[573] Thus Shirley, "Early Jurisprudence of New Hamp.," Procds. New Hamp. Hist. Soc. (1876-84), 308, declares that "the practice prevailed very largely in New England, among the rich and the poor, the educated and the uneducated, the cultivated and the uncultivated."
[574] Stiles, op. cit., 65, 106. Adams, op. cit., 31, 32, 36, reaches the same conclusion. "It was," he says, "a practice growing out of the social and industrial conditions of a primitive people, of simple, coarse manners and small means," and probably did not exist in Boston, Salem, or Plymouth.
[575] So also in Holland, it is interesting to note, bundling appears in connection with the practice of public betrothals as the cause of ante-nuptial transgressions. See Townshend's speech on the Hardwicke act in Cobbett-Hansard, Parliamentary Debates, XV, 56-59.
[576] "There was Peregrine White, the first-born child of the Colony and stepson of Governor Winslow; Thomas Cushman, Jr., son of the elder; James Cudworth, Jr., son of the future general and deputy-governor, and Jonathan, his brother; Samuel Arnold, Jr., son of the Marshfield pastor; Isaac Robinson, Jr., grandson of the great Leyden pastor; Thomas Delano; Nathaniel Church; and other scions of leading families."—Goodwin, Pilgrim Republic, 600, who, thinks it a mistake to suppose that generation "below the present in general purity of life;" since the pre-contract was "a sort of semi-marriage" and "such cases were ferretted out and recorded" with "impartial diligence."
[577] Goodwin, op. cit., 600; cf. New Hamp. Prov. Papers, I, 386, 445. Freeman, Hist. of Cape Cod, I, 167, 168, gives the following forms of sentence: "A. F. for having a child born six weeks before the ordinary time of women after marriage, fined for uncleanness, and whipt, and his wife set in the stocks." "C. E., for abusing himself with his wife before marriage, sentenced to be whipt publicly at the post, she to stand by whilst the execution is performed. Done, and he fined five pounds for the trouble."
[578] In addition the records of the court of assistants for the early period contain six cases, in each instance the husband alone being punished; two cases in 1635, one in 1637, one in 1639, two in 1640: Mass. Col. Rec., I, 163, 193, 269, 296, 297; and three cases where both husband and wife were fined, condemned to stand in the market place, or to confess on Lecture Day: Rec. of the Court of Assistants, 1641-1643/44, in Whitmore, Bib. Sketch, xxxi, xxxiii, xxxvii.
[579] These are in the Athenæum copy of the MSS. Records of the County Court of Suffolk, 1671-80. There is also a unique example in the MSS. Early Court Files of Suffolk (1675), No. 1412. This is a case of appeal to the assistants from the county court at Salisbury, where John Garland and wife had been fined £5 for having a child eleven weeks too early. On his appeal John says, significantly: "I and She had parents Concent to marry and Legally published & Stayed after publication a Considerable time, that had any Such Act been co[=m]ited by us we could haue preuented it by marrying sooner;" and he further alleges that it was an untimely birth caused by the wife's fall. In reply, the attorney for the county of Norfolk said Garland had pretended to quote "Aristottle" to prove a child might come in the seventh month, but that if the court "please to Cast an eye vpon John garland ... they will judg Him to be no deepe man in phylosophie." Whereupon the worthy barrister, rejecting pagan learning, imparted the following bit of strictly orthodox biology: "It was well knowne to the Honored Court at Salisbury that the usuall time of woman was a set time As in genesis the 18 and the 10 compared with 2 of kings the 4th & the 16 verse, the Honored Court likewise knew that that time wast aboue seauen month as is the first of luke the 36 vers compared with the 39 & 40 and 56 & 57 verse of that chapter." The "jury" reversed the decision of the lower court.
[580] "If any man commit fornication with a single woman, they shall be punished, either by enjoining marriage, or fine, or corporal punishment, or all or any of these," as the court may determine: Whitmore, Col. Laws of Mass. (1660-72), 153. Later disfranchisement, in the case of a freeman, was added: ibid., 231. See also Whitmore, op. cit. (1672-86), 54, 208; Conn. Col. Rec., I, 527; New Haven Col. Rec., II, 590; Plym. Col. Rec., XI, 12, 46, 95, 172.
[581] June 16, 1663. At a county court at Charlestown, "Daniel Weld and Bertha his wife convicted of fornication before marriage, appeared and made humble acknowledgment of their sin craving the favor of the court. Admonished seriously to consider their great sin and fined £10 apiece. Execution respited during the pleasure of the court."—MSS. Records of the County Court of Middlesex, I, 243. On the same day before the same court John Roy and wife were convicted of the same offense, and "pleaded that it was committed a fortnight after their solemn contract in marriage and being hindered of marriage were overcome by the temptation." They had to pay only 40s.: ibid., 241.
[582] In these volumes there are five cases of fornication by single persons. In the first, April 4, 1654, the two culprits got each twelve stripes; in another, April 1, 1684, a married man and a girl were parties, the man being sentenced to pay £20 or receive thirty stripes, the woman, £5; and in one instance, October 2, 1677, the woman was "whipt fifteen stripes." More cruel was the fate of Sarah Pore. On July 7, 1785, for refusing to name the father of her two children, she was condemned "to be whipt severely twenty stripes and to lie in the house of correction for twelve months, there to be kept at hard labor and to be whipt once a month until she confess." Of course, on August 14, she named the man. For these cases see MSS. Records of the County Court of Middlesex, I, 39; III, 107, 194; IV, 97, 171, 173.