"Who has not the character of a strict moralist, sober, temperate, just and honest."

"Diligent in his business, and prudent in matters. Of a sweet and agreeable temper; for if he be owner of all the former good qualifications, and fails here, my life will be still uncomfortable."

Whether the first of these rules would have amounted to anything if she had suddenly been attracted by a man of whose ancestry she knew nothing, is doubtful; but the catalog of regulations shows at least that the girls of colonial days did some thinking for themselves on the subject of matrimony, and did not leave the matter to their elders to settle.

_XIII. Matrimonial Irregularities_

There is one rather unpleasant phase of the marriage question of colonial days that we may not in justice omit, and that is the irregular marriage or union and the punishment for it and for the violation of the marriage vow. No small amount of testimony from diaries and records has come down to us to prove that such irregularities existed throughout all the colonies. Indeed, the evidence indicates that this form of crime was a constant source of irritation to both magistrates and clergy.

The penalty for adultery in early Ma.s.sachusetts was whipping at the cart's tail, branding, banishment, or even death. It is a common impression that the larger number of colonists were G.o.d-fearing people who led upright, blameless lives, and this impression is correct; few nations have ever had so high a percentage of men of lofty ideals. It is natural, therefore, that such people should be most severe in dealing with those who dared to lower the high morality of the new commonwealths dedicated to righteousness. But even the Puritans and Cavaliers were merely human, and crime _would_ enter in spite of all efforts to the contrary. Bold adventurers, disreputable spirits, men and women with little respect for the laws of man or of G.o.d, crept into their midst; many of the immigrants to the Middle and Southern Colonies were refugees from the streets and prisons of London; some of the indented servants had but crude notions of morality; sometimes, indeed, the Old Adam, suppressed for generations, broke out in even the most respectable of G.o.dly families.

Both Sewall and Winthrop have left records of grave offences and transgressions against social decency. About 1632 a law was pa.s.sed in Ma.s.sachusetts punishing adultery with death, and Winthrop notes that at the "court of a.s.sistants such an act was adopted though it could not at first be enforced."[278] In 1643 he records:

"At this court of a.s.sistants one James Britton ... and Mary Latham, a proper young woman about 18 years of age ... were condemned to die for adultery, upon a law formerly made and published in print...."[279]

A year or two before this he records: "Another case fell out about Mr.

Maverick of Nottles Island, who had been formerly fined 100 for giving entertainment to Mr. Owen and one Hale's wife who had escaped out of prison, where they had been put for notorious suspicion of adultery."

The editor adds, "Sarah Hales, the wife of William Hales, was censured for her miscarriage to be carried to the gallows with a rope about her neck, and to sit an hour upon the ladder; the rope's end flung over the gallows, and after to be banished."[280]

Some women in Ma.s.sachusetts actually paid the penalty of death. Then, too, as late as Sewall's day we find mention of severe laws dealing with inter-marriage of relatives: "June 14, 1695: The Bill against Incest was pa.s.sed with the Deputies, four and twenty Nos, and seven and twenty Yeas. The Ministers gave in their Arguments yesterday, else it had hardly gon, because several have married their wives sisters, and the Deputies thought it hard to part them. 'Twas concluded on the other hand, that not to part them, were to make the Law abortive, by begetting in people a conceipt that such Marriages were not against the Law of G.o.d."[281]

The use of the death penalty for adultery seems, however, to have ceased before the days of Sewall's _Diary_: for, though he often mentions the crime, he makes no mention of such a punishment. The custom of execution for far less heinous offences was prevalent in the seventeenth century, as any reader of Defoe and other writers of his day is well aware, and certainly the American colonists cannot be blamed for exercising the severest laws against offenders of so serious a nature against society.

The execution of a woman was no unusual act anywhere in the world during the seventeenth and eighteenth centuries, and the Americans did not hesitate to give the extreme penalty to female criminals. Sewall rather cold-bloodedly records a number of such executions and reveals absolutely no spirit of protest.

