dartmouth, for instance, who, as secretary for the colonies, had charge of American affairs during a portion of the North Administration , , , referred to the commonness of illegitimate offspring 'among the young people of New England' as a thing of accepted notoriety; , , , ,53 Yet, Adams was at some pains to explain what he called a "peculiar" situation in New England, as far as sexual morals were concerned. He not very convincingly attempted to accuse the New Englanders of certain misbehaviors and then justify the transgressions because they were not severe or because of certain practices : The situation as respects sexual morality which prevailed in New England during the eighteenth century seems to me to have been peculiar rather than bad. In other words, though there was much incontinence, that incontinence was not promis­ cuous ; and this statement brings me at once to 80 the necessary consideration of another recognized and well-established custom in the more ordinary and less refined New England life of the last century . . . it is to this carefully ignored usage or custom that we must look for an explana­ tion of the greater part of the confessions recorded in the annals of the churches, I refer , , . to the practice Icnown as * bundling, ' 5^ But, it was not bundling which preoccupied Adams, it was the Great Awakening, Adams speculated that the extreme excitement of the Great Awakening led people into sexual license and therefore accounted for most of the immorality he found in the eighteenth century. As he put it, "it is not probably that men and women in the condition of mental and physical excitement described could go about their daily duties without carrying into them some trace of morbid reaction. It was a species of insanity; and insanity invariably reveals itself in unexpected and contradictory forms,Adams believed that the effect of the Great Awakening could be measured by the public confessions of immorality which were made in the church, Adams* reading of the evidence led him to believe that everywhere people were becoming susceptible to a type of religious fanaticism which led them in turn to confess to immorality: Jonathan Edwards for instance mentions, in the case of Northampton, how the young men of that place had become ’addicted to night-walking and frequenting the tavern, and leud practices,’ and how they would ‘get together in conventions of both sexes for mirth and jollity, which they called frolicks; and they would spend the greater part of the night in them*; and among the first indications of the approach of the epidemic /of religious fanaticism/ noticed by him was the case of a young woman who had been one of the greatest 'company keepers' in the whole town. 81

who became 'serious, giving evidence of a heart truly broken and sanctified,'36

Adams traces what he considers to be madness on a larger scale in the town of Braintree during the Great Awakening:

The whole community was in a sensitive condition morally and spiritually,— so sensitive that, as the Braintree records show, the contagion extended to all classes, and, among those bearing some of the oldest names in the history of the township, we find also negroes, 'Benjamin Sutton and Naomi his wife,'— grotesquely getting up before the congre­ gation to make confession, like their betters, of the sin of fornication before marriage. It, of course, does not need to be said that such a state of morbid and spiritual excitement would necessarily lead to public confessions of an unusual character. Women, and young women in particular, would oe inclined to brood over things unknown save to those who participated in them, and think to find in confession only a means of escape from the torment of that hereafter concerning which they entertained no doubts ; hence perhaps many of these records which now seem both so uncalled for an so inexplicable,37

Despite the length of his article, Adams never really specified how the Great Awakening broke down public morals.

Rather, he seems to confuse the public confessions, perhaps induced by extraordinary moral fervor, with an actual breakdown in the moral fiber of society. From previous evidence, it is possible to see that even the public confessions were not that unusual, and Adams does not give statistics to prove that more immorality occurred during the Great Awakening than during other times. Even a careful chronicler of world marriage customs, George

Howard, took his cue from Adams and believed thau the Great

Awakening and all the moral fervor it unleashed caused the rise in numbers confessing to pre-marital sex, Howard also 82 seems In sympathy with Adams' Idea tnat bundling as well as the Great Awakening caused an increase in immorality. The

Great Awakening by disturbing the equilibrium of the populace, led to sexual excesses, and bundling gave an opportunity to practice those excesses.

Even though there is little evidence for these allegations, critics of Adams have rushed to defend the morality of the Puritans, apparently without realizing that Adams never seriously put it in question. The chief critic is Henry Bramford Parkes who in one of his several essays on Puritan sexual morals takes great umbrage with

Adams* ideas. In debating Adams, Parkes does make some points concerning Puritan morals. He states that these morals were those of a primitive people who kept "the habit of anticipating marriage." After pointing out that the confessions of immorality cited by Adams do not match the dates of the Great Awakening, Parkes goes on to say:

It is, as a matter of fact, very improbable that the Awakening had any such effect. Its opponents brought against it every plausible accusation; and Charles Chauncy compiled a book of over four hundred pages, in which he described all its evils in detail; but even he did not accuse it of promoting immorality. A survey of all the polemics of all its numerous enemies shows that only twice did anybody make any such criticism, nor was the accusation ever made in any of the controversial pamphlets and newspaper articles which it occasioned.

When Parkes does discover evidence referring to rampant immorality such as a clergyman's letter to England that,

'our presses are for ever teeming with books and our women 83 with bastards,' or a writer who described George Whitefield as a promoter of, 'Wantonness between the Sexes,' he disavows the statements by saying in effect that the authors were not fair or objective observers of the colonial scene.Parkes is not content to stop with this attack on what Adams never actually proved. He goes on to cite church records which prove that the Great Awakening actually improved moral standards : . . . the evidence of such church records as contain relevant statistics is all in favor of the belief that the Awakening markedly improved the morals of New England; in churches affected by it the number of confessions of immorality decreased immediately and decisively. At Plymouth in 64 years before the Awakening there were 25 confessions; in 24 years after there was none (but between 1?64 and 1781 there were 1 6 ). At Middletown in 11 years before there were 29; in 11 years after there were 6. At Harwich in 17 years before there were 22; in 17 years after there were 7 .°^

It is an old saw that statistics like the Bible may be cited to prove any particular point. From the confusing arguments and academic over-kill surrounding the Great

Awakening and its effects on sexual morality, it can only be stated that nothing— no trend or line of development— emerges clearly. Neither Adams nor Parkes are very convincing in their claims either for or against Puritan morality. Yet, a social event which caused much excitement and fervor (witness the term Burned Over District) such as the Great Awakening must have had some implications in regard to public morality. What seems likely is that immorality did not actually rise during this time, but 84 rather that the religious fanaticism generated by the evangelism provoked consciences into spilling publicly past transgressions. The Puritans themselves looked for the causes of immorality in sources other than those of a religious nature. Notes : Chapter Three

Colony (Boston: The Society for the Preservation of New England Antiquities, 1935), p. 199.

^George L. Haskins, Law and Authority in Early Massa- chusetts (New York; The MacMillan Company, i960), pp. S9-90.

^Ibid., pp. 183-84-.

Ibid. 145.

Ibid., 125.

Ibid., 2 6 6. Either Wlnthrop was more lenient in his thinking or the purported corrections seen by Hutchinson were in another hand, for later many of these crimes became capital offenses under Puritan law.

^Ibld., p. l46. See also. The Laws and Liberties of Massachusetts, Reprinted From the Copy of the 1648 Edition In the Henry E. Huntington Library (Cambridge: Harvard Univer­ sity Press, 1929), pp. 5-6. Hereafter cited as Laws and Liberties. On bestiality, the 1611 version of the Bible re­ vised In the late nineteenth-century reads, "And if a man lie with a beast, he shall surely be put to death: and ye shall slay the beast." The Holy Bible, Vol. I: Genesis to Ruth (Oxford: The University Press, 1885), p. 2?4. Hereafter cited as Bible.

^Haskins, Law and Authority, p. 153. See also. Laws and Liberties, p. 23.

^Dow, Every Day Life, p. 200. See also, William H. Whitmore, ed., A Bibliographical Sketch of the Laws of the Massachusetts Colony From 1630 to 1 6 8 6 In which are included the Body of Liberties of l64l and the Records Of The Court Of Assistants, I64l-l644 (Boston: Rockwell and Churchill, ÏÔ90), pp. 29-68. %ese pages are The Body Of Liberties In facsimile from the Hutchinson Manuscript. Hereafter cited as, A Bibliographical Sketch.

85 86 ^®Hasl£lns, Law and Authority, p. 14?. See also Laws and Liberties, p. 5. "If any man LYETH WITH MANKINDS as he lleth with a woman, both of them have committed abomination, they both shal surely be put to death: unies the one partie were forced (or be under fourteen years of age in which case he shall be seveerly punished." See Chapter Seven for further discussion.

^^Ibid.. pp. 137-38.

Ibid.. p. 150. Ag about rape of an adult or a child. See, Chapter One.

^^Ibid.. pp. 150-51.

^^John Wlnthrop, The History of New England, Vol. I (Boston: Little Brown & Company, 1853), p. 73. See also, Dow, Every Day Life, p. 2ll. The case of the young woman marrying out of spite will be covered in the chapter dealing with adultery.

^^Suffolk County. Vol. 29, p. Ixxvii.

^^Ibid. See also Morgan, Family, p. l6.

^^Suffolk County. Vol. 29, p. Ixxxvii. See also, Ola Winslow, Meetinghouse Hill: 1630-1783 (New York: The MacMillan Company, 1952), p. 175.

^^Haskins, Law and Authority, pp. 88-89. Winslow, Meetinghouse Hill, p. 175.

^^Winslow, Meetinghouse Hill, pp. 175-76.

^^Ibid.. pp. 191-92.

F. Allen, 1 6 9 9 )» pp. 6 1 -6 2. This is a microprint version available in Clifford K. Shipton, ed., Early American 87 Reprints 1 6 3 9 -1 8 OO (Worcester, Massachusettss American Antiquarian Society, n.d,), Evans number 8 5 7, Hereafter cited as, Mather, "Pillars." For convenience, the colonial "s" has been modernized.

^^Mather,, "Pillars," pp. 62-6 3.

^■^Ibid., p. 43.

^^Ibld., p. 5 9 .

^^Ibld., pp., 52-58.

^°Ibld.. pp., 1 0 0 -0 1 .

^^Ibld., pp.. 42-43.

pp., 69-70.

^^Morgan,, Family, pp,. 138-39.

^^Oberholzer, Delinquent Saints, pp. 150-51.

^^Ibld., pp., 128-29. There will be more speculations on this In later chapters.

^^Ibld., p. 135» In using Greek (a language Icnown only by scholars) It was as though these Puritans were trying to remove the crime to as remote a place In their consciousness as possible. They wanted the confession but not the sordid details— at least In this Instance. Cotton Mather certainly provided details, but he should not be viewed as a typical Puritan; even for them, he thought, wrote, and talked too much.

1 3 9 . Even If the couple did not marry. If confessed. the (

^^Ibld., p., 140

^^Ibld., p., 136

^°Ibld., p., 133

^^Ibld., p.' 137 ^~^^Ibld.. p. 1 2 7 , See the chapter on adultery and pre­ marital sex for a specific discussion on definitions.

Vol. I, p. 3 0 9 .

^^Oberholzer, Delinquent Saints, p. l43.

^% b i d .. pp. 142-43.

^^Ibid.. p. 113. For a more detailed discussion on incest and the extended family system of the Puritans see, Chapter Seven.

^"^Ibid.. p. 149.

^^Ibld., pp. 149-50. The Good case is further described in Chapter Seven.

^^Ibid.. p. l42. Chapter Eight discusses prostitution and the secular aspects of its punishment.

^°Ibid.. p. 129.

129-30.

52p^Parkes, "Morals," 443.

^^Ibid.. 503.

^^Ibid.. 502. Here, Adams might have drawn on contemporary accounts of revival meetings. These meetings had a. reputation for exciting the spectators in ways different from the participators' involvement.

^^Ibid., 501. Adams' qualifications of some of Edwards' terminology has already been noted which make these acts even less offensive. This shows the extent to which guilt for even harmless pursuits could be instilled in the Puritans. 89

■^^Howard, Vol, II, pp. 195-99.

^^Henry B, Parkes, "Sexual Morals and the Great Awakening," The New England Quarterly. Ill (January, 1930), 133-35. Hereafter cited as Parkes, "The Great Awakening."

^^Ibid., 133-34. Parkes dispatches the clergyman by saying, "The reverend gentleman, knowing that he would not have to defent his statements, allowed his epigrammatic exuberance to overwhelm his respect for the truth." Chapter Foun Puritans and the Secular Causes of Immorality

The Ideas of Early Leaders— Bradford and Winthrop

In the Puritan colonies of Plymouth and Massachusetts

Bay, the leaders worried about the secular causes of

immorality and sexual license. These worries are best

vivified in the writings of William Bradford and John

Winthrop. In his History of Plymouth Plantation Bradford devotes several pages to analyzing what he saw as an appalling rise in immorality. His analysis is not without

value for the historian. It is not surprising to find that

Bradford was amazed that sexual transgressions would occur among people bent upon a holy mission and among people who

kept such a close watch upon each other:

Marvilous it may be to see and consider how some kind of wickednes did grow and breake forth here, in a land wher the same was so much witnesed against, and so narowly looked unto, and severly punished when it was knowne; as in no place more, or so much, that I have known or heard of; insomuch as they have been somewhat censured, even by moderate and good men, for their severite in punishments. And yet all this could not suppress the breaking out of sundrie notorious sins, (as this year, besids other, gives us too many sad presidents and instances.) espetially drunkenness and unclainnes; not only incontinencie betweene persons unmaried, for which many both men and women have been punished sharply enough, but some marled persons allso. But that which is worse, even sodomie and bugerie, (things fearfull to name,) have broak forth in this land, oftener then once.l 90 91 Despite his amazement and shock at the outbreak of this "crime wave," Bradford plunged forward with a sad analysis as to why some in the colony had fallen to such evil ways* I say It may justly be marveled at, and cause us to fear and tremble at the consideration of our corrupte natures, which are so hardly bridled, subdued, and mortified; nay, cannot by any other means but the powerfull worke and grace of Gods spirite. But (besids this) one reason may be, that the Divell may carrie a greater spite against the churches of Christ and the gospell hear, by how much the more they indeaour to preserve holynes and puritie amongst them, and strictly punisheth the contrary when it ariseth either in church or comone wealth; that he might cast a blemishe and staine upon them in the eyes of /the/ world, who use to be rash in judgments. I would rather thinke thus, then that Satane hath more power in these heathen lands, as som have thought, then in more Christian nations, espetially over Gods servants in them,2

Bradford was willing to go farther than this explanation which used the devil as an excuse for the sins of the Pilgrims. This was not an unusual explanation; as demon­ strated earlier, Mather sometimes fell back on it when he found himself in an expository corner. But, Bradford was also willing to reason that perhaps the strict laws of the colony themselves led to the outbreak of immorality, and this does surprise the modern reader* An other reason may be, that it may be in this case as it is with waters when their streames are stopped or damned up, when they gett passage they flow with more violence, and make more noys and disturbance, then when they are suffered to rune quietly in their owne chanels. So wickednes being here more stopped by strict laws, and the same more nerly looked unto, so as it cannot rune in a comone road of liberty as it would, and is inclined, it seerches every wher, and at last breaks out wher it getts vente.3 Here, the good governor either lacked the perspicacity to 92

take this analysis and little further and at least sigh for a slight reform (or loosening) among the Pilgrim society,

or he simply saw the above problem as inevitable in a

strict moral community. Finally, Bradford wrote that the watchfulness of the Pilgrims meant more crimes were discovered and reported than would have been in another

society. This gives the historian some clue as to the

effective but crude spy syndrome and atmosphere which must have pervaded colonial Plymouth:

. . . hear (as I am verily persweded) is not more evills in this kind, nor nothing nere so many by proportion, as in other places; but they are here more discovered and seen, and made publick by due serch, inquisition, and due punishment; for the churches looke narrowly to their members, and the magistrates over all, more strictly then in other places. Besids, here the people are but few in comparison of other places, which are full and populous, and lye his, as it were, in a wood or thickett, and many horrible evills by that means are never seen nor knowne; whereas hear, they are, as it were, brought into the light end set in the plaine feeld, or rather on a hill, made conspicuous to the view of all.^

In his analysis of the situation, Bradford managed

to cover a wide variety of reasons for what he saw as a decline into immorality: punishment from the devil; strictness of the laws; and the ever alert vigilance of

the citizens. This shotgun-like approach made up in

breadth what it lacked in preciseness. However, Bradford also described the problems the Pilgrims had with a non-

Puritan, fun-loving, colonist who set up his own society

in what the Puritans considered a dissolute way. Thomas

Morton of Merrymount was not at all approved by the 93 Pilgrims s After this they fell to great licentiousness, and led a dissolute life, powering out themselves into all profanenes. And Morton became lord of misrule, and maintained (as it were) a school of Athisme, . . . and gott much by trading with the Indeans, they spent it as veinly, in quaffing and drinking both wine and strong waters in great excess .... They allso set up a May-pole drinking and dancing aboute it many days together, inviting the Indean women, for their consorts, dancing and frisking togither, (like so many fairies, or furies rather,) and worse practices. As if they had anew revived and celebratted the feasts of the Roman Goddes Flora, or the beastly practices of the madd Bacchinalians. Morton likewise (to shew his poetrye) composed sundry rimes and verses, some tending to lasciviousnes, and others to the detraction and scandall of some persons, which he affixed to idle or idoll May-polle.5 Although they did not have to put up with this type of disturbing activity, the Pilgrims' neighbors and spiritual cousins in Massachusetts were also beset by crimes of immorality. As in Plymouth, the chief leader of Massachu­ setts Bay also attempted to analyze the reasons for the outbreak of immorality in his colony. In his analysis John Winthrop strikes a more modern note than William Bradford as he links an increasing population with an increase in crime. Winthrop also gives an example so his readers will know what type of crime concerns him: As people increased, so sin abounded, and especially the sin of uncleanness, and still the providence of God found them out. One . . . Hackett, a servant in Salem, about l8 or 20 years of age, was found in buggery with a cow, upon the Lord's day. He was discovered by a woman, who being detained from the public assembly by some infirmity that day and by occasion looking out her window, espied him in the very act; but being affrighted at it, and dwelling alone, she durst not call to him, but at night made 94

It known, so as he was apprehended, and brought before the magistrate, to whom he confessed the attempt and some entrance, but denied the completing of the fact,®

From this quotation, the historian can gain (in rather a milder version) the idea that the spy syndrome was not confined to Plymouth, Massachusetts neighbors also kept an eye on one another although in this case, it must be admitted that attempting intercourse with a cow in the daylight of outdoors would be a scene hard to overlook.

