[514] March, 1637-38. "The law against adultery made by the Particular Court in October, 1631, is confirmed, that whosoever lieth with another man's wife, both shall be punished by death; and this is to be promulgated."—Mass. Col. Rec., I, 225. This law was confirmed in 1640, the act of 1631 being then formally repealed: ibid., I, 301.
[515] In 1643-44, at a quarter court held in Boston, "James Brittanie being found guilty of adultery with Mary Latham, he was condemned to death. Mary Latham being found guilty of adultery with James Brittanie, she was condemned to death."—Record of the Court of Assistants of Mass. Bay Colony, 1641-44 (from the Barlow MS.) in Whitmore's Bibliographical Sketch of the Laws of Mass., xlii. According to Winthrop, Hist. of New England, II, 157-59, these persons were executed.
[516] Davis, The Law of Adultery, 15, 16.
[517] Thus on Sept. 7, 1641, for adulterous practices a man was "censured to bee sent to the gallos wth a roape about his neck, & to sit upon the lather an houre, the roapes end throwen over the gallos, so to returne to prison."—Mass. Col. Rec., I, 335; cf. Davis, op. cit., 15. In 1645 Henry Dawson came near suffering the extreme penalty: Winthrop, op. cit., II, 305. Three years later 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" (1648): Mass. Col. Rec., II, 243. Still more striking are the cases of Elizabeth Hudson and Bethia Bulloine (Bullen), "married women and sisters," carried from the county court at Boston before the assistants in 1667. On a special verdict by the jury the latter tribunal sentenced each "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: MSS. Early Court Files of Suffolk (Sept. 11, 1667), No. 821. Whether this sentence was for adultery as charged or for "lascivious carriage" we are not informed. In Noble's Records of the Court of Assistants, I, 56, 57, 70, 71, 73, 74, 114, 115, 240, 252, are ten cases of punishment by rope and gallows and whipping instead of death, the jury plainly avoiding the penalty for adultery under the law.
[518] Under date of Sept. 2, 1674, the Suffolk Files contain a petition from a husband praying that his wife—for adultery banished to Rhode Island the preceding year—might "be allowed to return in peace." His petition was denied, although he avers that through his wife's absence "his life is most uncomfortabell," having "no Relation at all that liveth with him and it being low with him and not abell to ... pay Rent in seuerall places & not willing to Remaine away from the things of god ... to goe to liue in a place and with such as he never delighted in."—MSS. Early Court Files of Suffolk, No. 1325.
[519] But the law is not entirely clear: see Plym. Col. Rec., XI, 12; and the comments of Davis, The Law of Adultery, 16.
[520] See the facts collected by Davis, op. cit., 16-32. For Massachusetts, between 1633 and 1681, are a number of sentences to wear a badge for offenses other than adultery, such as drunkenness, theft, wanton behavior, incontinence, or the disturbing of public worship. In most instances the mark is to be worn temporarily; but in three cases it is a continuous punishment. Thus on March 4, 1633-34, for drunkenness, Robert Coles is "sentenced to be disfranchised, and to wear about his neck, and to hang about his outer garment a D made of red cloth set upon white, to continue for a year and not to leave it off at any time when he should come among company."—Davis, op. cit., 18; Mass. Col. Rec., I, 112. This appears to be the earliest reference to a red badge placed upon the outer garments. See also the case cited by Davis from Josselyn's Account of Two Voyages to New England (Veazie's reprint, Boston, 1865), 178, 179, occurring either in Massachusetts or Plymouth prior to 1671; the similar case of sentence to wear a "Roman B cut out ridd cloth," for unclean and lascivious behavior and blasphemous words: in Plym. Col. Rec., III, 111, 112 (March 5, 1656-57); and one in Mass. Col. Rec. (Sept. 3, 1639), 269.
[521] Plym. Col. Rec., I, 132.
[522] Ibid., II, 28 (1641).
[523] Ibid., XI, 95, 172.