"Thorsday, June 8, 1693. Elisabeth Emerson of Haverhill and a Negro Woman were executed after Lecture, for murdering their Infant children."[282]

"Monday, 7r, 11th.... The Mother of a b.a.s.t.a.r.d Child condemn'd for murthering it...."[283]

"Sept. 25th, 1691. Elisabeth Clements of Haverhill is tried for murdering her two female b.a.s.t.a.r.d children...."[284]

"Friday, July 10th, 1685.... Mr. Stoughton also told me of George Car's wife being with child by another Man, tells the Father, Major Pike sends her down to Prison. Is the Governour's Grandchild by his daughter Cotton...."[285]

From the court records in Howard's _History of Matrimonial Inst.i.tutions_ we learn: "'In 1648 the Corte acquit Elisa Pennion of the capitall offence charged upon her by 2 sevrall inditements for adultery,' but sentence her to be 'whiped' in Boston, and again at 'Linn wthin one month.'" "On a special verdict by the jury the a.s.sistants sentenced Elizabeth Hudson and Bethia Bulloine (Bullen) 'married women and sisters,' to 'be by the Marshall Generall ... on ye next lecture day presently after the lecture carried to the Gallowes & there by ye Executioner set on the ladder & with a Roape about her neck to stand on the Gallowes an half houre & then brought ... to the market place & be seriously whipt wth tenn stripes or pay the Sume of tenn pounds'

standing committed till the sentence be performed.'"[286]

When punishment by death came to be considered too severe and when the crime seemed to deserve more than whipping, the guilty one was frequently given a mark of disgrace by means of branding, so that for all time any one might see and think upon the penalty for such a sin.

All modern readers are familiar with the Salem form--the scarlet letter--made so famous by Hawthorne, a mark sometimes sewed upon the bosom or the sleeve of the dress, sometimes burnt into the flesh of the breast. Howard, who has made such fruitful search in the history of marriage, presents several specimens of this strange kind of punishment:

"In 1639 in Plymouth a woman was sentenced to 'be whipt at a cart tayle' through the streets, and to 'weare a badge upon her left sleeue during her aboad' within the government. If found at any time abroad without the badge, she was to be 'burned in the face with a hott iron.' Two years later a man and a woman for the same offence (adultery) were severely whipped 'at the publik post' and condemned while in the colony to wear the letters AD 'upon the outside of their vppermost garment, in the most emenent place thereof.'"[287]

"The culprit is to be 'publickly set on the Gallows in the Day Time, with a Rope about his or her Neck, for the s.p.a.ce 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."[288]

"Mary Shaw the wife of Benjamin Shaw, ... being presented for having a child in September last, about five Months after Marriage, appeared and owned the same.... Ordered that (she) ...

pay a fine of Forty Shillings.... Costs ... standing committed."[289]

"Under the 'seven months rule,' the culpable parents were forced to humble themselves before the whole congregation, or else expose their innocent child to the danger of eternal perdition."[290]

Many other examples of severe punishment to both husband and wife because of the birth of a child before a sufficient term of wedlock had pa.s.sed might be presented, and, judging from the frequency of the notices and comments on the subject, such social irregularities must have been altogether too common. Probably one of the reasons for this was the curious and certainly outrageous custom known as "bundling."

Irving mentions it in his _Knickerbocker History of New York_, but the custom was by no means limited to the small Dutch colony. It was practiced in Pennsylvania and Connecticut and about Cape Cod. Of all the immoral acts sanctioned by conventional opinion of any time this was the worst.

The night following the drawing of the formal contract in which the dowry and other financial requirements were adjusted, the couple were allowed to retire to the same bed without, however, removing their clothes. There have been efforts to excuse or explain this act on the grounds that it was at first simply an innocent custom allowed by a simple-minded people living under very primitive conditions. Houses were small, there was but one living room, sometimes but one general bedroom, poverty restricted the use of candles to genuine necessity, and the lovers had but little opportunity to meet alone. All this may have been true, but the custom led to deplorable results. Where it originated is uncertain. The people of Connecticut insisted that it was brought to them from Cape Cod and from the Dutch of New York City, and, in return, the Dutch declared it began near Cape Cod. The idea seems monstrous to us of to-day; but in colonial times it was looked upon with much leniency, and adultery between espoused persons was punished much more lightly than the same crime between persons not engaged.