There is also the hint in the description of this episode of the rather lame excuses with which violators would try to escape the full extent of the law and the wrath of their

Puritan neighbors. The attempting of the act would be admitted but its completion or fulfillment denied.

Historians* Comments

Modern commentators on colonial life have for the most part ignored the sexual indiscretions of the Puritans in

New England, When historians do discuss this aspect of social life they usually either condemn the early New

England colonists as hypocrites, or they attempt a sorry defense of the Puritans, All quite similar to the argument over the Great Awakening and its impact on the morals of New

England colonists, James T, Adams finds that the Puritans had a "morbid interest" in sex. He finds items in Winthrop*s and Bradford's histories and in some colonial records to be appropriate only for medical textbooks,^ Of course, this 95 opinion says much about Adams* personal ideas on sex. In a later study, Adams contradicts the above comments by saying that an objective study of Puritan sexual standards is not possible because of a lack of information— a, "deliberate exclusion from printed records of entries bearing on the topic . , , Nevertheless, Adams plunges ahead with a value judgment about Puritan morality, "The standard of sexual morality among the unmarried youth was loxver in Puritan New England than it is today /l92^7 for both sexes." Adams believed that a low standard of morality existed because the Puritans denied people an outlet for recreation (shades of Governor Bradford?). He cites laws of Connecti­ cut and Massachusetts which forbade walking, swimming, or meeting on the Sabbath.® Adams did not offer much evidence to back his opinions, and his attack on Puritan morality quickly drew fire from Samuel Eliot Morison. But, Morison was almost as shaky in his defense of the Puritans as Adams was in his prosecution. Morison took special interest with Adams' charge of "morbid interest" in sexual matters. To Morison*s way of thinking, Puritan discussion about the sexual aspects of life is merely a frank interest in life. However, even Morison cannot escape a condescending attitude which he reveals when he describes Winthrop as not morbid or obscene but natural and coarse like Shakespeare!^ Morison finds Bradford's explanations for the outbreak of sexual offenses 96 to have more common sense than those of Winthrop, In particular, Morison finds that Puritan standards were too high: The Puritan standard of sexual morality was too high for the meaner sort of people. Early marriage and frequent childbearing was a healthy outlet for the independent yeoman and gentry ; but the indentured servants, who caused almost all the trouble, were recruited from brutish elements of a coarse age. Forbidden marriage while serving their time, and forced to heavy labor in the fields, they found an outlet where they could. Precisely the same sort of trouble occurred with the indentured servants in Virginia, and for the same reason,10 Henry Bramford Partes agrees with Morison that the moral standards of New England were high. Considering this high standard. Partes reasons that offenses were rare, and that the laws were generally obeyed because the people supported them. Partes does believe that laws without "religious justification" were defied.Some of Partes* assertions might be questioned, particularly that the offense of adultery infrequently appears in the record, but the record does bear out his declaration that prostitution was rare or at least rarely mentioned.Partes also mates the assump­ tion that the educated classes in New England were free from immorality. He bases this view on the premise that, "It is

difficult to find more than five clergymen between 1630 and the Revolution who were guilty of anything more serious than improprieties of speech . . . ." This evidence speats for itself ; it is of limited nature, and it is quite difficult to determine from court cases the level of education among 97 those before the court. Almost in the same breath, Parkes is forced to modify his generalization about the educated being free from immorality because he has evidence of prominent, educated colonists standing as defendants in bastardy cases in the eighteenth-century.^^ Continuing with this line of argument, Parkes notes that the morals of Essex County are particularly low, and he places the blaem for this disreputable situation on the fact that Essex County was a maritime area, and the morals of the seamen and others who live in such a district were not on a par with their more respectable inland brethren. Chard Smith describes a decline in Puritan morality at the end of the seventeenth-century. The 'pious* attacked this immorality and blamed it on several causes including, "immodest dress, 'Laying out of hair'— that is ornate wigs, 'Borders, naked Neck and Arms, or which is: more abominable, naked Breasts,' 'mixed Dancings, light behavior and expressions. Sinful Company-keeping with light and vain persons, unlawful Gaming, eind abundance of Idleness . . . .'" None of these reasons sound too quaint to modern worriers about moralit; indeed, some are given almost verbatim to explain today's supposed low level of sexual morality. Smith writes of, "an increase in insolence and naughtiness at Harvard," He also quotes Increase Mather who in 1677 warned, "People are readdy to run wild into che woods again and be as Heathenish as ever, if you do not prevent it.' 98

The Servant Problem

In searching for those upon whom to pin the blame it is natural to pick outsiders. Even a modern historian such as Parkes uses sailors as examples of those with particularly low morals, Parkes also brings in servants (in their own way also outsiders) for an amount of opprobrium. He notes that between 1/5 and 1/6 of all the immigrants to New England belonged to the servant class. Some were Puritan, but most made the voyage because of a chance to better their economic situation, According to Parkes, this class of people caused the Saints trouble with fornication as well as other crimes,After the servants were free to join the general population, they appear to have contributed to a lowering of the religious and moral tone of the colony, Edmund Morgan corroborates Parkes to some extent and finds that it must have been relatively easy for servants to indulge in sexual dalliance with one another. One black servant in l682 confessed that several times at night he broke into another house to keep company with the black maid— they used the garrett. Another servant was luckier as far as entry was concerned. He used a ladder to climb to a window obligingly left open by the servant girl he wished to visit. If the weather was nice the servants discovered that breaking and entering and ladders could be dispensed with, "Radhel Smith was seduced in an open field, by a man whom she did not even know, who 'gave her strong liquors, and told her 99

that it was not the first time he had been with maydes

after his master was in bed,'" There were also those for-

tunates who discovered that love could run its course without necessitating leaving the master's house, "Frequently

men and women servants slept in the same room; and since it

seems to have been the custom to sleep without nightclothes,

temptation was always at hand. Many love affairs between

servants must have had their consummation in a crowded

bedroom, even on a bed in which other people were

sleeping,Morgan provides a contemporary picture from

the files of the Middlesex County Court«

'Benjamin Chamberlane aged about 2i years doth testifie that on the 30th of September last, Joseph Graves was at the house of Thomas Goble in concord, in the night time, and tarrying there after the said Thomas Goble was in bed, who lay in the same roome, and also two mayds in another bed, viz: Ester Necholls and Mary Goble, the said Joseph Graves went and set up by the bedside and talked with them privately and after that sung some short songs to them, and after a while I saw the said Joseph Graves in bed with them— the cloathes were over him. The said mayd as he apprehends being in their naked beds , . , , 19

0 Tempore ! 0 Mores !

Of course, if children were conceived because of these amorous ventures, the servant found his indentured time

became longer. Since the servant would have to support an

illegitimate child, and since the master would have to foot the bills for this support, the servant would have to work for a longer period in order to repay the master. This situation could rebound to the benefit of the master because 100 the upkeep for the child was not great (3 shillings a week), and because labor was expensive; the child would be indented to the master at an early age. The master would then receive the child's services until the age of twenty-one. "The Essex Court recorded on November 6, l6?8p that 'Richard Woolery being the reputed father of the child

Abigail Morse, the child Hanah Woolery, being now two years and seven weeks old, was bound to Joseph Pike until twenty- one years of age. Said Woolery was discharged from paying any more.'

The master was not as lucky if he attempted to force attentions on a non-compliant servant girl. Severe punishment could and was meted out in such cases. For example, John Harris and son Joseph received twenty stripes and imprisonment when a maid complained to Middlesex authorities that they attempted to compromise her chas­ tity. Indeed, in cases such as this the courts would be more apt to side with the servant because of the master's great power over a servant's life and the strength of conviction it must have taken to bring charges against one's master. At least this is what Morgan concludes, and he cites the Middlesex County Court case of Sarah Lapingwell to support his argument. Sarah alleged that Thomas Hawes, brother of her master, raped her and that she did not cry for help because she, 'was posesed with fear of my master least my master shold think I did it only to bring a scandall on his brother and thinking they wold all beare witnes agaynst 101 The family did testify against her, but the

it is hard to discern the classes of the participants, it does appear that Morgan's thesis about servants receiving legal protection is substantially correct.

The Puritans then did have social ideas concerning sex crimes. Not all was ascribed to religious failings (at least not as a cause by itself), and even when the Puritans felt that outsiders impeached their morality, they would deal harshly with saints who took advantage of that impeachment. But, an historian receives the impression that the grasp the Puritans had on the secular causes of immorality was tenuous at the very best. Most of their time was taken with the very practical concerns of stemming outbreaks of sexual crime— this meant seeking evidence that such a crime occurred, finding the guilty party or parties, and then passing judgment on the sinners.

The next chapters will concern specific cimres and their punishments, Notes: Chapter Four

William Bradford, Bradford's History of Plymouth Plantation; l606-l646, ed. by William T, Davis (New York: Barnes & Noble, Inc., 1946), p. 364.

^Ibid., pp. 364-65.

^Ibid.. pp. 237-38. Morton proved a persistent thorn in the Pilgrim side and even after a comical confrontation ousted him, he was back in the New World after a stay in England in which he loudly proclaimed the tyranny of the Pilgrims. In fact, he was probably a more serious politi­ cal than moral problem for the colonists of Plymouth.

^Winthrop, Vol. II, p. 5 8. In Chaoter Eight the ideas of the Pynchon Court concerning the spread of immorality will be examined as part of the penultimate remarks of this dissertation.

The Atlantic Monthly Press, 1921), p. 265. Hereafter cited as, J. Adams, Founding.

^James T. Adams, Revolutionary New England 1691-1776 (Boston: Little Brown and Company, 1923)» PP. 38-39. Hereafter cited as, J. Adams, Bevolutionary. Adams was wrong about the sources ; there are a plentiful amount of colonial documents legal and otherwise on sex crimes and moral habits.

^Samuel E. Morison, Builders of the Bay Colony (Boston: Houghton Mifflin Company, 1930), p. 100.

102 103

452 and 449.

12 Ibid.. 445.

^Ibld., 445-46. Along this line it might be noted that the first case in the Maine court records was of a sexual nature involving a prominent colonist.

^^Ibid.. 431-32.

Hermitage House, 1954), p. 192.

^^Parkes, "Morals, 435-46.

^^Ibid.. 4 3 6-3 7.

^^Morgan. Family. pp. 1 2 9 -3 0

^^Ibid.. p. 1 2 9 .

^°Ibid.. p. 1 3 1 .

^^Ibid.. p. 115.

^^Ibid. Chapter Fives Crimes of Adultery and Pre-Marital Sex

The Crime of Adultery— Laws

Despite Puritan attempts to regulate marriage, as well as engagement and divorce— adultery, sex by married people away from their marriage beds, was a large concern to the Puritans, This activity violated the moral beliefs of the Puritans as well as their laws. The l64l codification, the "Body of Liberties," stated, "If any person committeth Adultery with a maried or espoused wife, the Adulterer and Adulteresse shall surely be put to death," The l648 codi­ fication, the "Laws And Liberties," read, "If any person commit ADULTERIE with a married, or espoused wife ; the Adulterer and Adulteresse shal surely be put to death," These almost identical capital laws derived their biblical authority from Leviticus 20,19 and l8,20 and Deuteronomy

22; 2 3,2 7,' Violations of these laws took up much court time in Puritan New England, Pre-marital sex was also a matter to furrow the brows of Puritan divines and politi­ cians ,

The Ideas of John Winthrop

In his history of the early years of the Massachusetts 104 105

Bay colony John Winthrop devotes a number of pages to

sexual offenses— specific acts and their punishments. In

doing this he reveals some Puritan ideas concerning these

specifics. i\t the early trials, it is possible to see the

Puritans' regard for proof. Evidence was needed to demon­

strate that a crime had actually happened. Even when

dealing with explosive situations such as a sex crime, the

Puritans were not willing to leap to conclusions:

Capt, John Stone , , , carried himself very dissolutely in drawing company to drink, etc,, and being found upon the bed in the night with one Barcroft's wife, he was brought before the governor, etc, and though it appeared he was in drink, and not act to be proved, yet it was thought fit he should abide his trial, for which //end// warrant was sent out to stay his pinnance, which was ready to set sail; whereupon he went to Mr, Ludlow, one of the assistants, and used //braving// and threatening speeches against him, for which he raised some company and apprehended him, and brought him to the governour, who put him in irons, and kept a guard upon him till the court , , , , At the court his indictment was framed for adultery, but found ignoramus by the great jury ,.,,2

After his harsh treatment. Captain Stone no doubt did not appreciate the legal niceties which present day historians

can marvel over, but the point is even in the most compro­ mising of circumstances, the Puritans refused to convict

because of the ambiguities of the situation.

The above description was recorded by John Winthrop who also told of another sea captain troublesome to the

Puritans— a Captain Underhill who swung in and out of

Massachusetts courts like a stray cat in a revolving door. 106 Underhill was also seen in rather suspicious circumstances and proved to be rather a fanciful alibier. Winthrop records several of Underhill's brushes with Puritan author­

ities. For 1 6 3 8, Winthrop noted;

, . . Capt, Underhill, having been privately dealt with upon suspicion of incontinency with a neighbor's wife, and not hearkening to it, was publicly questioned, and put under admonistion. The matter was, for that the woman being young, and beautiful, and withal of a jovial spirit and behavior, he did daily frequent her house, and was divers times found there alone with her, the door being locked on the inside. He con­ fessed it was ill, because it had an appearance of evil in it; but his excuse was, that the woman was in great trouble of mind, and sore temptations, and that he restored to her to comfort her; and that when the door was found locked upon them, they were in private prayer together.3 The next years, Underhill having been banished for his activities and, "being struck with horror and remorse for his offences, both against the church and civil state" asked for permission to return and give satisfaction to the authorities. Underhill confessed to adultery and attempted adultery and recognized the justice of the punishment he received.^ Unfortunately, Underhill discov­ ered that the authorities' hearts were not melted by his penitent attitude ; yet, other circumstances intervened, "But for his adultery they //would// not pardon that for example's sake, nor would they restore him to freedom, though they released his banishment, and declared the former law against adultery to be of no force; so there was no law now to touch his life, for the new law against adultery was 107 made since his fact committed. The cases of the two sea captains might seem to prove the contentions that outsiders caused most of the Puritan problems as far as moral infractions were concerned. This is refuted by a particularly vivid case recounted by Governor Winthrop. The viper of sin could be found in the holiest and most unlikely of homes : Mr. Stephen Batchellor, the pastor of the church at Hampton, who had suffered much at the hands of the bishops in England, being about 80 years of age, and having a lusty, comely woman to his wife, did solicit the chastity of his neighbor's wife, who acquainted her husband therewith; where upon he was dealt with, but denied it, as he had told the woman he would do, and complained to the magistrates against the woman and her husband for slandering him. The church likewise dealing with him, he stiffly denied it, but soon after, when the Lord's supper was to be admini­ stered, he did voluntarily confess the attempt, and that he did intend to have defiled her, if she would have consented. The church being moved with his free confession and tears, silently forgave him, and communicated with him; but after finding how scandalous it was, they took advice of other elders, and after long debate and much pleading and standing upon the church's forgiving and being reconciled to him in communicating with him after he had confessed it, they proceeded to cast him out.°

This ancient minister was treated relatively leniently as were most Puritan and non-Puritan offenders in colonial

New England. However, sometimes the authorities would choose to make an example. When this occurred the prospects were not pleasant for the defendants. In 16M-3 the victims of capital punishment were, "one James Britton, a man ill affected both to our church discipline and civil government. 108

and one Mary Latham, a //proper// young woman about l8 years

of age, whose father was a godly man and had brought her up

well . . . . According to Winthrop, the girl was rejected

by a man whom she loved and on the rebound promised to

marry the next man who asked her. As luck would have it,

this proved to be "an ancient man who had neither honesty

nor ability, and one whom she had no affection unto."

After this ill-starred marriage took place, the wife proved

to be of easy virtue, no doubt as a refuge from her dissatis­

faction with life. One of her lovers was James Britton.^

Britton came down with what Winthrop described as a "deadly

palsy" and a guilty conscience. Going against his previous

philosophy ("having often called others fools, etc., for

confessing against themselves"), Britton confessed to his

crimes. Although Mary Lathsim was living in Plymouth, a magistrate there sent her back into Massachusetts. Latham admitted the circumstances described by witnesses through

Winthrop, "that in the evening of a day of humiliation

through the country for England, etc., a company met at

Britton's and there continued drinking sack, etc. till late

in the night, and then Britton and the woman were seen upon

the ground together, a little from the house," However,

Latham said the attempt was not completed, and that

therefore she was not guilty of a capital offense.

Unfortunately for her image, Winthrop reports, "that she did frequently abuse her husband, setting a knife to his breast 109 threatening to kill him, calling him old rogue and cuckold, and said she would make him wear horns as big as a bull,"® There was some question during the trial of Britton and Mary Latham because the magistrates did not have the two direct witnesses needed in dealing with crimes of a capital nature. But, the two were still found guilty by the jury, and Mary Latham then confessed her guilt. She also named twelve others with whom she had consorted. Two of these men were married. The authorities apprehended five, but the others had left the colony. Since there were no witnesses for the other alleged acts except for the testi­ mony of the condemned Mary Latham, the men were let go.^

Both James Britton and Mary Latham were condemned to execu­ tion although there was some dispute among the magistrates about this punishment: The woman proved very penitent, and had deep apprehension of the foulness of her sin, and at length attained to hope of pardon by the blood of Christ, and was willing to die in satisfaction to justice. The man was also very much cast down for his sins, but was loth to die, and petitioned the general court for his life, but they would not grant it, though some of the magistrates spake much for it, and questioned the letter, whether adultery was death by God's law n o w .10 Winthrop reports that both died "penitently," and that Mary

Latham exhorted, "all young maids to be obedient to their parents, and to take heed of evil company, etc."'^'^ Another case more confusing them the Britton-Latham one was also described by Winthrop. This situation involved murder as well as adultery so it is easier to understand why 110

it led to executions. But as Winthrop describes it, it is

clear that the evidence in this case was not very substan­

tial— note that even a medieval method of discerning the

truth was attempted:

One Cornish, dwelling some time in Weymouth, removed to Acomenticus, for more outward accommo­ dation, and in the . . . month last was taken up in the river, his head bruised, and a pole sticking in his side, and his canoe laden with clay found sunk. His wife (being a lewd woman, and suspected to have Fellowship with one Footman) coming to her husband, he bled abundantly, so he did also when Footman was brought to him; but no evidence could be found against him. Then something was discuvered against the son of Mr. Hull, their minister, and the woman was arraigned before the mayor, Mr. Roger Garde, and others of the province of Maine, and strong presumptions came in against her, whereupon she was condemned ane executed. She persisted in the denial of the murder to the death but confessed to have lived in adultery with divers.

Winthrop does not actually say there was proof against the woman other than the fact that the body bled when approached

by the supposed culprit, but the body bled also when Footman

walked to it; yet, he was not punished because of the lack

of evidence. A fair assumption can be made that the

"presumptions" brought against the wife consisted of less

than hard evidence, and that her execution was brought on

by her confessions of adultery and her reputation as a lewd

woman at least as much as by the evidence that she abetted

the commission of murder. The Puritan scrupulousness

concerning proof in cases of capital crimes varied with the

circumstances of the crime and the reputations of the victims and the alleged guilty parties. Ill

Winthrop reports a case where a distinction was made

between adultery and adulterous behavior. This somewhat

fine, arbitrary line was drawn because of the circumstances

of the case and the defense of the supposed guilty parties.

The circumstances were common enough in early New England;

a Boston church member was in England "in the parliament

service" and left the care of his family to another

gentleman of his household and of the same church. This

other man was of good character described by Winthrop as,

"a young man of good esteem for piety and sincerity,"

Unfortunately, this man's wife was also in England,

Apparently the long absence from conjugal pleasures proved

too much for the spouses left in Massachusetts because

the young man as Winthrop reports it, "in time grew over

familiar with his master's wife, (a young woman no member

of the church,) so as she would be with him off in his

chamber, etc," Activities of this sort, in a household

of any size were bound to be seen and sure enough, one night

two of the other servants spotted the errant caretaker go

into the mistress' bedroom. The two servants must have

shared their information because it came to the magistrate's

attention. The servants were then examined. However, this

process did take some time (about "a quarter of a year").

According to Winthrop, the master was home when the

situation was aired. The wife confessed that the man was

in her bedroom and even that he was in bed with her. But, 112

the wife and the servant-caretaker denied "any carnal knowledge." There was a trial for adultery, but because of the lack of actual eyewitnesses and because of the death penalty the jury refused to find them guilty of adultery, "and being tried by a jury upon their lives by our law, which makes adultery death, the jury acquitted them of adultery, but found them guilty of adulterous behavior.

Evidence and Circumstances

This case causes Winthrop to go into a lengthy but useful discourse about evidence and the distinction between adultery and adulterous behavior; This was much against the minds of many, both of the magistrates and elders, who judged them worthy of death; but the jury attending what was spoken by others of the magistrates, 1. that seeing the main evidence against them was their own confession of being in bed together, the whole confession must be taken, and not a part of it; 2. the law requires two witnesses, but here was no witness at all, for although circumstances may amount to a testimony against the person, where the fact is evident, yet it is otherwise where no fact is apparent; 3. all that the evidence could evince was but suspicion of adultery, but neither God's law nor ours doth make suspicion of adultery (though never so strong) to be death ; whereupon the case seeming doubtful to the jury, they judged it safest in case of life to find as they did. So the court adjudged them to stand upon the ladder at the place of execution with halters about their necks one hour, and then to be whipped, or each of them to pay 20 pounds. Winthrop gives the historian a good description as to how circumstances and the standing of the defendants (note 113

his distinctions about the man and the woman) could affect

the outcome of a trial. This is also an example of a

respected Puritan authority writing on the reluctance of

the Puritans to take life from one of their peers— though

note it was some of the legal officers and elders who

wished for executions. In this case with Winthrop's

background remarks, one can appreciate the psychological

effects on both the accused and the rest of the community

of the ritual punishment of a symbolic execution.

It was not unusual for trouble to occur when parents

or guardians returned to England, leaving their children

in the colony under the protection of others. As far as

sexual indiscretions and crimes are concerned, these

situations were almost analogous to those where spouses

were separated. Again Winthrop serves as a source,

providing the researcher with the background of such a

case, but, one dealing with fornication and not adultery.

Martin, a merchant from Plymouth, England, settled in the

Casco Bay region of Massachusetts. He was called back to

the mother country leaving two daughters, "very proper

maidens and of modest behavior . . . . The father did not

take the proper safeguards for his daughters' upbringing

in his absence and the oldest girl was seduced by a, "Mr.

Mitton, a married man of Casco . . , The girl then

moved to Boston and entered the service of Mrs. Bourne.

She discovered the girl to be pregnant, "and not able to u p ­ bear the shame of it, she concealed it, and though divers did suspect it, and some told her mistress their fears, yet her behavior was so modest, and so faithful she was in her service, as her mistress would not give ear to any such report but blamed such as told her of it," The girl SLrffered through birth by herself and after several attempts finally succeeded in killing the baby. The body was hidden in a chest, and the crime remained undiscovered until a suspicious midwife who formerly had thought the girl pregnant investigated and found that a recent birth had occurred, (This statement alone should give cause to wonder as to the rights of privacy in Puritan New England,) The body was then discovered and bled when the mother touched its face. The girl then confessed the infanticide and admitted to another liason as well, Winthrop notes that before her death she behaved quite penitently but also sees some divine justice in her execution: She confessed, that the first and second time she committed fornication, she prayed for pardon, and promised to commit it no more ; and the third time she prayed God, that if she did fall into it again, he would make her an example, and therein she justified God, as she did in the rest. Yet all the comfort God would afford her, was only trust (as she said) in his mercy through Christ, After she was turned off and had hung a space she spake, and asked what they did mean to do. Then some stepped up, and turned the knot of the rope backward, and then she soon died,15 An eye for an eye was Winthrop*s moral in reciting this little piece of lore for his reader. As it took the woman several attempts to kill the child, God punished her by 115 making her execution a prolonged agony before the end finally came, Another unfortunate woman, caught with an illegitimate child as a consequence of adultery did not prove so penitent, much to Cotton Mather's outrage:

In the Year, 1 6 9 8, was Executed at Springfield, one Sarah Smith. Her Despising the continual Counsils and Warnings of her Godly Father in law laid the Foundation of her Destruction, Whe she was married, she added unto the Crime of Adultery, that of Stealing; which latter crime occasioned her to fly unto New Jersey, After an attempt at reform, this woman relapsed into adultery and became pregnant. As with the girl in Winthrop's history, she attempted abortion but failed and tried to conceal her pregnancy. She then smothered the infant, and neighbors found the body. As Mather further recounts the facts, "She then owned the matter, but made the usual pretence, that the child was dead born," This woman coufounded the judged and ministers by her continual lying, and she even had the effrontery to sleep during the prayer and sermon at the public gathering on the day of her execution. She did tell the gathering that unchastity, among stealing, lying, and other sins helped cause her downfall,

Adultery and Law in New England

John Winthrop's history of early Massachusetts Bay Il6 provides the historian and reader with the feeling and color that is needed to help flesh out any legal-social topic. But, Winthrop is very unsatisfactory as far as concerns analysis of the law. The Puritans were concerned about the regulation of affairs between the sexes, and the relations between husband and wife were of particular importance to them. Being realistic as well as holy, the

Puritans realized that married people would engage in sexual misbehavior if an opportunity presented itself to those of weak wills. Therefore, the early 1631 law making adultery a capital offense is of no surprise. Adultery by the female was also one of several causes for which the

Court of Assistants granted divorces. Again, as noted earlier, the capital nature of Puritan adultery laws owed to biblical injunctions and to the Puritan belief that the family was the bedrock of society. Even in England, Puritan pamphleteers espoused the death penalty for adultery rather than the fines and penances of the Archdeacon's Court. Winthrop thought it foolish to, 'passe by Murders, Adulteryes, Idolatryes, etc : without Capitall punishments.' Significantly, following Mosaic law, the Puritans in Massachusetts defined the crime of adultery by the matrimonial status of the woman. In England under church law, adultery occurred when either partner in the illicit act was married. The Puritans also differed from the English practice when they extended adultery to 117 include intercourse with a woman engaged but not married. Here, the Puritans based their ideas on Deuteronomy 22;

23 and 24. As quoted earlier in this chapter, the "Body of Liberties" of l64l said, "If any person committeth Adultery with a maried or espoused wife, the Adulterer and Adulteresse shall surely be put to death." Deuteronomy reads, "If a man be found lying with a woman married to an husband, then they shall both of them die, the man that lay with the woman, and the woman: so shalt thou put away the evil from Israel." Also "If there be a damsel that is a virgin betrothed unto an husband, and a man find her in the city, and lie with her; then ye shal stone them with stones they they die ; the damsel because she cried not being in the city; and the man because he hath humbled his neighbour's wife : so thou shalt put away the evil from the midst of thee. Naturally, under Puritan law a woman could forfeit her dower rights (rights to her property given the husband at marriage), if she was divorced because of adultery. Not only in Massachusetts, but in Connecticut and New Haven the death penalty was decreed for adultery. Similar to Massachusetts also, was the fact that these other colonies rarely carried out the extreme dictates of the law. Offenders usually found themselves sentenced to whippings, fines, brandings, and symbolic executions. The letter "A" worn on garments to indicate the sin was also employed as punishmentAlthough he does not indicate the panelty. 118 Winthrop discloses that when Gorton and his group wished

to leave the Bay Colony in 16^3, they had to promise that, "Though fornication and adultery be committed among us, yet we allow it not, but judge it evil, so the same we judge of stealing.

By 1 6 7 3, in Connecticut the brand superseded the death penalty in the laws. This law remained the same even in the

1 769 statute which stated: '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.'22

In his biography of Jared Ingersoil, Lawrence Henry Gipson reveals that in eighteenth-century Connecticut much court time was taken in dealing with crimes of immorality. This Gipson blames on an old argument. Namely, on a failure to understand, "that life demands expression in ways other than the routine of daily material labor . . . According to Gipson, during the years Ingersoll served as Wing's attorney (off and on from 1751 to 1771) dozens of married couples were summoned to court to answer charges of pre-marital sex. The couples usually did not appear and 119 thus forfeited their recognizance bonds. When they did appear, fault was acLcnowledged and a fine paid,^^ To say the least, Gipson finds open court sessions for these people to be quite distasteful* From the present day point of view, there was someting unwholesome, depressing, and reactionary about the whole procedure described above. The notoriety accompanying the judicial proceedings at every stage was such as could hardly do other­ wise than take away the self-respect of penitent young people. This method of dealing with such cases could only lead to whisperings, retaliations, ostracisims, and to an atmosphere of suspicion and community scandal-mongering.^5 No doubt such court spectacles did at times generate disharmony within communities, Unlike Massachusetts Bay, Plymouth Colony apparently never established the death penalty for adultery. The Puritans in Plymouth preferred the "scarlet letter" to the gallows— it was much more psychologically punishing than a swift death. In 1639 a woman who committed adultery was •whipt at a cart tayle• through the streets and also had to, •weare a badge upon her left sleeve during her aboad,• The court declared that if the woman was caught outside without the badge she was to be burned in the face with a hot iron. In l64l Plymouth authorities sentenced a man and woman for adultery. They were whipped at the public post and while in the colony forced to wear the letters ÜD •vpon thereof,' Howard finds the oldest statute stipulating a letter or stigma as punishment for adultery appearing in

1 6 3s, but the practice was in effect well before that time. The 1658 law provided: •That whosoever shall comitt Adultery shal bee severly punished by whiping two severall times; viz: once whiles the Court is in being att , which they are convicted of the fact and 2 time as the Court shall order; and likewise to weare two Capital letters 2i2; AD cut out in cloth and sewed on their vpermost Garmants on theire arme or backe; and if at anytime they shalbee taken without the said letters whiles they are in the Gov ment soe worn to bee forth with taken and publickly whipt.'^o Although Rhode Island prescribed neither the death penalty nor the scarlet letter for adultery, the transgres­ sion did not go without punishment. Roger Williams and his followers and fellow colonists might have been more tolerant than their Puritan ex-brethren, but they were not about to let immorality run rampant in their colony. The Rhode Island authorities were fond of symbolic execution as well as more corporal punishments. The adulterer was 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. • 2? On the books for many years, the capital law in Massa­ chusetts was seldom fulfilled, but it was a constant threat to the possible sinner. In her biography of Samuel Sewall, Ola Winslow writes that women committing adultery usually received fifteen stripes at the whipping post. By the

1 6 9 0•s in Massachusetts the death penalty for adultery was also eliminated. In 179^ the scarlet letter was substituted 121 for the death penalty in punishing adultery. Also, the offenders were to go through a symbolic hanging and were to be whipped not in excess of forty lashes. The law described the scarlet letter as, 'a capital A, of two inches long and proportionate bigness, cut out in cloth of a contrary color to their cloathes, and sewed upon their upper garments, on the outside of the arm, or in their bade, in open view,' The Massachusetts Bay Puritans had experience with stigma before the late eighteenth-century. In l6?3 a woman adulterer who gave birth to an illegitimate child was punished with public humiliation as well as whipping. Of her, the court decreed; Imposing the said child on her husband Read the Court sentenceth the said Ruth Reed that named herself Rebeckah Rogers if found in this colony two month® after this date that she stands in the market place on a stool for one hour w^" a paper on her breast w^h this inscrip­ tion THUS I STAND FOR MY ADULTEROUS AND WHORISH CARRIAGE and that on a lecture day next after the lecture and then be severely whipt w^h thirty stripes=^9

Engaged Couples and Pre-Marital Sex

As stated earlier in this dissertation, it was the churches meeting as investigative bodies and as courts which handled many cases of pre-marital sex. Despite their hopes, the Puritans found that their marriage regulations did not do away with pre-marital intercourse. Even though the final ceremony had not taken place, these people were 122 considered married by the rest of the populace, "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,"

Couples who had offspring within thirty-two weeks after their marriage could not, however, escape the law. They had to acknowledge their sin in church or a town meeting and pay a fine; the alternative was ten stripes delivered by the constable. If after engagement, according to Howard, a member of the couple had sexual contact with another person, it was considered adultery,

Why punish couples for pre-marital sex if they were treated as married after their engagement? The answer is that the punishment emphasized the social importance of the public ceremony. As stated before, the Puritans were very much dissatisfied with English marriage customs which included the tradition of private unions without any ceremony. Not only did this offend the Puritans in a moral or theological sense, but it also could cause mischief as far as dower and settlements were concerned;

It is absurd to require deeds and important contracts to be written and recorded, and yet allow valuable dower rights and other marital claims to rest on nothing but oral testimony, often fabricated and always liable to injure purchasers who bought land assuming the previous owner to be a bachelor, Massachusetts was one of the first states absolutely requiring a ceremonial marriage (civil or religious). The Puritan performed a permanent service to the Commonwealth by insisting that engagement and wedlock should not be indistinguishably blended but Filmed as received without page(s) 123

UNIVERSITY MICROFILMS. 124 ought to be separated by a definite and public event sanctioned by the presence of an authori­ tative person. Nothing but sharp punishments could have wrenched the Massachusetts settlers out of their lax habits of common law larriages and de facto unions consummated in the comfor­ table belief that a ceremony would follow some day or other. Henceforth no doubts would arise as to what was marriage and what was not, even if there were a good deal of the latter.31

As late as 1795» the authorities were concerned with dubious marriages. In that year, one Mary Palmer fell under the suspicion of having pre-marital sexual relations. Mary protested in a letter that she was validly married ; however, she did admit to having not followed the 'formalities of law.' As she could not reveal the name of the official who presided at her marriage without exposing him to punishment, she refused to divulge his identity. Mary's church was not impressed with her story and declared her to be not a married woman unless she produced the proper documents. She was suspended from membership.By the eighteenth-century, it became more and more common for crimes of pre-marital sex to be handled exclusively by the church. In Suffolk County the churches assumed this function in 1704 and in the rest of eastern Massachusetts in 1737 and 1739. Pre-marital sex crimes disappear from the court records in Hampshire and

Connecticut in the 1750's. The exceptions to this are the cases of unmarried mothers who continued to be fined by the courts.