A peculiar phase of immorality among colonial women of the South cannot well be ignored. As mentioned in earlier pages, there was naturally a rough element among the indented women imported into Virginia and South Carolina, and, strange to say, not a few of these women were attracted into s.e.xual relations with the negro slaves of the plantation. If these slaves had been mulattoes instead of genuinely black, half-savage beings not long removed from Africa, or if the relation had been between an indented white man of low rank and a negro woman, there would not have been so great cause for wonder; but we cannot altogether agree with Bruce, who in his study, _The Economic History of Virginia in the Seventeenth Century_, says:

"It is no ground for surprise that in the seventeenth century there were instances of criminal intimacy between white women and negroes. Many of the former had only recently arrived from England, and were, therefore, comparatively free from the race prejudice that was so likely to develop upon close a.s.sociation with the African for a great length of time. The cla.s.s of white women who were required to work in the fields belonged to the lowest rank in point of character. Not having been born in Virginia and not having thus acquired from birth a repugnance to a.s.sociation with the Africans upon a footing of social equality, they yielded to the temptations of the situations in which they were placed. The offence, whether committed by a native or an imported white woman, was an act of personal degradation that was condemned by public sentiment with as much severity in the seventeenth century as at all subsequent periods...."[291]

Near the populous centers such relationships were sure to meet with swift punishment; but in the more remote districts such a custom might exist for years and meant nothing less than profit to the master of the plantation; for the child of negro blood might easily be claimed as the slave son of a slave father. Bruce explains clearly the att.i.tude of the better cla.s.ses in Virginia toward this mixture of races:

"A certain degree of liberty in the s.e.xual relations of the female servants with the male, and even with their master, might have been expected, but there are numerous indications that the general sentiment of the Colony condemned it, and sought by appropriate legislation to restrain and prevent it."

"...If a woman gave birth to a b.a.s.t.a.r.d, the sheriff as soon as he learned of the fact was required to arrest her, and whip her on the bare back until the blood came. Being turned over to her master, she was compelled to pay two thousand pounds of tobacco, or to remain in his employment two years after the termination of her indentures."

"If the b.a.s.t.a.r.d child to which the female servant gave birth was the offspring of a negro father, she was whipped unless the usual fine was paid, and immediately upon the expiration of her term was sold by the wardens of the nearest church for a period of five years.... The child was bound out until his or her thirtieth year had been reached."[292]

The determined effort to prevent any such unions between blacks and whites may be seen in the Virginia law of 1691 which declared that any white woman marrying a negro or mulatto, bond or free, should suffer perpetual banishment. But at no time in the South was adultery of any sort punished with such almost fiendish cruelty as in New England, except in one known instance when a Virginia woman was punished by being dragged through the water behind a swiftly moving boat.

The social evil is apparently as old as civilization, and no country seems able to escape its blighting influence. Even the Puritan colonies had to contend with it. In 1638 Josselyn, writing of New England said: "There are many strange women too (in Solomon's sense,"). Phoebe Kelly, the mother of Madam Jumel, second wife of Aaron Burr, made her living as a prost.i.tute, and was at least twice (1772 and 1785) driven from disorderly resorts at Providence, and for the second offense was imprisoned. Ben Franklin frequently speaks of such women and of such haunts in Philadelphia, and, with characteristic indifference, makes no serious objection to them. All in all, in spite of strong hostile influence, such as Puritanism in New England, Quakerism in the Middle Colonies, and the desire for untainted aristocratic blood in the South, the evil progressed nevertheless, and was found in practically every city throughout the colonies.

Among men there may not have been any more immorality than at present, but certainly there was much more freedom of action along this line and apparently much less shame over the revelations of lax living. Men prominent in public life were not infrequently accused of intrigues with women, or even known to be the fathers of illegitimate children; their wives, families and friends were aware of it, and yet, as we look at the comments made at that day, such affairs seem to have been taken too much as a matter of course. Benjamin Franklin was the father of an illegitimate son, whom he brought into his home and whom his wife consented to rear. It was a matter of common talk throughout Virginia that Jefferson had had at least one son by a negro slave. Alexander Hamilton at a time when his children were almost grown up was connected with a woman in a most wretched scandal, which, while provoking some rather violent talk, did not create the storm that a similar irregularity on the part of a great public man would now cause.

Undoubtedly the women of colonial days were too lenient in their views concerning man's weakness, and naturally men took full advantage of such easy forgiveness.

_XIV. Violent Speech and Action_

In general, however, offenses of any other kind, even of the most trivial nature, were given much more notice than at present; indeed, wrong doers were dragged into the lime-light for petty matters that we of to-day would consider too insignificant or too private to deserve public attention. The English laws of the seventeenth and eighteenth centuries were exceedingly severe; but where these failed to provide for irregular conduct, the American colonists readily created additional statutes. We have seen the legal att.i.tude of early America toward witchcraft; gossip, slander, tale-bearing, and rebellious speeches were coped with just as confidently. The last mentioned "crime," rebellious speech, seems to have been rather common in later New England where women frequently spoke against the authority of the church. Their speech may not have been genuinely rebellious but the watchful Puritans took no chance in matters of possible heresy. Thus, Winthrop tells us: "The lady Moodye, a wise and anciently religious woman, being taken with the error of denying baptism to infants, was dealt withal by many of the elders, and others, and admonished by the church of Salem, ... but persisting still, and to avoid further trouble, etc., she removed to the Dutch against the advice of all her friends.... She was after excommunicated."[293]

Sometimes, too, the supposedly meek character of the colonial woman took a rather Amazonian turn, and the court records, diaries, and chronicles present case after case in which wives made life for their husbands more of a battle cry than one gladsome song. Surely the following citations prove that some colonial dames had opinions of their own and strong fists with which to back up their opinions:

"Joan, wife of Obadiah Miller of Taunton, was presented for 'beating and reviling her husband, and egging her children to healp her, bidding them knock him in the head, and wishing his victuals might choake him.'"[294a]

"In 1637 in Salem, 'Whereas Dorothy the wyfe of John Talbie hath not only broak that peace & loue, wch ought to hauve beene both betwixt them, but also hath violentlie broke the king's peace, by frequent laying hands upon hir husband to the danger of his Life.... It is therefore ordered that for hir misdemeanor pa.s.sed & for prvention of future evill.... that she shall be bound & chained to some post where shee shall be restrained of her libertye to goe abroad or comminge to hir husband, till shee manefest some change of hir course.... Only it is permitted that shee shall come to the place of G.o.ds worshipp, to enjoy his ordenances.'"[294b]

Women also could appeal to the strong arm of the law against the wrath of their loving husbands: "In 1638 John Emerson of Scituate was tried before the general court for abusing his wife; the same year for beating his wife, Henry Seawall was sent for examination before the court at Ipswich; and in 1663, Ensigne John Williams, of Barnstable, was fined by the Plymouth court for slandering his wife."[295]

Josselyn records that in New England in 1638, "Scolds they gag and set them at their doors for certain hours, for all comers and goers by to gaze at...."

In Virginia: "A wife convicted of slander was to be carried to the ducking stool to be ducked unless her husband would consent to pay the fine imposed by law for the offense.... Some years after (1646) a woman residing in Northampton was punished for defamation by being condemned to stand at the door of her parish church, during the singing of the psalm, with a gag in her mouth.... Deborah Heighram ... was, in 1654, not only required to ask pardon of the person she had slandered, but was mulcted to the extent of two thousand pounds of tobacco. Alice Spencer, for the same offence, was ordered to go to Mrs. Frances Yeardley's house and beg forgiveness of her; whilst Edward Hall, who had also slandered Mrs. Yeardley, was compelled to pay five thousand pounds of tobacco for the county's use, and to acknowledge in court that he had spoken falsely."[296]

The mere fact that a woman was a woman seems in no wise to have caused merciful discrimination among early colonists as to the manner of punishment. Apparently she was treated certainly not better and perhaps sometimes worse than the man if she committed an offense. In the matter of adultery she indeed frequently received the penalty which her partner in sin totally escaped. In short, chivalry was not allowed to interfere in the least with old-time justice.

FOOTNOTES:

[230] _Diary_, Vol. III, p. 237, p. 396.

[231] _Diary_, Vol. III, p. 237.

[232] Howard: _History of Matrimonial Inst.i.tutions_, p. 166.