Besides being treated specially after their engagement, couples who engaged in pre-marital sex found their 125 punishments to be on the whole much less severe than those of unconnected men and women who indulged in fornication. Many times these engaged couples were given a choice between a whipping or paying a fine. This is almost unheard of among cases which do not involve engaged couples. Also it was not unusual for the fines the engaged couple paid to be smaller. The fair conclusion seems, "The courts exercising the discretion granted by the statute, were inclined to deal more leniently with the faults of the betrothed than with those of less favored bachelors and spinsters. For example, compare the punishment of the two cases now cited, both from the Maine records. The first involved a single woman: Wee present Mary Whitte of Kittery, the daughter of John Whitte, for haveing of a bastard. The Court orders Mary Whitte for her offence to have 10 Stripes given her at the post on the 3rd Tuesday next May Insewing, being at the Court at Yorke. This corporal punishment for an unattached girl contrasts with that of an engaged couple : We present Nicholas Smith and Hannah Hodsden, now the wife of sd. Smith for comitting Fornication. Nicholas Smith and Hannah his wife appeared in Court and submitting themselves are sentenced to pay to the use of his Majestie twenty shillings a piece & to pay fees 5s : or to receive five stripes a piece upon the Naked back: & pay fees. The fine and Fees both payd down in Court35 Another mitigating circumstance was the difficulty the courts 126 had in determining whether a child was born prematurely or whether the term started before the marriage. In 1692 in New Haven a child was born after five months of marriage but on the testimony of a midwife the court held it a premature birth and the couple was acquitted, At one time, four churches voted to ask no questions concerning births which took place during the seventh month after the marriage ceremony. In 1748 a minister attempted to Investigate such a case and discovered he could get no help from the congregation— some of whom declared that a seventh month child had never been proof of sin. In 1765 the Groton church voted: ', , , with regard to Baptizing children of parents newly married, that those parents that have not a child till seven yearly months after Marriage are subjects of our Christian Charity, and (if in a judgment of Charity otherwise qualified) shall have the privilege of Baptism for their Infants without being questioned as to their Honesty,'

A 1730 instance found two Middletown couples whose first children arrived "prematurely," The couples claimed innocence and no blame was cast upon them. Later, overcome by guilt they confessed they had lied concerning the births. In his collection of examples of church discipline C.F. Adams even came across the case of a black man coming under disfavor; "March 10, /l722-2j^7 Joseph, a negro man, and Tabitha his wife made a public confession of the sin of fornication, committed each with the other before marriage. 127 and desired to have the ordinance of Baptism administered to them. ' From his gleaning of the church records, Adams presents many instances of church discipline concerning pre-marital sex. An example of one from Braintree,

Massachusetts, in 1 683 reads : 'Temperance, the daughter of Brother F_ now the wife of John B , having been guilty of the sin of Fornication with him that is now her husband, was called forth in the open Congregation, and presented a paper containing a full acknowledgment of her great sin and wickedness,— publickly bewayled her disobedience to parents, pride, unprofitableness under the means of grace, as the cause that might provoke God to punish her with sin, and warning all to take heed of such sins, begging the church’s prayers, that God would humble her, and give a sound repentance...... which confession being read, after some debate, the brethren did generally if not unanimously judge that she ought to be admonished; and accordingly she was solemnly admonished of her great sin, which was spread before her in divers particulars, and charged to search her own heart wayes and to make thorough work in her Repentance, , , . from which she was released by the church vote unanimously on April 11, 1 6 9 8 .'38

Worthington's History of Dedham reports of these church confessions and the rise in instances of immorality; 'The church had ever in this place required of its members guilty of unlawful cohabitation before marriage, a public confession of that crime, before the whole congregation. The offending female stood in the broad aisle beside the partner of her guilt. If they had been married, the declaration of the man was silently assented to by the woman. This had always been a delicate and difficult subject for church discipline. The public confession, if it operated as a corrective, likewise produced merriment with the profane, I have seen no instance of a public confession , , , , In l?8l, the church gave the confessing parties the privilege of making a private confession to the church, in room of a 128 public confession. In Mr. Haven's ministry, (1 7 5 6-1 8 0 3) the number of cases of unlawful cohabitation, increased to an alarming degree. For twenty-five years before l?8l twenty-five cases had been publicly adknowledged before the congregation, and fourteen cases within the last ten years.39 The churches realized that sometimes children might be born prematurely within seven months, and they permitted the parents to make a 'declaration of innocence' on an oath. However, if the parents made a delcaration of innocence and subsequently their child was discovered to be not right­ fully premature, then their offense of fornication would be compounded by that of perjury. A church accepted one declaration of innocence when the child was born five months and six days after marriage. A Mrs. Elizabeth Craig found a sympathetic congregation when she gave birth to a child five months and two weeks after her marriage. The midwife, a nurse, and the doctor testified that an illness had hastened the birth of the child. In another instance a couple was suspended; they refused to declare their inno­ cence, and a midwife declared that the baby did not appear premature at birth. At times churches would also find themselves engaged in adultery cases. In 1770 when a Joseph Loomis confessed to an adultery charge in order to join a church, his membership was further complicated by another revelation. Loomis was charged with another adultery charge— the event taking place in l76o with Loomis conspiring under an alias 129

to seduce the wife of Benjamin Franklin (no relation).

After seven months of deliberation the church agreed that

the charge could not be sustained and voted to admit Loomis

as a member of the church,The notorious Captain Under­

hill appears in yet another church case concerning adultery,

Underhill was accused of adultery with one woman and

attempted adultery with another. The captain's confession

was rejected by the church because it was not humble

enough and contained lies to justify his conduct, Underhill was excommunicated,^^

It is clear that adultery and pre-marital sexual encounters were a problem for the Puritans,The saints sometimes thought they were wallowing in illegitimate children. In seventeenth-century New England the problem

of caring for illegitimate children became so great that a statute was passed to solve the problem, Unfortunately this statute allowed a woman to name almost any man as the father of her child and made it quite difficult for a man to defend himself against this type of charge. The man was required to care for the child which meant the woman was absolved of responsibility and could even name a person other than her lover. The problem was not corrected as the following note makes clear;

•der love; remember my love to your hoping your welfar and; hop to imbras the but now; rit to you to let you nowe that i am a child by you and i wil ether kil it or lay it to an other and you shal have no blame at al for I have had many children and none /of their fathers?? have none 130

Sometimes in cases of illegitimacy, the man was fined so the authorities would have money to care for the child: William Fflint beeing a married man haveing gotten a slutt with child is fined 20l^. Whereof is left to the To une of Salem to bring up the child with, and the other ten pound to the Publique, and to lye in Prison till he pay it, or give security.^5 The sanctions, punishments, laws, excommunications, and humblings the Puritans inflicted, decreed, or enacted proved inadequate in solving the problem. But, even though adultery, pre-marital sex, and other crimes and peccadilloes of seduction and lust were prominent in New England, the colonists found even more alarming cases of crfmes of passion and force such as rape and activities which involved young children. Notes: Chapter Five

^Bibliographical Sketch, p. 55, Laws and Liberties, 6

^Ibld., pp. 3 2 5-2 6.

^Ibld.. p. 3 9 3.

^Wlnthrop, Vol. II, p. 17.

^Ibld.. pp. 53-5^. This Is probably one of the cases counted by Parlces In tabulating how many educated people encountered trouble In court because of sex. However, the ambiguity of Parlces ' statement means he might have over­ looked this case.

Ibid.. pp. 1 9 0-9 1.

^Ibld.. p. 191.

^^Ibld. See also. Bibliographical Sketch, p. XLII for the condemnations of the court.

257-38.

^^Ibld.. p. 3 0 5.

^^Ibld.. p. 3 0 6. See also, Howard, Vol. II, pp. 1 7 6- 77. Howard writes of other cases dealing with seml- adulterous conduct in Massachusetts, and he notes that a 169 4law provided for cases of semi-adulterous behavior when nelgher charge nor sufficient evidence of adultery could be obtained. Howard finds that at the end of the 131 132 seventeenth-century, the courts favored a strict construc­ tion of the adultery statute and gave the defendants the benefits of the doubt. Similar to the case described by Winthrop, Howard discovered later cases where the jury would not convict because the evidence although strongly circum­ stantial, was not sufficiently conclusive.

Vol. II, pp. 3 6 8-7 0. Lack of supervision also caused a crime described by Cotton Mather: About the Year, l646, there was one Mary Martin, whose Father going from hence to England, left her in the House of a Married Man, who yet became so Enamoured on her, that he attempted her Chastity. Such was her Wealcness and Polly, that she yielded unto the Temptations of that miserable man; but yet with such horrible regret of Mind, that begging of God, for Deliverance from her Temptations, her plea was, that if ever she were Overtaken again, she would leave herself unto His Justice, to be made a publick Example.

See, "Pillars of Salt," pp. 6 0-6 1.

^^Mather, "Pillars," pp. 103-05.

^^Haskins, Law and Authority, pp. 8O-8I.

^^Ibid.. pp. 1^9-5 0. Bibliographical Sketch, p. 55. Bible, p. 4 5 7.

^^Haskins, Law and Authority, p. I8I.

^^Morgan, Family, p. 4-1.

^^Lawrence Henry Gipson, Jared Ingersoll (New Haven: Yale University Press, 1920), p. 52. 133

^^Howard, Vol. II, pp. 171-72.

172-73.

The MacMillan Company, 1964), pp. 143-44.

^^Howard, Vol. II, pp. 169-71# and 174. John Noble, ed., Records of the Court of Assistants of the Colony of Massachusetts Bay, 1630-1692, Vol. I (Boston; County of Suffolk:, 1901), p. 10. Hereafter cited as. Court of Assistants, Vol. I.

^^Suffolk County, 7ol. 29, p. Ixxxv. Howard, Vol. II, pp. 1 8 0^81% Note that this statement of Howard inconsistent with adultery being defined in terms of the marital status of the woman. Morgan agrees with Howard. See, Morgan, Family, p. 3 3. These opinions lead the historian to believe that the Puritans themselves were vague or ambiguous about adultery— even in light of their own prohibitions.

^^Suffolk County, Vol. 29, Ixxxvi.

^^Oberholzer, Delinquent Saints, p. 1 1 2.

^^Parkes, "Morals," 442-43. Yet, in the eighteenth- century court punishments for pre-marital fornication can be found, for example this one from York Maine in 1713î Jonadab Lord & Martha his wife being presented to this court for fornication he appearing for himselfe & in behalfe of his wife & owning the fact. Its Considered by the Court that they recieve Seven Stripes a piece on their Naked backs at the post & to pay fees of Court 8s apiece, or to pay a fine to her Majesty of 2 5s apiece & fees as aforesd & stand Committed. See, Neal W, Allen, Jr., ed., Province and Court Records of Maine, Vol. V (Portland; Maine Historical Society, 1964), p. 135» Hereafter cited as. Records of Maine Vol. V.

^^Howard, Vol. II, pp. 1 88-8 9. 134

edltorZi Province and Court Records of Maine, Vol, I (Portland: Maine Historical Society, 1 9 2Ô), p. 2 3 3. Hereafter cited as Records of Maine, Vol, I, Neal W, Allen, Jr., ed,, Province and Court Records of Maine, Vol, IV (Portland: Maine Historical Society, 195Ô), p, ?4, Hereafter cited as. Records of Maine, Vol, IV.

Adams, "Phases," 493, Parlces, "Morals," 444, Maine records also reveal acquittals on fornication charges: Samuel Cole appearing for himselfe & in behalfe of his wife to answer their presentment Exhibited by the Grand Jury at the last Sessions for fornication he denying the fact & shewing Sundry Reasons to the Court to Clear him. Its Considered by the Court that he be acquitted paying fees of Court Seven Shillings a piece & Stand Committed till paid. Presumably, Cole's wife was also acquitted, but note he still had to pay court costs. See, Records of Maine, Vol. IV, pp. 370-71,

^^C, Adams, "Phases," 486, Along racial lines, there are of course some cases of miscegenation in colonial legal records, A York Maine case concerns Black Will, described as a "Mullatto" by the court who was accused of fathering an illegitimate child by Elizabeth Turbut a white woman. After two days in jail he was released on bail thanks to his father, A witness deposition said that Black Will and Elizabeth Turbut had for some time dwelled together in the same house, and that the couple had been seen in bed toget­ her on visits to the house, Elizabeth was ordered whipped ten times and subjected to pay fees of seven shillings or a fine of thirty shillings and fees. Black Will defaulted on his court appearance, and the sheriff was ordered to confiscate property to pay the fine and court costs or to arrest Black Will, See, Records of Maine, Vol. V, pp, 1 6 9- 71 and 1 7 6-7 8, There was also a Suffolk County case in 1672 when a white man was convicted of making a black maid pregnant, "the Court Sentenceth him to bee whip't with twenty Stripes & to pay fees of Court & prison & to give in bond of twenty pound for the good behavior till the next Court of this County," See, Suffolk County, Vol. 29, p, 1 8 5, A similar punishment was given a man convicted of intercourse with an Indian girl. See, Suffolk County, Vol. 2 9, pp, 1 8 3-8 5, When a black maid confessed to fornication with a white man, she received ten lashes or had to pay a fine of forty shillings and also court fees. See, Publications of the Colonial Society of Massachusetts, 135 Records of the Suffolk County Court Part II, Vol. 30 l33 vol.; Boston: Colonial Society at Mass., I8 3 3-6 6), p. 8 0 9. Hereafter cited as Suffolk County, Vol. 30»

Adams, "Phases,” 48l. Here, it can be seen that the Puritans were at least not reluctant to use the word fornication. Again, the details are non-existant and the emphasis on the reasons for the sin and the humbleness of the sinner are great.

^^Quoted in C. Adams, "Phases," 495.

^^Oberholzer, Delinquent Saints, pp. 132-33. Also see. Chapter Three for another brief discussion of these problems.

^^Ibid.. pp. 145-46. Another discussion of adultery and the church may be found in Chapter Three in a slightly different context,

^^Ibid.. p. 143.

^^Parlces, "Morals," 447-48,

^%organ, "Sex," 601-02, The note is quoted from the Middlesex Court files as found in Morgan, Family, p. 1 3 1.

^^John N. Noble, ed., Records of the Court of Assis­ tants of the Colony of Massachusetts Bay 1 6 3 0-I6 9 2, Vol. II {Boston: County of Suffolk, 1904), p. 137. Hereafter cited as. Court of Assitants, Vol. II. Chapter Six; Rape and Child Molestations

English Law and Precedent And Puritan Law

As noted in Chapter One of this dissertation, the

English did have a body of law and precedent to deal with crimes of rape, Blaclcstone who was of course not yet born at the time of the Puritan migration to the New World, provides a very complete background on English criminal codes dealing with rape and their Jewish antecedents. In discussion of rape Blackstone writes, "This, by the Jewish law, was punished with death, in case the damsel was betrothed to another man; and in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel's father, and she was to be the wife of the ravisher all the days of his life, without that power of divorce which was in general permitted by the Mosaic law."^

Concerning the rape of children. Blackstone reverted to the authority of Sir Matthew Hale. Here, it was determined that the taking of an "infant" under the age of twelve (which was the age of female discretion according to common law) either with or without consent amounted to rape. There was some confusion concerning this crime, but generally it was agreed that girls between the ages of ten and twelve were protected,^ 136 137 The Puritans did not clear up the confusion about the rape of young girls, and this led to one of their most spectacular sex cases. There were of course Puritan laws against rape ; the "Laws and Liberties" of l648 read; If any man shal RAVISH any maid or single woma, comitting carnal copulation with her by force, against her own will; that is above the age of ten years he shal be punished either with death, or with some other greivous punishmet aceording to circumstances as the Judges, or General court shal determin.3

Later, under the Laws of War enacted by Massachusetts in

1 6 7 5, "Rapes, Ravishments, Unnatural Abuses and Adultery shall be punished with Death.

The Humphrey Case— Winthrop

The age stipulated by the l648 statute was ten years and the Puritans apparently never dreamed that this age limit would cause such legal wrangling, anguish, and shock. But, quite early in their history they were faced with a rare crime that did not quite fit the English ideas nor their own. Winthrop has given us a complete view of this case and its effects. This year there was discovered a very fool sin, committed by three persons, who the year following came under censure for the same. The case was thus : One Daniel Farfield (an half Dutchman) about forty years of age, and his wife a lusty young woman, dwelling at Salem near a farm of Mr. Humfry (one of the magistrates) who much neglected his children leaving them among a company of rude servants, two of them being young girls (the eldest not seven) came off to this Fairfield's house, and were by him abused very often, especially upon the Lord's days and 1 38

lecture days, by agitation and effusion of seed, and after by entering into the body of the elder, as it seemed ; for upon search she was found to have been forced and this course he continued about two years.

After the girls were put into boarding school the eldest

(by now nine) found she was the attraction of Jenlcin Davis with whom they boarded. Davis' wife was pregnant and,

"scrupulous of having fellowship with her husband in that

condition, he was hurried by the strength of lust to abuse

the elder of these girls." Davis was not able to effect penetration and was so fearful of his actions that he

often asked his wife to take the young Puritan Lolita with her when she left the house. The wife was also asked to have the elders pray for one strongly tempted to sin.-^

To further complicate the situation, this girls also fell in

with one John Hudson and went to bed with him. Even though

she was only about eight years old, Winthrop explains,

"she was grown capable of man's fellowship, and took

pleasure in it.

In court the accused confessed to all except actual

entrance of the body, and the case was referred to the

General Court which had to determine if the crime was rape

or sodomy or of another nature. All the elders of Massa­

chusetts, Plymouth, Connecticut, and New Haven were

consulted and although different answers were received, most agreed that the girl had been raped for even though she

consented, she was too young ("unripe") to know what that 139 consent implied. The elders thought the punishment should be death, but since the Bible and Massachusetts laws were unclear, they left this for the court to decide. The elders further agreed:

. . . that penetration must necessarily be concluded, (if the body of the child be found to have been opened,) though the parties deny it. So also if man and woman be taken in such a manner (as in bed together, or their naked bodies joined, etc.) as in common intendment the act was committed, it is testimony sifficient, for it is not possible to see further. Those of Connecticut and New Haven agreed with the former in point of rape of an unripe girl. Some of the elders of Plimouth concurred with the rest; others, both there, and in the bay, were of different judgment, not thinking it to be capital, (but there were but few of that judgment)."’^

The elders for the most part answered negatively to the question was, "an contactas et fricatio usque ad effusionem seminis sit sodomia morte plectenda?"* They said there had to be an act to make the parties one flesh.^

The help and opinions of the elders was presented to the General Court. There were nine magistrates and much division as to what should be done to meet the justice of case. Winthrop describes :

The foulness of the sin, and their long continuance in it, wrought strongly with many to put them to death, (specially Fairfield;) but after much dispute, (and some remaining doubtful,) the court agreed upon another sentence."

As Winthrop explains, what caused the escape from execution

•“•Contact and rubbing to the effusion of the semen let that constitute sodomy with the death penalty. l40 was that the Puritans could not find, "any express law of God, but to be drawn only by proportion; nor was it made capital by any law of our own, so as we had no warrant to put them to death, and we had formerly refrained (by the advice of the elders) upon the same ground, in a case of manifest adultery, and rape of a child under ? by a boy of about 17. In sentencing Fairfield was condemned to be severely whipped at Boston and Salem and confined to the environs of Boston. One of his nostrils was slit and seared at Boston, while the other was treated in the same manner at Salem. For the rest of his life, Fairfield was to wear a halter around his neck and was to be whipped if seen outside without it. If Fairfield attempted a similar crime, he was to be executed. It was further ordered he pay 40 pounds to Humphrey. Jenlcin Davis also received severe punishment including the wearing of a halter during the pleasure of the court, whipping in Boston and Lynn, being confined to Lynn, and a 40 pound fine to be paid to Humphrey. As in Fairfield's case, if Jenkins attempted another such crime he would be executed.It is clear from this case that although even in this most reprehensible crime the Puritans were not willing to take life because they could not find exact legal or biblical sanctions to do so, they would extract the ultimate punishment if such act were repeated. They also moved to clarify the law. l4l

In the Humphrey case the Puritans saw the working out of the wrath of God. First, the Puritans took literally that from the Old Testament which pointed to every happening as being part of God's will for good or evil. The Puritans were always anxious to know if God approved of their New

Jerusalem and if God thought they were keeping the covenant.

Taking these precepts, Charles Chauncey, a Cambridge scholar and former fellow of Trinity College, attempted to put the

Humphrey case in its proper theological and predictive context. As an explanation for the Humphrey problem,

Chauncey came up with, 'For I the Lord, thy God, am a jealous God, visiting the sins of the fathers upon the children unto the third and fourth generation of them that hate me.'^^ Unfortunately for his peace of mind (that is if he was a conscientious Puritan), Humphrey expressed some negative thoughts about Massachusetts Bay. Winthrop believed

God punished Humphrey for these negative attitudes by making his daughters suffer, "Thus was this family secretly polluted, and brake not out, till Mr. Humfrey had left the country, which he had plotted two or three years before, against the advice of his best friends. Winthrop also described a confused case of rape occurring in l64l which involved a "boy" and a child of "7 or 8 years old." Winthrop says that death was not the appropriate punishment in this case because the perpetrator was a boy and the victim only seven or eight. Yet, as 142

Winthrop analyzes this question, there may be equity by charging the defendant under the terms of another law,

"Yet it may seem by the equity of the law against sodomy, that it should be death for a man to have carnal copulation with a girl so young, as there can be no possibility of generation, for it is against nature as well as sodomy and buggery.Sodomy and buggery were which caused the Puritans much pain.

Rape in the Court Cases

During the early years of the Massachusetts Bay Colony there were instances of rape which were not as spectacular as the Humphrey Case. Although corporal punishment was inflicted for these crimes, there were no executions of the offenders. Even the corporal punishments varied but most were of a severe nature. In a 1636 Quarter Court session a man was whipped thirty times, given a year's imprisonment at hard labor, and forced to wear an iron collar, all for an attempted rape.A 1638 case reveals the court's attempt to handle a situation in which rape was suspected but not proved. Here, the woman was also punished;

John Bickerstaffe was censured to bee severely whiped for comitting fornication w^h Ales Burwoode. Ales Burwoode was censured to bee whiped for yelding to Bikerstaffe w^h out crying out, & concealing it 9 or 10 dayesl5 143 The interesting question is whether or not the woman finally volunteered the information, and whether or not she actually tried to resist or was threatened with physical harm if she did so. The information is incomplete, but it is signifi­ cant that the woman was punished for concealing the crime for some time. Note that specific mention is made that she did not create an uproar at the time of the incident. Obviously, she was under suspicion of having some culpabi­ lity in this matter. The parallels with modern rape cases in this detail are striking. In this 163 8 case the fact that the term fornication and rape is used demonstrates the suspicions of the court as to the circumstances of the crime.

An early l64o's case also reveals punishment for women, although again the exact nature of the crime is unclear: Robert Wyar, & John Garland beeing indited for ravishing two yong girles, the fact confessed by the girles, & the girles both upon search found to have bin defloured, & filthy dalliance con­ fessed by the boyes; the Jury found them, not guilty, wth reference to the Capitall Law. The Cort judged the boyes to bee openly whipped at Boston, the next market day, & againe to bee whipped at Cambridge on the Lecture day, & each of them to pay 5 lb a peece to their master in service. It was also judged that the two girls Sarah Wythes, & Ursula Odle beeing both guilty of that wickedness, shall bee severely whipped at Cambridge in the p^sence of the Secretary.1° The wording of this case indicates a rape, especially the use of the word ravish and the fact that the confession of the boys is emphasized.

In 1 6 3 8 and I639 the Quarter Courts dealt with examples of attempted rape. Besides being subject to the lash and l44 imprisonment, one defendant had to pay his intended victim a fine. In another case the rapist found himself in bondage, John Kempe for filthy uncleane attemp/t/s 3 yong girles was censured to bee whiped both heare, at Roxbury & at Salem very severely & was comitted for a slave to Leis^ Davenport.17 A rare look at the details of a rape case comes in reviewing a trial for rape in a 1650 Maine Court. One Jane Bond, wife of Nicholas Bond, stated that while alone at night with her children in bed she was making a cake ; she started out the door about 12:00 to get some wood, At this time, she discovered the door to be almost off its hinges, Robert Collens then forced himself into the house, and Mrs, Bond called out hoping a neighbor would hear her. After failing to entice her into bed, Collens said, "I will make you heald to me, after much striveing and crying hee forsed hir as shee saith, she sayd put your finger but a littell in the fire you will no be able to Induer it, but I must suffer eternally: you burne in your list , , . Collens then raped her again. At daybreak, he re-hung the door and left. According to Mrs, Bond's testimony, Collens apparently came several other times and either raped or attempted to rape her. After the last time, she finally told her husband although, the court record reveals some confusion as to whether this was the last time for Collens' visits. One of Jane Bond's sons age six testified against Collens, Collens could offer no alibi. The court also received testimony from 145 neighbors who either said they saw or heard something unusual in the vicinity of the Bond house. Other testimony came from a man who talked to the eldest Bond son who told of Collens* attack. Still other testimony came from a neighbor who said she talked with Jane Bond about the attacks. Although Collens was indicted for rape, he was found guilty of incontinency and not of forcing a woman.

This was apparently because of the frequency of his visits,

Collens was punished with thirty-nine lashes and fined ten pounds half of which was to go to the government and half to Nicholas Bond, the husband. The fine to be in goods, work, or security and was to be paid before the next court.

In the Collens case the victim claimed to have cried out, and this fact also played a role in the pending convic­ tion of another rapist. Here the jury used the fact that an outcry was made as partial proof that a rape occurred:

The Jury finde by Evidence the Body of Sarah Lambert defloured by Peter Croy or some other: and the Party defloured affirminge it to be by the said Croy; one Positive Evidence expressinge the beholding accions tending to the same & hearings Sarah Lambert to cry out; with other Circurnstantiall Evidence; w°^ if all almount unto two legall Evidences; or eqivalent thereunto. Then wee finde Peter Croy guilty according to the tenor of this Inditement; But if not not guilty,19

In this Croy case, the procedural papers of the court have been preserved. The first paper is a warrant summoning a jury to examine Sarah Lambert's body. The second ]:aper contains the indictment by the grand jury and the special 146 verdict which is quoted above. The other three papers consist of a statement made by Croy and several depositions.

The final judgment is not preserved.In this case the language of the Indictment malces it clear that because rape was a capital offense, the jury expected there to be two witnesses or pieces of evidence or their equivalents pointing to the guilt of the alleged rapist.

The year I669 saw the ghost of the Humphrey Case raised as the Puritans again wrestled with the problem of sexual assault on a girl under the age of ten. An August, 1669, statute decreeing death for such crime stated;

Fforamuch as Carnall Copulation with a woman child under the age of ten yeares is a more haynous sin then with one of more yeares as beinge more Inhumane & unnaturall in it selfe & also more perilous to the life and welbeinge of the child, It is therefore ordered by this Court & the Authorities thereof, that whosoever he be that shall comitt or have Carnall Copulation with any such child under ten yeares old & be legally Convict thereof, he shalbe put to death. The Deputyes have past this w""^^ refference to the Consent of oi" Honor'd, magists hereto,2l

In October of 1669 the Massachusetts authorities found themselves grappling with the same problem; only this time, they were concerned about a sexual molestation of an eight year old child rather than one ten years old;

, , , what shall be his punishment that hath had Carnall copulation w ™ a child under 8 yeares. The reason of the Question is that I seemeth not to be a lesse offence w'^^ one of 8 yeares then w"kb one above tenn yeares wch the lawe provides for, and in Capitoll Cases when, there is no positive law; the General Court must determine what the law is— the magist^® have past this for their brethern the deputjes 147

The conclusion to this question was, "the deputyes Conceive that such a person ought to be punished with some grevious punishment o^ honn^^ magist®.^^ The puzzling aspect is why in the case of the eight year old there is a statement to the effect that there was no positive law, when in August of 1669 such a statute came in to existence. The legal and philosophical wrangling in 1669 concerning rapes of girls eight and ten years old no doubt stemmed in part if not entirely, from an indictment handed down in July of 1669.

A Patrick Jeanison was indicted and found guilty of, "abusing the body of Grace Roberts named in the Indictment so as he brake or peir/ced7 hir body by uncleane act or actions . . , The trouble was that Grace Roberts was

"The magist^^ Consent to & Concurr w^^ the Jury in the virdict but finding the Crime is Capitol & that the lawe provides only for a Rape of one above te/ ^ 7 yeares & the first law declares for want of law to be refferd & determined by ye Generali Court & ye word of

God— Judg meete to referr the prisoner together w^^ the evidence to the Generali Court," The question was asked,

"whither Carnall copulation w^^ a child under tenn yeares of Age be not , , . as Capital as a Rape on ye body of one above tenn yeares , , , . Apparently the clarification after the Humphrey case did not settle this issue, and even after much muddy discussion, the matter does not appear to 148 have been cleared up by the authorities. Later in 1687,

there was a case dealing with the rape of a nine year old

girl. Surprisingly enough, the accused was allowed to

post bond for his appearance in court and promised to

behave himself while out on bond,

There are instances of the woman being punished for

lying about a rape or attempted rape. For example, in 1671

in York Maine one Frances Whitte was convicted of mouthing

"a slanderous ly" because she complained her brother

attempted to rape her. The situation leading to this case

is not Imown, Her punishment was comparitively mild, only.

Miscegenation and Cases Dealing with Indians and Blacks

Miscegenation was not unknown to the New Englanders— forced or otherwise. Usually it was the Indians who played

the local role of villain, but on occasion a black person would find him or herself entangled in a hopeless sexual-

legal maze from which there was no escape, Indians and

blacks could also be punished for ravishing their own

people as well as the whites. In l6?2 an Indian was found

guilty of raping an Indian girl about nine years of age.

For his punishment he was sold into slavery in the

Caribbean Islands,iinother Indian apparently raped the wife of an Indian, The indictment reads, "Tom Indian for that you not having the feare of God before yo^ eyes & 149

June last Comitt a rape on the body of Sarah the wife of John Jempson and Indian forcing hir to unlawful Copulation w^^ you , . . For this offence, Tom Indian was ordered

to be executed.As late as l6?l, we find women in the immediate vicinity of Boston not safe from attack. There is the example of "Samuell the son of William an Indian" who attempted to rape Daniel Baccon's wife. The Baccons lived in Cambridge.In l6 ?6 one Basto, a black slave of Robert Cox of Boston, was indicted for raping Robert's daughter, Martha, and three year old child. The slave pleaded not guilty but was convicted and hanged.A

Suffolk County case of l6?9 reveals a "John Negro" who confessed to ambushing Sarah Phillips of Salem and forcing her off her horse and "attempting to ravish her." John was sentenced to thirty stripes, had to pay Sarah five pounds and the charges of prosecution and fees of Court. His master was then ordered to dispose of him out of the country.Samuel Sewall diseusse

tion in a 1 705 entry in his diary; Deputies send in a Bill against fornication, or Marriage of white men with Negros or Indians ; with extraordinary penalties ; directing the Secretary to draw a Bill accordingly. If it be passid, I fear twill be an Oppression provoking to God, and that which will promote Murders and other Abominations. I have got the Indians out of the Bill, and some mitigation for them /the Negroes? left in it, and the clause about their Masters not denying their marriage. 150

For March 29, 1710, Sewall*s diary reveals the following cryptic comment, "Indian man charged with Ravishing and

Indian Girl of 3 years old, who was brouglit off, the principal Evidence being dead , . . ,

Pimishments

Although not always ending in execution, a person found guilty of a rape charge many times did forfeit their lives to the state. Cases in 1675 and l68l both ended in execution . Indeed, the indictments now seem to follow the same formula. Consider the following indictments of two men who were executed for rape:

Samuel Guile of Haverill being Comitted to Prison in order to his tryall for Comitting a Rape was presented & Indicted by the Grand Jury was brought from the prison to the barr where holding up his hand was Indicted by the name of Samuel Guile for not having the feare of God before his eyes & being Instigated by the divill , . , , (l675)33

W Cheny of Dorchester in the County of Suffollce in New England planter thou art Indicted by the name of Cheny for not having the feare of God before thy eyes, and being instigated by the divill. (l6 8l)^^ In punishing the guilty the courts were making an example for all in the community, A Pynchon court ruling spelled this out in no uncertain terms ; At the September 1685 court John Webb of North­ ampton, having been bound over by John Pynchon to answer 'to his notorious Crime in abusing the little maide Mary Bennet in a Shameful uncleane way,' appeared, was convicted and 151 sentenced to twenty lashes, the court being desirious to bear 'testimony against such abominable fruits and issues of corrupt nature, and to restraine al other Persons (God affording his restraining Grace) that such or such like woful effects of original sin in al Persons may not be Committed amongst us to the defiling the hand.35

Rape Case Example

A case from the Maine court records is an interesting study of a rape action because the historian can look at some of the file papers and achieve a sense of the confusion, untruth, and innuendo which must have faced a seventeenth-century Puritan magistrate. Both Rowland Jinkins and his wife entered a complaint against John White. Mary Jinkins told the examining magistrate that on Tuesday night just as it turned dark. White came to the Jinkins house and asked to talk with her. They conversed until White asked Mary to put her children to bed. Mary seemed afraid (this is confused in the deposition) of either being alone or of going to put the children to bed. Nevertheless, with White's help the children were bedded down. When this was done. White bolted the door, "and told the Deponent that hee came to have his will of her and most ly with her . . . ." White threw Mary on the bed and although she said she struggled, he overpowered her and prevented her from calling out. Mary said she struggled until out of breath, and that she was so frightened that she could not remember all that was done to her or how long White stayed. 152 In the morning Mary's mother came, knocked on the door and White, "opened the Dore & whent with her. h deposition of Hezekiah Elwell concerning the Jinkins' case suggested the following; Elwell told the magistrate that on Friday night the last day of June, he and Rowland Jinkins left their boat and went to Jinkins' house. When they were in the house, Mary Jinkins told her husband that the tinker (this was White's profession) and Goody Pope slept at the house the night before. Mary told her husband that she invited White to sleep at the foot of her bed, but he refused and slept on two chairs. Mary also said she and Goody Pope offered to leave their bed and give it to White, but he refused this also. Elwell noted that Mary Jinkins said White, "was an honest and a Civlll Man and that she should Love him for it as long as she lived.The discrepancies in these stories are not helped by the narra­ tive of Mary Rice, Jr., in her deposition. Mary Rice, Jr., stated that she was at the Jinkins house when White came calling. According to this deposition, Mary Jinkins invited White in, and White then asked about a canoe. Mary Jinkins said the canoe was at Mr. Kelley's and if White would stay until the next morning, she would go with him to get it. Then Mary Jinkins borrowed a pipe and tobacco to entertain White, and Mary Rice, Jr., left the house. Rice then states that on the Tuesday following the ^th of July, Mary Jinkins came to her house and told another woman that after 153 sitting with her all night, White forced her. /llthough Mary Jinkins claimed to be unconscious during the attack, "By what he said /White? and the Circumstances affter ward she said she knew he Did . . . . Mary Rice further stated that Mary Jinkins asked White why he had not come the night before according to his promise. In her deposition Sary Keen says she asked Mary Jinkins why she had been raped by White. Mary Jinkins replied that White forced her onto the bed, "and Strived with mee tel I fell into a fittle . . . that I could not tell what he Did to mee . . . ." Even though she claimed to be unconscious, Mary Jinkins said she knew she had been raped by what White said to her afterward. Sary Keen reminded Mary Jinkins that her accusations could cost White his life, and then she asked her where V/hite was when she again became conscious. When Mary Jinkins said White did not force her after her fit or before her fit, Sary Keen stated she had never been forced by IVhite because during the fit she could not prove what had been done. In another deposition it was related that Rowland Jinkins under the guise of saying his wife feared an Indian raid, asked Sarah Pope to go to his house and stay all night keeping his wife company. Sarah Pope replied that she was afraid since a man had been carried off near there. Jinkins then asked when Sarah Pope had last stayed at his house, and Sarah Pope replied that it was before her marriage. Jinkins then called his wife, "a 154

Mary Jinkins' mother, Sara Mugeridg, told the court she sent IVhite to her daughter's house to get a canoe, and when he did not return she worried that he had drowned $ The next morning going to her daughter's house, she discovered White who told her Mary expressed a fear of Indians and had asked him to stay the night. Sara Mugeridg said this was foolish as it would cause trouble with Mary's husband. There is then a description of the mother asking the daughter not to tell and of a scene in the Jinkins household when Rowland accused his wife of unfaithfulness but to no avail. His curiosity went unsatisfied.^^ Despite all the confusing testimony and conflicting deposition, the court found White and Mary Jinkins guilty of, "Lewd & Lacivious behavior with Each other . . , They both were sentenced to fifteen lashes and to pay the court fees.^^

Acquittals of Rape Charges and Changes of Charges

In some instances the accused party was found not guilty of rape or had the charge against him changed. For example, the indictment of Benjamin Symons reads : Benjamin Symons of wooborne in the County of Midlesex in New England being brought to the barr was Indicted by the name of Benjamin Symonds for that he . . . did Comitt a Rape on the body of Elizabeth Peirce . . . to wCh Indictment the prisoner at the barr pleaded not Guilty & put himself on his tryall by Godd 155 & the Country .... For reasons not determined by the record (perhaps a lack of evidence), Symons was found guilty of attempted rape rather than actual rape. He was bound over to the "Charlestown County Court" and had to appear before the County Court. Yet, Symons was, "to Ans^ w^ shall be layd to his charg for his fornication or his forcibly abusing

Elizabeth Peirce.A 169 0 case resulted in the acquittal of the alleged rapist even though the specifications in the indictment were rather luridly set forth* Henry Toltwood of Newberry Indicted by the Jurors for our Soveraigne Lord and Lady the King & Queen upon their Oaths, ffor that the Henry Toltwood on the thirteenth day of the month of August in the year 1690 in the second year of their Mat^®®. Reigne at a certain Place called Rowley woods in the Massachusetts w^h, fforce & armes in & upon Elizabeth Horsely of Rowley afores^ in the Colony afores^ a Maid of Eighteen yeares then & there in the Peace of God & the King & Queen being did make an Assault, and agt. the will of the s'^. Elizabeth Horsly ffelloniously did Ravish & carnally know. Against the Peace of o^ soveraigne Lord & Lady the King & Queen, and contrary to the laws of England & of this Colony in that Case made & provided. On s*^ Indictment was arraigned, pleaded not guilty, put himselfe upon Tryall, by God & the Country. The Jurors upon their Oathes say, that s^ Henry., Toltwood is not guilty according to Indictment What evidence Toltwood offered is unfortunately not preser­ ved, but it must have been quite convincing to free him from such an indictment. Thf e rape cases tell further the tale of sexual crime and malaajustment in col„ New England. Encompassing as they do child molestation as well as brutal assault. 156 the cases demonstrate the all too human fallings of the

Puritans. However, there were other cases dealing with extreme sexual abberration which further upset the New

England colonies. These will be discussed in the next chapter. Notes; Chapter Six

Blackstone, Vol. IV, p. 235. On this subject, Blackstone is further elucidated in Chapter One.

^Ibid., p. 2 3 7, Once again. Chapter One provides more discussion on this topic— it is mentioned again to refresh the reader's memory.

6. See also William H. Whitmore, ed,, Colonial Laws of Massachusetts (Boston; Rockwell and Churchill, I8 8 7), p. 15. Hereafter cited as. Colonial Laws of Mass.

2 3 0.

II, pp. 5^-5 5.

^Ibid., p. 5 5. Finally, the Humphrey girl told her sister of the crimes and being brought for examination before the Governor, she not only accused Fairfield but also two of her brothers with "dalliance." Since the brothers were so young that semination could not have taken place, they were privately corrected.

'^Ibid.. pp. 5 5-5 6.

^Ibid.. p. 5 6.

^Ibid.. p. 5 7.

5 7-5 8. For the actual legal record of this complicated case see, Nathaniel B. Shurtleff, ed., Records of Massachusetts, Vol. II (Boston; William White, 1 8 5 3), pp, i2-13. Hereafter cited as. Records of Mass. Vol. II. These court records have Fairfield confessing also to the "rape" of the younger Humphrey sister.: They also have a third man punished in the case : he was whipped and had to pay Humphrey 20 pounds. It is noted that the daughters received severe correction from the court, but its nature went unspecified. Haskins noted that on the same day 157 158 sentence was passed in the Humphrey case, "The General Court enacted its first addition to the capital laws of the Body of Liberties in the form of statutes prescribing mandatory death penalties for sexual intercourse, consensual or otherwise, with a child under ten and for forcible inter­ course with a woman 'married or contracted,' and a discre­ tionary death penalty for rape of any single woman above the age of ten." Haskins, Law and Authority, p. 150,

111Morison, Builders. p.

^^Ibid.. pi 9 8. See also, Winthrop, Vol. II, p. 55.

^^Winthrop, Vol. II, p. 4-5. There will be more to say on these subjects later.

^^Ibid.. p. 7 9.

^^Bibliographical Sketch, p. xxxi.

17,Court of Assistants. Vol. II, p. 8l and p. 8 6.

^^Records of Maine. Vol. I, pp. l4o-43.

^^John F. Cronin, ed., Records of the Court of Assis­ tants of the Colony of Massachusetts Bay 1 6 3 0-I6 9 2, VoTi III (Boston: County of Suffolk, 192Ô), p. 2 5Ô. Hereafter cited as. Court of Assistants, Vol. III.

pp. 1 5-1 6.

^^Court of Assistants, Vol. Ill, pp. 199-200.

^^Ibid.. p. 1 9 9.

^^Robert E. Moody, ed., Province and Court Records of Maine, Vol. Ill (Portland: Maine Historical Society, 19^7), pp. 2 5 8-5 9. Hereafter cited as. Records of Maine, Vol. III. 159 Maine. Vol. II (Portland: Maine Historical Society, 1931)» p. 4 3 4. Hereafter cited as, Records of Maine, Vol. II.

^^Court of Assistants. Vol. Ill, pp. 2l6-l?.

^^Court of Assistants. Vol. Ill, p. 210.

Harvey Wish, ed., The Diary of Samuel Sewall (New York: G.P. Putnam's Sons, 196?), p. 112. Hereafter cited as, Sewall, Diary.

^^Ibid.. p. 1 2 9. On miscegenation, Parkes states : It is interesting to find a color problem in early New England. Once in every six or eight years in each county a white woman, usually a servant, was convicted of fornication with a Negro or an Indian, On the other hand, fornication between white men and colored women was exceedingly rare. Neither public opinion nor the courts seem to have treated such cases with any unusual severity, except in Hampshire, where white women who had children by colored men were severely whipped. In 1 7 6 0, a minister's daughter was given fifteen stripes for committing fornication with her father's Negro slave. Negroes and Indians were also accused of rape somewhat more often than whites; in most counties a case of rape occurred on an averages of every half- dozen years. See, parkes, "Morals," 446.

^^Ibid.. p. 199.

_ Smith, ed., Colonial Justice in Western Massachusetts (1639-1702): The Pynchon Court Record (Cambridge: Harvard University Press, 1 9 6I), p. 1 0 6. Hereafter cited as, Pynchon Court. 160

^^Records of Maine. Vol. IV, p. 379.

^^Ibid.

38.Ibid.. p. 380.

39j""iMd

40.Ibid.

^^Ibid.. p. 381.

^^Ibid.. pp. 378-79.

^^Court of Assistants. Vol. I, p. 73.

^^Ibid.. p. 336. Chapter Seven: Crimes of Sodomy, Buggery, and Incest

Incest and the Extended Puritan Family

In discussing crimes of incest in colonial New England there is an additional complexity, because the extended family system of the Puritans sometimes made incest a difficult violation to avoid. This is particularly true in a frontier area where men and women found not much mating stock from which to choose. In New England and parti­ cularly Massachusetts the clergy was very interested in degrees of relationship— at least as far as marriage and sexual union were concerned. There were degrees of relationship which prevented marriage. The marriage of first cousins either by affinity or blood was not allowed. The Puritans also prohibited marriage with a deceased wife's sister. By a statute of Henry VIII in 15^0, it was legal to marry a cousin german. Henry himself took advantage of this law to marry Catherine Howard, first cousin to Anne Boleyn, Henry's second wife. Despite this legalization, the Puritans still did not approve of this sort of marriage; it was thought incestuous. Because Catherine Howard became yet another of Henry's headless spouses, Samuel Sewall drew a moral from her fate.^ I6l l62 Of course, as in everything else, the Puritans were quite anxious lest they should somehow breach one of God's laws, but this was different concerning incest. In fact, and again this was not unusual, the Puritans sometimes exceeded the injunctions of the holy word. In l6?9 the General Court in reply to interrogation decided that marriage with a deceased wife's sister was unlawful. In

169 5 this decision was reaffirmed by the ministers of Boston, Charleston, and Dorchester, Increase Mather led this conclave. This was followed by a general law against incestuous marriages issued the following June. Under the terms of this statute, the General Court although not claiming 'to determine what is the whole breadth of the divine commandment' did among others prohibit marriage with the sister or niece of a deceased wife. Although nominally in force until after the Revolution, a law of 1785 does not contain these prohibitions,^ About the June 1695 law concerning incest, Sewall records in his diary: The Bill against Incest was passed with the Deputies, four and Twenty Nos, and seven and twenty Yeas, The Ministers gave in their Arguments yesterday in writing; else it had hardly gon, because several have married their wives sisters, and the Deputies thought it hard to par them, "Twas concluded on the other hand, that not to part them, were to make the Law abortive, by begabting in people a conceipt /sic/ 0 that such Marriages were not against the Law of God,^ Sewall was not touched by the breakup of love affairs and marriages which the passage of this act required. The old diarist was a rock of moral rectitude and could sniff out 163

incest or any other moral degeneration quicker than most

Puritans could condemn the Stuarts as apostates and despots.

From this passage of Sewall's diary, it is apparent

that some of the colonists were beginning to find mates among relatives, and with the extended Puritan family even

the most distant relative could entangle the unwary into an

incestuous relationship. Samuel Sewall himself belonged to an extremely large family. He wrote many letters to

England telling his relatives there of the Births, deaths, and marriages occurring in New England. Sewall demanded equal information about his 'dear relations' in England.

In his diary and letterbook Sewall refers to forty-eight cousins, thirty-eight of whom had different last names,^

Family relationships could get extremely complex in Puritan society. Even if only connected by remote marriage ties, the Puritans would address each other as brother, sister, parents, and cousins. Morgan gives an example of this with the Winthrop family: when Fitz-John Winthrop's daughter married Mrs, Robert Livingston's son, Fitz-John wrote Mrs.

Livingston assuring her that he loved her son and that,

'being related to you in a nearer than the neere relation of friendship I will take all opportunity to express my sence of it and that it will very much please me to be called Your, most affectionate Brother, John Winthrop.'

The Winthrops had even remoter and more complex family ties. For instance, when John Winthrop, Jr., married 164

Edmund Reade's daughter and Hugh Peter married Reade's widow, Winthrop, Jr., called Hugh Peter father and Winthrop,

Sr., called him brother.^

Even the death of a spouse and the subsequent remarriage of the surviving partner did not simplify matters. A newly married man, besides gaining a new set of relatives with his new wife, also discovered that he did not lose his dead wife's relatives— they were still his Icin and treated as such. Morgan discusses the case of one

Edmund Pinson who remarried after his first wife's death.

Unfortunately, this second marriage was not happy and this state of affairs Pinson blamed on not properly consulting his first wife's parents about his remarriage:

'he is and was Guilty of Disobedience to his first wifes parents— who were Godly and Religious, In that he did not make them Acquainted and take their Advice In his present match, but rather with Esau to the Greife of his parents chose more for affection, then for Religion and therefore may he feare this Eveil is Com upon him . . . .'o

The new wife of a widower also became kin not only to his natural family but to the family of his first wife. When

Margaret Tyndal married the elder John Winthrop, she became related not only to his parents but to the families of

Winthrop's txvo former wives. She could actually address as 'brother Jerry' a man who was the brother-in-law of her husband's previous wife. Taking into account the second and third marriages which were frequent in the seventeenth- century, the historian is faced with a complex unravelling 165 process in order to trace family ties. As behind most Puritan ideas or actions, there was a biblical reason for such extended family structures. The Puritans understood the Bible literally when it described man and wife as one flesh— therefore the Puritans rarely used the term "in law." As noted before, so closely tied were a man and his wife not only to themselves but to their families, that a man was forbidden from marrying his dead wife's sister. As the Boston ministers pronounced:

'"Tis the law of our God, in Lev. xviii, 6, 'none of you shall approach /in a marriage/ unto any that is near of Kin to him.' Now, the kindred betwixt a man and his own wife's sister, is of the nearest sort: For, Inter Virum et mulierer non contrahitur affinitas, sed ipsi sunt affinitas causa:* so then this affinity is not less than in primo genere, and Therefore unlawful. It is likewise the concurrent sense of the greatest divines (particularly asserted in the Assemblies 'confession of faith;') that of what degree any one is of consanguinity to his wife, in the same degree of affinity is that person to the husband. And that an husband is forbidden to marry with the consanguines of his wife, by the same rule that consanguines are forbidden to marry among themselves. And this assertion may be demonstrated from the rules given in the eighteenth chapter of Leviticus. Wherefore, as a man may not marry his own sister, so not the sister of his wife, which is one flesh with him. '8 Samuel Sewall had a particular aversion to marriage between relatives. He admonished a cousin in 1703/04i 'You tell me you have been advised to marry the widow of you Cousin German. Tis a pity that any have been so Unadvised Themselvs, as to prompt

*This garbled Latin translates : Between a man and a woman a kinship is not contracted but the people themselves constitute a prior relationship. l66

you to do a needless Thing, about which Advice is needed, to know whether it be Lawfull or No . . . it is by Cascuists laid down as a Rule in these Cases, that Degrees of Consanguinity and Affinity do equally affect Marriage .... Now if the Scripture Reckons Grandfathers, Fathers; the Scripture likewise Reckons Cousins Germans among Brothers and Sisters, and so uncapable of Intermarriage.*9 In vast migration to New England in the mid-seventeenth- century must have greatly eased the marriage problems for a people with such extended families and strict rules of consanguinity. Except for Rhode Island, persons guilty of committing incest wore punished by being stigmatized exactly the way the scarlet letter was used to punish adulterers. There was some apprehension as to whether or not incest was a capital offense, and also, since the 1692 act did not conform with the laws of England, the Privy Council disallowed it in August l695. In June of 1695 the General Court in Massachusetts passed the law dealing with incest (previously noted) which remained in effect throughout the colonial period. Incest in this law was defined so as to harmonize with the incestuous relations stated by English ecclesiastical law. Again, punishment was stigmatization with the letter "I." Connecticut in 1702 and New Hampshire in 1714 adopted laws quite similar to the 169 5 one of Massachusetts. Connecticut provided for stigmatization until 1 8 2 1.^° Incestuous marriages could be dissolved by the 167 authorities of lead to divorce proceedings. There are cases in the colonial records which demonstrate both these actions, A 1690/9I case demonstrates that authorities would sever a marriage deemed incestuous;

The Court being informed that Samuel Newton of Marlborough did sometime since marry with Re be kah his late Unkle Isaac Newton's widow (by whom she hath issue one Daughter), and hath lived wth her as his wife by whom he hath had two children. The s^ Parties both appearing and confessing the truth of what is above written. Upon consideration thereof, the Court do Judge the s^. Persons at the time of s^ Marriage to have stood within the line of i\ffinity forbidden Marriage by the word of God, as also by the Laxv of England and their living together incestuous, And therefore forbid the s*^ Persons any Cohabitation or fellowship together as man & wife for the future, under the severest p e nalty,11

A case where incest led to divorce occurred in 1683, One

Elizabeth Maning addressed the court asking for a divorce from her husband. She produced papers proving that her wayward spouse committed incest with his sisters (here the historian must be careful— this does not necessarily mean blood sisters), Maning was convicted, but he escaped the jurisdiction and the punishment. He also did not provide "maintenance for his wife," According to the court record, Maning, "hath lately declared In writting under his hand & seale that he doth utterly renounce the sajd

Elisabeth and that he will not owne her for his wife or have anything to doe with her , , , ," Maning's crime and his declaration were considered by the court which declared Elizabeth Maning to be legally divorced from her

In M 1 ^ 168

In a Maine 1671 case Thomas Crawley fell under the suspicion of getting his daughter-in-law, Espira Saywood, pregnant. Indeed, in court Espira Saywood named Crawley as the father, Crawley was handed over to the constable but managed to escape. After his capture, he was sent to York Prison to await trial in the next county court. At this time, witnesses would be summoned. Unfortunately, the record of this trial is lost,In the case of a brother and sister committing incest it is surprising that the punishment was not even more severe : John Chandler & Elisabeth Chandler Son & daughter of John Chandler sen^ of Roxbury being presented to this Court for wanton uncivill & unseemely carriages the Court upon hearing of the case what was proved & what was Owned by Themselves doe Sentence the s^^ John & Elisabeth to bee severely whip't by their Father & mother in theire own house in pu^sence of the Constable & John Stebbins the Father to correct his Son & the mother her daughter with such a Number of Stripes as the Constable & Stebbins shall judge meete not exceeding fifteen Stripes apeice & that the s^ children bee put as under & not suffered to . r dwell together till the Court take further Order. In this case the curiosity of the investigator is whetted by the phrase "what was proved and what was Owned by themselves." For any couple engaged in such activities, lot alone a brother and sister (by blood) the court must have had some witnesses. Grave charges such as this usually did not go to the Court without collaboration. Maybe it was the parents who became unhappy witnesses to their family's shame. They certainly shared in the punish­ ment. Because of the crime, it might have been the 169 intention of the authorities to shame the parents because of flaws or mistakes in the upbringing of their offspring. It was not likely that the churches would keep from meddling in affairs of an incestuous nature and they did not. Indeed, in 1 6 9 1 /9 2a man was excommunicated from a Massachusetts church for marrying his brother's widow. The Puritans considered him an 'incestuous sinner.' The modern commentator is safe in agreeing with Oberholzer that incest rarely appears in either church or court records. Oberholzer has discovered what he claims to be the earliest church case— one occurring in 1690 (this case was also cited in Chapter Three). A group of soldiers were struck down by smallpox while on route to Canada. Of two brothers on the trip, one Josiah Owen survived while the other, Ebenezer, did not. Josiah proceeded to marry Ebenezer's widow, and realizing he had violated the law he fled the jurisdiction. One day the pastor and two lay members of his church called on him and asked him to come before the church for judgment. This Josiah Owen refused to do, and he was then excommuni­ cated as an 'impenitent, scandalous, wicked, incestuous sinner.' There was a public confession of incest by a man in 1 7 1 6, and in the 1 7 8 0's two women made similar confess- sions. A 1798 case involved Job Northrop who was found guilty of incest with his daughter— he was excommunicated. One church in 17^0 suspected a woman of having a child by the husband of her dead sister. Here the evidence was 170 lacking, and she was restored to the fellowship of the church with a confession of fornication. Even in the late eighteenth-century, the churches were still wrestling with incestuous relationships, A Plymouth church would not validify marriage with a deceased niece's husband. In

179^ a church could not rule on the propriety of marriage with a dead brother's spouse, "The church concluded that such marriages were inexpedient and helt that persons so married could not thereafter be admitted to membership,

Crimes of Sodomy and Buggery

In their New Jerusalem the Puritans found themselves also plagued by the sex crimes of sodomy and buggery,

Although the delineation between the two crimes of sodomy and buggery was sometine s blurred— especially by overwrought

Puritan commentators— sodomy in general dealt with unnatural atts between humans, while buggery concerned itself with sex acts between humans and anim^ils. There were English ideas and precedents concerning these crimes, and the Puritans were at least vaguely aware of them. With the English legal historians, the reader is almost immediately confused by the terminology. For instance. Blackstone;

. , . the infamous crime against nature, committed either with man or beast, A crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out: for, if false, it deserves a punishment inferior only 171 to that of the crime itself, I will not act so disagreeable a part, to my readers as well as to myself, as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be named ; , . . ,^7 According to Blackstone, crimes against nature were capital

This, /[the punishment? the voice of nature and of reason, and the express law of God, determined to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from heaven; so that this is a universal, not merely a provin­ cial precept. And our ancient law in some degree imitated this punishment, by commanding such miscreants to be burnt to death ; though Fleta says they should be buried alive; either of which punishments was indifferently used for this crime among the ancient Goths, But this offence (being in the times of popery only subject to ecclesias­ tical censures) was made felony without benefit of clergy, by statute 25 Hen, VIII, c, 6, revived and confirmed by 5 Eliz, c, 17, 'and still is a capital offence by the express provision of the statute 9 Geo, IV. c , 31, although in practice the capital punishment is seldom or never inflicted,' And the rule of law, 'when the crime is committed with mankind, is, 'that if both are arrived at years of discretion, agentes et consentientes oari poena olectantur.l°* Even in Coke's Institutes, there is confusion concerning crimes of sodomy and buggery stemming from differences in the meanings of the term, 'If the party buggered be within the age of discretion, it is no felony in him but in the agent only,' Sir Matthew Hale is also concerned with the ages of the parties involved, 'If buggery be committed upon

^Persons acting and consenting together are to be comprehended dqually by punishment. 172 a man of the age of discretion, both are felons within this law. But if with a man under the age of discretion, viz. fourteen years old, then the buggerer only is the felon, From these quotations, it should be clear that when discussing crimes of buggery the English commentators were speaking about crimes of a homosexual nature. But, the references are very vague, and when Blackstone does tackle the problem, he specifically mentions "crimes against nature" which are "committed either with man or beast," In New England the statutes (particularly those of Massachu­ setts) drew sharp distinctions between crimes committed with animals and crimes of a homosexual nature. In the "Laws and Liberties" there is an injunction against activities with animals (which the Puritans later referred to as buggery or bestiality), "If any man or woman shall LYE WITH ANY BEAST, or bruit creature, by carnall copulation; they shall surely be put to death; and the beast shall be slain, & buried, and not eaten. Lev, 20,

15. l6,The "Body of Liberties" drawn up seven years earlier also contains a statute dealing with bestiality; indeed, the language is almost identical, "If any man or woman shall lye with any beaste or bruit creature by Carnall Copulation, they shall surely be put to death. And the beast shall be slaine and buried and not eaten, Both the "Body of Liberties" of l64l and the "Laws and Liberties" of l648 carried laws prohibiting homosexual 173 arrangements. The "Body of Liberties" stated, "If any man lyeth with manlcinde as he lyeth with a woeman, both of them of committed abhomination, they both shall surely be put

to death,the l6 ^8 "Laws and Liberties" used almost the exact language but did carry a qualification probably caused by some actual circumstance, "If any man LYETH WITH MAN-KINDE as he lieth with a woman, both of them have committed abomination, they both shal surely be put to death: unies the one partie were forced (or be under fourteen years of age in which case he shall be severely punished) Levit. 20, 13» Here also it is noticed that the English age of discretion is mentioned leading to the conclu­ sion that English legal opinion might be carrying more weight at the time of this later codification. These statutory distinctions between crimes of bestiality and crimes of homosexuality were also echoed in New York in the

Duke of York's Laws" of 1 6 6 5-7 5, Thus, on bestiality, "If any man or woman shall lye with any Beast or Bruite Creature by Carnal Copulation they shall be put to Death, and the Beast shall be Burned,And on homosexuality,

"If any man lyeth with mankind as he lyeth with a woman,

they shall be put to Death, unless the one party were

forced or be under fourteen Years of age, in which Case he

shall be punished at the Discretion of the Court of

A s s i z e s ,

Despite the laws against sodomy or homosexual relation­ ships these crimes are almost never mentioned in colonial 174

legal records or in the recollections of the New England

colonists. One notable exception to this is Winthrop's

discussion of a sodomy case which plagued the authorities

in Connecticut. As was usual with cases of particular

perplexity, the Connecticut colonists sought the advice of authorities in the other colonies. The facts of the case at least as described by Winthrop are vague : a citizen of

Guilford was accused of using "unclean practices," The man was examined and testimony taken. These activities

established that the accused who was married, committed

sodomy with two people while he was in England, Also, he was a ccused of corrupting the young people of Guilford apparently through rather crude instructions and demon­ strations about sex, "he had corrupted a great part of the

youth of Guilford by masturbations, which he had committed, and provoked others to the like above a hundred times , , . .

These were serious offenses, but to make the situation more

grave, the accused proved unrepentant"and to some who questioned the lawfulness of such filthy practice, he did

insinuate seeds of atheism, questioning whether there were a God, etc," It was agreed that the proper penalty for

these crimes was execution, and the authorities were able

to pick from several divine injunctions to justify the death sentence. Even Winthrop lost his customary equanimity when discussing this man, "And indeed it was horrendum facinus

/horrible thing/, and he a monster in human shape, exceeding 175 all human rules and examples that ever had been heard of, and it tended to the frustrating of the ordinance of marriage and the inhering the generation of mankind. Unlike the cases of sodomy or homosexuality, there are several instances of colonial comment on buggery or bestiality, às in the case of sodomy just cited, there was a particularly vexing case in Connecticut. Here it was discovered that a respected member of the community had led a secret sex life of a loathsome nature. Cotton Mather waxes eloquently on this case at some length: . . . this Wretch, had been for now Twenty years, a Member of the Church . . . , and kept up among the Holy People of God . . . , a Reputation, for Serious Christianity. It seems that the Unclean Devil, which had the possession of this Monster, had carried all his lusts with so much Fury into this one Channel of Wickedness, that there was no Notice taken of his being Wicked in any other. Hence t'was, that he was Devout in Worship, Gifted in Prayer, Forward in Edifying Discourse.among the Religious, and Zealous in Reproving the Sins, of the other People; Every one counted hxm, A Saint: And he Enjoy'd such a Peace in his own mind, that in several Fits of Sickness, wherin he seem'd Nigh unto Death, he seam'd Willing to Dy; Yea, Death (he said) Smiled on him. Nevertheless, this Diabolical Creature, had Lived in most infamdous . . . Buggeries for no less than Fifty years together; and now at the Gallows, there were killed before his Eyes, a Cow, Two Heifers, Three Sheep, and TvJ’o Sowes, with all of which he had Committed his Brutalities. These, of course, were not the man's first transgressions. His wife had ten years previous to his execution seen him engaged in intercourse with a dog. He had sworn her to secrecy, killed the dog, but soon returned to his former 176 habits. It was when the man's son discovered him in suspicious circumstances with a sow that the community became aware of these activities. Mather described the warnings this man received about his life which apparently stopped his sexual activities for a while. At his execution, the man warned all not to neglect secret prayer and that he had sometimes also omitted family prayer. In this instance, what must have been extremely rankling to the authorities was the masquerade of the man's life. That a noted, respected, and upright church and community member could engage in such practices was a severe blow to the colony and members- of the church. Unfortunately for the Puritans, there were similar cases in other colonies besides Connecticut. Massachusetts, the cradle of Puritanism in New England, had some trouble over the years with cases of bestiality. Winthrop records the execution of a man convicted of buggery with a cow. After the cow was killed before the culprit, "he brake out into a loud and doleful complaint against himself, bewailed his sinful course of life, his disobediance to his parents, his slighting and despising their instructions and the instructions of his dame, and other means of grace God had offered him, etc.The Puritans were always teaching, even when approaching their own bitter ends. There are several recorded instances of attempted bestiality or unproved buggery cases which did not result 177 in execution. In 1643 one Teaugue Ocrimi, "for a foule, & divilish attempt to bugger a cow of Makepeaces" was sentenced to a symbolic execution and severe whipping. Making an accusation of bestiality or buggery and then not being able to prove it, could also be dangerous. In l657 a Ruben Guppy accused Richard Pitfold of bestiality. The case was referred to the Salem Court by the Court of i\ssistants, and Guppy was told to prosecute. In the Salem Court Pitfold was acquitted, and now Guppy discovered himself by legal difficulty:

Ruben Guppie accusing Richard Pitfold of beastillite & not making the same to appeare, wch had it been true would have indangered the sd. Pitfold's Life this Court doth sentence the said Guppie to be whipt & to pay the charge of the Constable & ye said Pitfold hath been at aboute this business, w°^ is 2t: 19s; io

of a man trying to fight his indictment for bestiality. The indictment against Goad read: , , , he not having the feare of God before his eyes being instigated by the Divill did on the seventh day of february last past in the After- noone the sun being two howe^s high Comitt the unnatural & horrid act of Beastiallitje on a mare in the highway of field , , , ,

Although he pleaded not guilty when the indictment was read, Goad had apparently at one time admitted his guilt to 178 this charge because the jury brought in a rather unusual verdict. If the prisoner's "confession ag^ himself upon his first apprhention" and the evidence presented in court was legal, then the jury found Goad guilty. Here, there seems to have been concern about getting two witnesses or pieces of evidence for a capital offense because the jury specifically mentions "one evidence." On the other hand, if the confession and evidence was not sufficient, then the jury found Goad, "not legally guilty of the fact but of a most horrid attempt of Beastiallity . . . ." It was left for the court to determine these points, and the magistrates found Goad to be guilty of the capital crime. In the sentencing it was provided, "that the mare you abused before your execution in yo^ sight be Icnoclct on ye head.Apparently, after the sentence. Goad again confessed. This gleaning is from Sewall's diary, "Benjamin Gourd of Roxbury (being about 17 years of age) was executed for committing Bestialityi-+-i-N.B. He committed the filth- ines at noon day in an open yard. He after confessed that he had lived in that sin a year. The causes he alledged were idleness, not obeying parents , . . There are cases of successful not guilty pleas to charges of bestiality or buggery. Jack Negro described as a servant to John Fairweather of Boston was indicted for having committed bestiality with a cow. He pleaded not 179 in 1 67 7 one John Lawrence, Jr., of Sudbury in Middlesex County was indicted for committing bestiality with a mare in Cambridge. Lawrence pleaded not guilty and was so found by the j ury. In 1683 Samuel Bayley of Weymouth was indicted, "that he not having the feare of God before his eyes being instigated by the divill did on the 2lst of Wovembe^ in the woods malitiously wickedly & felloniously comitt that abominable sinn of Buggery w^^ a mare . . . Bayley also escaped the charges, but the record is unclear as to what actually happened in court. Mary Webster was accused of witchcraft and sent to prison until the Grand Jury could study her case and frame an indictment. She was accused of having relations with the devil, "being insti­ gated by the divill hath entred into Covenant & had familliarity w^^ him in the shape of a warraneage /Indian word for black ca_fc7 & had hir Imp^ sucking hir & teats or marks found in hir secret parts as in & by severall testimonyes . . , Webster was found not guilty.In none of these cases do the colonial records tell why not guilty verdicts were supplied. Perhaps the charges were too fantastic to be believable. In l684 a court in Maine found the charges centering around suspicion of buggery so confusing that it decided to allow the matter to ride, at least for the time being:

Benjamin Preble appeard before this Court. In answere to a scandalous report ariseing from some publique fame of Buggery, whereby deepe reproach is cast on sd Preble, which Charge hee utterly disownes. In reference whereunto severall 180

evidences have been taken, although the treuth lyes darke & undiscovered, relating either to the Accusers or accused, & for the better cleare- ing of the premisses, have at present left matters therein to Consideration & further disquisition, to what afterwards may appeare from any farther evidence, considered with what evidences are already taken.37 This mystery must have remained unsolved; at least, infor­ mation on Benjamin Preble did not again appear in the record. These cases all demonstrate that as in so many other concerns, the Puritans were careful to weigh the evidence. Even in sensational crimes of a sexual nature, as the last incident shows, they were willing to set aside scandalous reports until more evidence could be gathered concerning the facts of the case. However, in cases of sodomy and buggery unlike other sexual cases if the facts were proved true, then the Puritans demanded the ultimate retribution— the forfeiture of life. The cases of incest although quite offensive to the Puritans, did not raise their ire as did those of sodomy or buggery. These cases also did not result in the death penalty. In fact given the intricate, complex, extended Puritan family, it is reasonable to assume that many holy saints wittingly and unwittingly crossed the proper bounds of consanguinity in making their marriages. Notes: Chapter Seven

^Howard, Vol. II, pp. 212-13.

^Ibid.. pp. 213- 14.

^Sewall, Diary, p. 7 6.

organ. Family, p. 1 5 0.

^Ibld.. p. 1 5 1.

~^Ibld.. p. 1 5 2.

^Ibld.. pp. 152-53.

^ I b i d . . p. 153.

^°Howard, Vol. II, pp. 177-78.

^^Records of Maine. Vol. II, pp. 426-27.

^^Suffolk County. Vol. 29, pp. 478-79.

484.

^^Oberholzers Delinquent Saints, p. II3. Chapter Three also contains a discussion of church disciplinary actions in cases of incest. the crime specified to prevent innocent parties, but he does not want to discuss these crimes in public. 181 182

concerning these crimes but in a slightly different context; a slight repetition seemed desirable to refresh the reader's memory.

^^Haslcins, Law and Authority, p. 2 7 1.

/no editor/» The Colonial Laws of New York. Vol. I (Albany: James B. Lyon, State Printer, 1894-), p. 20. Hereafter cited as. Colonial Laws of Mew York, Vol. I.

^^Ibid.

^^Winthrop, Vol. II, p. 32-4. Note that Winthrop repeats the age-old arguments against homosexual relations; they hinder proper marriage and do not lead to procreation.

^^Mather, "Pillars," pp. 6 3-6 4.

^^Winthrop, Vol. II, pp. 59-6o.

^^Court of Assistants. Vol. II, p. l2l. Bibliographical Sketch, p. xxxi.

^^Court of Assistants. Vol. Ill, pp. 6 6-6 7.

^^Ibid.. pp. 8 7-8 8. 183

^^Ibld., pp. 2 2 9 -3 0and pp. 2 3 3-3 4.

^'^Records of Maine, Vol. Ill, p. 1 9 9. Chapter Eight: Prostitution— Public Decency— Slanderous Statements

Prostitution and Public Decency

One area where there is particular murkiness as far as Puritan sexual habits are concerned is that of prostitution. There were, of course, prostitutes in England, and Black- stone discusses prostitution as a form of lewdness:

The last offence which I shall mention, . , , is that of open and notorious lewdness, either by 'keeping (or indeed, it has been said, in even' frequenting) houses of ill fame, which is an indictable offence; or by some grossly scandalous and public indecendy , . . ,' If the Puritans show a paucity of records and words about prostitution, the same is not true as far as public decency is concerned. Many were chastized for their public behavior, and although undoubtedly prostitution occurred in New England, it is very difficult to discern this activity from the records. Even when the terms prostitute or whore are found in colonial records, there is a suspicion of exaggeration based on the moral outrage at whatever acti­ vities were attracting attention. Indeed, Charles F, iidams noted in 1891 that when Jonathan Edwards described 'Night- walking , , , and leud practices' it was not in the same context that a modern reader or listener would take it. When Edwards called a woman one of the greatest 'company 184 185 keepers' he probably meant she walked, about on Sunday afternoons with her admirers,^ To Edwards this activity was also outrageous; evil is in the eye of the beholder. However, it is a fact that the Puritan authorities recognized the existence of prostitution. In October of

1672 the General Court of Massachusetts became alarmed by the, 'bold and audacious Presumption of some, to erect a stews, whore-House, or Brothal House . . . .' To stem this activity, the General Court enacted that 'every such Bawd, whore, or vile Person' who was convicted of prostitution or setting up a brothal, 'shall be severely whipt, at the Cartstayle, through the Streets, where such Offence or Offences hath been committed, with Thirty Stripes, and Thence to be committed to the House of Correction , , , to be kept with hard fare and labour . . . .' Once a week, these luckless sinners, 'in hair Frocks and blew Caps by the Executioner to be fastened to a hand Cart, and forced to draw all the filth laid up in the Cart, through the Streets, to the Sea side . . , .

Also, undoubtedly in an effort to insure decent public morals and to prevent the conditions which might help prostitution to flourish, the authorities attempted to regulate or punish those who were out at particularly late hours or who were engaging in enjoyment while other good citizens were fast in their beds. There are several convictions and court actions along these lines. For 186 instance, a "Timm Connell" was convicted for entertaining men and women at night "in a saspitious manner. Three women found themselves in court, "for keeping riotous Company at unseasonable times of night & disturbing theire court, "for entertaining persons at his house at unseason­ able times both by day & night to the greife of theire wives & Relations , , , Besides having to pay court fees and suffer a public admonishment, Spurr was charged not to allow any married men keep company with his daughter,^ Charles Lidgett was fined for staying too long in the tavern of a Widow George.^ In connection with this particular activity, the Massachusetts authorities forbade any single women to house lodgers: This Court accounting it their Duty by all due means to prevent appearance of sin and wickedness in any kinde: Do order; that henceforth it shall not be lawful for any single woman or wife in the absence of her Husband, to entertain or lodge any Inmate or Sojourner with the dislike of the Select men of the Town, or Magistrate, or Commissioners, who may have cognizance thereof, on penalty of five pounds per week on conviction thereof before any Court or Magistrate, or be corporally punished, not exceeding ten stripes ; iind all Constables are to take cognizance hereof for information in such cases. 8 A year before the above law in l6?3, John Tringo was imprisoned for being at Hope Husten's house, "at unseasonable houres in the night & for suspicion of bad carriages towards the s^ Husten." The court admitted it had no legal proof 187 against Tringo and, "considering his suffering by imprison­ ment Sentanoe him to give bond for the good behavio^ . , . ." A few years later, a Julian Knight was, "convict^ by her own confession in Court of being drunke, and entertaining of ^rchuball Forrest in the absence of her husband," She was given a choice of paying a fine and court fees or of receiving "ten stripes." Further Julian Knight was, "for­ bidden giving any further entertainment to s^ Forrest. The authorities were also concerned about men and women travelling together. Ostensibly for innocent or even educational purposes, the lawmakers of Massachusetts in 1675 knew that many such travels were for other reasons : V/hereas there is a loose and sinful Customes of Going or Riding from Town to Town, and that oft times Men and Women together, upon pretence of going to Lectures, but it appears to be meerly to Drink and Revile in Ordinaries and Taverns, which is in it self scandalous, and it is to be feared a notable means to debauch our Youth, and ha?:ard the Chastity of such as are drawn forth thereunto; For prevention whereof; It is ordered by this Court; that all single persons, who meerly for their pleasure take such Journies, and frequent such Ordinaries, shall be reputed and accounted Riotous and Unsober persons, and of ill Behaviour, and shall be liable to be Summoned to appear before any county Court, Magistrate or Commissioner, and being thereof convicted shall give Bond and sufficient Sureties for the good Behaviour in twenty Pounds, and upon refusal to do so, shall be committed to Prison for ten dayes, or pay a fine of forty shillings for each offence. 11 Thus it was that the authorities and magistrates attempted to insure common public decency. However, even though there were these statutes against 188 prostitution, travelling together, single women putting up boarders, and convictions for "unseasonable entertainment," tye Puritans discovered there were always mischief makers seeking sexual relief, outlet, or pleasure. As early as

16^1, there is the case of James Lawrence who was whipped for sneaking out of his master's house to keep company with "a leaude woman.Some thirty years later, Ephraim Beamis of Watertown was bound over to a court for pandering. The jury found Beamis guilty, "of witting & willing trapening & pandoring of Mary Willard to the end that John oynes might Comitt Adultery with hir . . . ." Beamis was sentenced to a fake hanging, a whipping of thirty-nine lashes, and to imprisonment until he paid prosecution and court costs. In this case conjecture as to whether or not this early example of pimping was just an occasional sideline for Beamis, or whether it represents a secret occupation only infrequently discovered by the autliorities is unans­ wered. In 1678 an "Ellino^ may" was convicted of "whoredom." She also had an illegitimate child and was sentenced to thirty-nine lashes and exiled from Boston unless given

Slanderous Statements

In a Maine court in 16^5 one Sarah Lynne declared she had been slandered by Edward Sanders who called her a whore and said she exhibited a "Lascivious carriage towards him" 189 and enticed him to her bed and came to his bed. Sarah

Lynne further accused Edward Sanders of saying of her,

"putting her hand in his codpiece, by shifting herselfe openly before him, soe that he hath discerned a secrett mar Ice in her body in such parte as were very immodest."

Sarah Lynne also declared that Edward Sanders had threatened her life and assaulted her. Sanders in his defense declared that he took Sarah Lynne as his wife which she now denied. He declared his willingness to take an oath to the truthfulness of his statement (this was apparently a process delineated in the charter to settle disputes in which there were no witnesses). The jury found for Sarah Lynne and awarded her thirty pounds damages.

There are other cases of slander suits. In 1 6 5 5, "John

Stiles of Windsor complaynes against John Bennet who at present resides in this Town for defaminge his wife, in saying she was a light woman and that he could have a leape on her when he pleased . . . . The next week, Bennet was whipped when he could not prove his innocence. In 1660 a man sued a woman for slander after she said he had been with Hester Bliss late a night and, "there were unseemely passages between them . . . ." He lost the suit ; perhaps

Hester's last name led the court to doubt her character 17

Other Circumstances Offending Public Morality

In l640 Margery Rugs was severely whipped for enticing and alluring George Palmer. Palmer even though he admitted 190 sex with Rugs, was only placed in the stocks because of his admission.This type of unequal punishment is not unusual in modern courts handling prostitution cases. A Samuel Banlces found himself in trouble with Maine author­ ities. He had to pay a fine and post bond for his future good behavior because the court, "by evidences suffitrent found sayd Banlces guilty of selfe accusation of an high offence, imprudently glorying in his owne wickedness that he lay with a hoore, & it appeares at another type sd. Bankes Cursed & reviled & did Sweare Severall tyms pro- fainely . . . .^^ Foul languages also entangled others with the authorities. In three l64l cases men were fined for "uncomely & obscean speeches" and "filthy speaches."^^ Women could also land in trouble because of loose language.

In 16^0, "Elisabeth Level was admonished for her imodest exp^ssions, enioyned to pay the witnesses, & so was dismissed. The way a woman presented herself in public was also open for judgment. There are a number of cases of women being tried and convicted of "lewd," "wanton," and "uncivill" carriages.Also there are cases of men in the courts for similar charges, "Moses Parker convicted of obscean carriages drawing out his yard in the pu^sence of many persons at Roxbury Ordinary, Sentenced to bee whip't with twenty Stripes or to pay Five pounds in money fine to ..23 191 Dignity was a worthwhile bearing in colonial New England.

There were also those cases dealing with men and women who were unfortunate enough to be caught or seen in compromising situations— either in public or private places or situations, Mary Clay was convicted for "uncivill

Garages" in that she allowed James Harmon and his wife to lie in bed with her. For this misbehavior, she was fined twenty-five shillings. There were witnesses to this activity.At the same court in which Tim O'Connell was convicted of entertaining men and women in a suspicious manner, Mary Plumm was convicted and sent to prison for being found in O'Connell's "Chamber" in what was deemed a "Suspitious manner." In court it was brought out that

Mary Plumm was in the room "naked to her Shift," and there were two men In the bed. Besides imprisonment, Mary Plumm also received twenty lashesApparently Mary did not learn her lesson, because the court record six months later reveals :

Mary Plumb convict of Lascivious carriage by being seene in bed wth a man. The Court Sentanced her to bee whip't severely with fifteen stripes & to pay fees of Court & prison & to stand committed to the house of correction till the Select men of Dorchester provide a meete service for h e r . 26

Elizabeth V/heeler and Joanna Peirce appeared before the

Suffolk County Court in April 1 6 7 8. These two had to answer for "disorderly carriage" in Thomas Watts' house in that being married women, they were, "founde sitting in other 192 mens Laps with theire iirmes about theire Necks." Both women admitted these activities and promised never to again engage in them. The court admonished them and ordered them to pay the court feesMary Wharton was convicted after confessing to "unclean carriages" with

Ezekial Gardiner. The court punished her with thirty lashes, payment of court fees, and imprisonment until the next session of the court. The fate of Gardiner is not mentioned.^^ à l6?8 case in Suffolk dealt with Simeon

Messenger and Joshua Hews. They were discovered in the company of two women "in a suspitious manner." The men admitted that they spent part of an evening with two women, "a little below the top of the hill behinde the house in which Govr Endicott last dwelt . . . ." However, the men refused to give the names of the two women claiming they did not know them. The court did not believe this ; unless Messenger and Hews revealed the names of their companions, they would be fined five pounds apiece. They also had to post bond of twenty pounds apiece for their good behavior until the next court session. Also, they were subject to pay the fees of the court.Three months later a Suffolk court admonished Abigail, the wife of John Gill, and ordered her to pay court fees, "for being in company of severall men at the house of Arthur Keyne, drinking and danceing . . . . This light sentence was because the defendant was not caught in a more compromising circumstance. 193

The more compromising the circumstance usually, the harsher

the punishment, Malce the punishment fit the crime. In

Maine in 16S5 Ann Pullman, wife of Jesper Pullman, found

herself in court accused of "unseemly words & Garages" with

Joseph Weare, The specific charge was, "Kissing of him

/ W e a r e Z a nd put [p— pj of her hand into Thomas Wises Cod

piss," There was a list of witnesses to attest to Ann

Pullman's behavior,A year later in Maine John Brown and

his niece, Susanna Brown, found themselves in trouble

because of "suspitious behaviours" and "scandalous Garages"

toward each other. The court authorities knew of previous

incidents between these two and had enjoined Brown to good

behavior. For this most recent activity, he had to pay

thirty shillings in silver or receive fifteen lashes and

pay court costs. The girl received a warning, Curiously,

nothing about an incestuous relationship was mentioned in

the record,

There are also particular cases in which the men only were punished for their baseness. In these instances it was

evidently believed by the court that the women were the

innocent victims of lewd remarks, gestures, or actions. For

example, in a Maine court Ambrose Boaden was fined four

pounds for "unchast and Lascivious oarages" with Ann Billine,

If unable to pay the fine, he was to receive fifteen lashes,

Ann Billine was not punished,John Norton, a soldier, had a complaint filed against him by Mary Growfoote and Hannah

Morgan stating he abused them, "especially , , , Mary 194

Growfoote taking up her Goatea and offering baseness to her etc," Besides Hannah Morgan and Mary Growfoote, there

wan another witness to these activities, Norton in defense

claimed he was drunk, and that while under the influence

he did not realize what he was doing. The court ordered

him to pay thirty shillings, "for his wicked and Lascivious

Gariage and attempts and Ten shillings for his Drunkeness,"

^gain, the women received no punishment because clearly

they were the abused parties,

It was through these laws and punishments that the

authorities and magistrates sought to insure a high

standard of public decency. Really, given the size and

populations of the New England colonies there does not

appear to be much of a problem concerning crimes of

immorality of any nature. But, as noted before, both

Governors Winthrop and Bradford were alarmed by sexual

offenses. Even in the later years of Massachusetts Bay,

there is this sense of alarm. In the l680's the Pynchon

Gourt in Western Massachusetts demonstrated that the

magistrates thought there was an increase in immorality.

In 1680 concerning the case of an illegitimate child the

court said it was, 'desirious to shew their detestation of

such forbidden and dangerous carnal Lusts and if possible to

prevent such like God provoking weyes , , , In another

case dealing with fornication, the court again pronounced

on, 'being desirious to beare due Testimony against this 195

Growing and provoking sin of whoredom and to restrain the like abhorend practices . . . . At a 1686 session also for fornication, the court announced it was, 'Sensible

of the growth and increase of this abominable Sin, and desirous to use all wayes to curb (as God shall Assist)

the further breakings out of such provoking Sins . , , .

The historian can see that these fears were groundless;

the contemporary Puritans thought they were being engulfed

in immorality. As Bernard Bailyn has pointed out, for the historian, it is what a people believe whether true or not that is important.

As in all that they disliked or sought to change, the

Puritans attacked the problem of immorality boldly and dealt with the cases in a surprisingly open nature. That they were not exiLirely successful in this crusade is symbolic of why the Puritan societies were unable to maintain their original momentum. Though they recognized human nature, they could not overcome its pernicious qualities.

In the end the real man, tired of the sham of pretence, defeated the ideal man who wished to keep pretence even modified, in order to preserve the public facade. But, the idealists (and the Puritans were nothing if not idealists) at least had waged the fight. Notes; Chapter Eight

^Blackstone, Vol. IV, pp. 6O-6 1.

^C, Adams, "Phases," 502-03. These qualifications have also been touched upon in Chapter Three,

^Suffolk County. Vol. 2 9, pp. 83-84.

^Ibid.. pp. 1 2 5-2 6.

Ibid.. Vol. 3 0, p.

Colonial Laws of Hass., p. 2i6.

^Suffolk County. Vol. 2 9, pp. 310-11.

^^Suffolk County. Vol. 30, p. II6 1.

Court of Assistants, Vol. II, p. 107.

Court of Assistants. Vol. I, p. II6. There is another case similar in nature, when a Maine man was taken to court in 1 6 8 2, "Wee present Wayman Bigdon for suffering two partys to ly upon his bed, seing them Act, whereby is strong suspition that the Act of uncleaness was Committed. The sd Bigdon makeing it his sport to tell it to severall persons." See, Records of Maine. Vol. Ill, pp. 77-78,

^"^Court of Assistants, Vol. I, p. 138. Along similar circumstances a Mary Rawlins was convicted "of bold whorish carriages" as well as having an illegitimate child. She was sentenced to be whipped twice twenty-five times with 196 19? a month between punishments. She did manage to petition her way out of the second whipping. See, Suffolk County, V^L. 2 9 , p. 358.

^^Records of Maine, Vol. I, pp. 8 5-8 6.

^^Pynchon Court, p. 2 3 6.

^^Ibid.. p. 247.

^Records of Maine, Vol. Ill, p. 223

20 Court of Assistants, Vol. II, p. 104.

Suffolk County, Vol. 3 0, p. 9^0 and p. IO6 1, Court of Assistants, Vol. II, p. 95. à I636 court entry reads, "Weybro Lovell wife of Capt. Lovell being p^sented by the grand jury for light & whoarish behavio^, was seriously admonised to repent, & walke humbly, chastly, & holily," Court of .Assistants, Vol. II, p. 6 5.

^^Suffolk County. Vol. 30, p. IO6 1.

^^Records of Maine. Vol. II, p. 9 2,

^^Suffolk County, Vol. 29, p. 1 2 5.

^^Ibid.. p. 185.

^^Suffolk County, Vol. 30, p. 6?4.

^^Ibld.. pp. 9 1 2-1 3.

^°Ibid.. p. 941.

Records of Maine, Vol. Ill, p, 129. 198

p. 224.

^^Ibid.. p. 6 1.

^^Pynchon Court, p. 2 9 0,

^^Ibld.. p. 1 0 5.

^^Ibld.

^^Ibld., p. 1 0 6. Bibliography

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