A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

TABLE VII

Fornication Cases before the General Sessions of Suffolk County, Mass., September, 1725, to October, 1732[591]

	Year
	1725	1726	1727	1728	1729	1730	1731	1732	Total
Single women:
Confessed	..	..	..	..	..	..	..	..	1
£3 or 10 stripes	..	..	1	..	..	..	..	..	..
Pleaded guilty	..	..	..	..	..	..	..	..	8
£4 or 10 stripes	..	..	2	..	..	..	..	..	..
£3 or 10 stripes	..	..	2	..	..	1	..	..	..
£2 or 10 stripes	..	..	..	1	..	1	..	1	..
Pleaded not guilty, but convicted	..	..	..	..	..	..	..	..	3
£5 or 10 stripes	..	..	..	..	..	1	..	..	..
10 stripes	..	..	..	1	..	1	..	..	..
Pleaded guilty and named man	..	..	..	..	..	..	..	..	35
£5 or 10 stripes	..	1	..	..	..	..	..	..	..
£4 or 10 stripes	2	2	1	..	2	..	..	..	..
£3 or 10 stripes	1	2	2	5	3	4	3	1	..
£2 or 10 stripes	..	..	..	1	1	..	1	3	..
Came in freely and accused a man	..	..	..	..	..	..	..	..	1
£2 or 10 stripes	..	..	..	..	..	..	1	..	..
Married couples:
Fornication before marriage, man alone accus'd	..	..	..	..	..	..	..	..	2
20s. or 10 stripes	..	..	..	..	..	1	1	..	..
Fornication before mar'ge, woman alone accus'd	..	..	..	..	..	..	..	..	5
40s. or 10 stripes	..	1	..	..	1	1	..	..	..
20s. or 10 stripes	1	1	..	..	..	..	..	..	..
Total	4	7	8	8	7	10	6	5	55

themselves before the whole congregation or else expose their innocent child to the danger of eternal perdition.[592] Yet, in spite of the fact that the clergy had thus devised a punishment more terrible to bear than the fines or stripes imposed by the criminal law, during the very period under consideration the church records show a great increase in the number of confessions. Adams suggests that an explanation may be found in the religious excitement which generally prevailed during the second quarter of the eighteenth century, the period which includes the "Great Awakening" under Whitefield in 1740, the Northampton revival of 1735, "engineered and presided over by Jonathan Edwards," and earlier "harvests" of the same character.[593] At Braintree, for example, there was a vast increase in the number of church confessions during the pastorate of John Hancock, 1726-43. It was "everywhere noticed that the women, and especially the young women, were peculiarly susceptible to attacks of the spiritual epidemic. 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 taverns, 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 noticed by him was the case of a young woman who had been one of the greatest 'company keepers' in the whole town, who became 'serious, giving evidence of a heart truly broken and sanctified.' This same state of affairs doubtless then prevailed in Braintree, and indeed throughout New England. The whole community was in a sensitive condition morally and physically."[594] The morbid quickening of the conscience would thus naturally result in a greater number of confessions rather than in an increase of sexual license; and this same cause seems adequate to explain the extraordinary number of confessions which we have found in the contemporary court records.[595] Besides, after the sin had been disclosed before the congregation, an acknowledgment in court would almost necessarily follow. It would be very strange, however, if there were not a considerable increase in immorality. The practice of bundling, as Adams believes,[596] may have afforded ready opportunity. Any violent or protracted disturbance of the mental or nervous equilibrium, often tending to produce sexual excesses, would be sure to find "vent" in so dangerous a custom, especially when sanctioned by the recognized doctrine of betrothal.

Finally it is not without interest to note that the higher legal significance of the "contraction," as compared with that of the English sponsalia, is due mainly to the influence of the Jewish law. The code of Moses mentions no fixed ceremonies for concluding marriage.[597] But precisely the same relation as by the Puritans is fixed between marriage and betrothal. For criminal assault upon the betrothed "damsel that is a virgin" and for adultery the death penalty is prescribed.[598] Later, however, the rabbinical law establishes "certain legal formalities for the act of concluding marriage. The act consisted of two distinct parts, intervened by the lapse of a certain time, the betrothment and the nuptials."[599] To constitute a legal betrothment the mere consent of the parties did not suffice. The performance of a solemn act was required. This consisted in the man's giving to his chosen bride in the presence of two witnesses either a written instrument, sh'tar, or a piece of money, kaseph, and saying: "Be thou consecrated (wedded) to me."[600] The contract thus made is not a "mere promise to marry," with civil consequences for non-fulfilment. "It is the very initiation of marriage. The betrothed parties are in some respects regarded as married, though not yet entitled to the marital rights nor bound to fulfil any of the mutual duties of conjugal life.... The betrothment could be dissolved only through death or a formal bill of divorce."[601]

Among the Jews it was quite customary for the betrothal to be preceded by an "engagement," but it was not legally required.[602] The Puritan went farther in this regard, regulating proposal and courtship, as well as the pre-contract and nuptials, by statute.

V. BREACH OF PROMISE AND MARRIAGE PORTIONS

The New England contraction or public betrothal, when its social and legal consequences are considered, is thus seen to be an institution of far more historical interest than the scanty attention it has hitherto received would lead one to infer. This is all the more apparent when the accompanying practice of legal courtship is kept in view. Never, perhaps, in any modern society has parental control been so pronounced. But if consent were once given and sealed by a contract in due form, it could not be lightly withdrawn. The early records abound in notices of suits for breach of promise. The colonists were a litigious people; and members even of some of the best families do not hesitate to drag their matrimonial difficulties into court. Sometimes a jilted lover sues his fickle sweetheart; or a forlorn maiden seeks satisfaction from her betrothed spouse. Thus the Massachusetts court "orders that Joyce Bradwicke shall giue unto Alex: Becke the so[=m]e of xx^s, for promiseing him marriage w^thout her ffrends consent, & nowe refuseing to [p=]forme the same."[603] Likewise in the Plymouth jurisdiction we find John Sutton complaining "against Mary Russell, in an action of the case, to the damage of two hundred pounds, for engageing herselfe to another by promise of marriage, whenas shee had engaged herselfe by promise of marriage vnto the said John before. The jury find for the plaintiffe fifteen pounds damage, and the cost of the suite which came to 1^lb 10^s 6^d."[604] But this did not entirely end the matter. In 1662-63 the case was taken up for review, Mary having in the meantime become the wife of John Jacob. After a careful rehearing, the court reaches the curious decision that Mary's "actinges haue bine such ... as may not reflect vpon her disparagement, wee apprehending that what wrong hath bine vnto John Sutton heerin hath bine rather occationed by her father than by ... herselfe, shee haueing heard such thinges concerning the said Sutton as might justly discurrage her, although the truth of these reports wee see not cause to determine." Whereupon, oddly enough, it is decreed "that the abouesaid John Sutton doe pay vnto John Jacob ... the su[=m]e of fifty shillings."[605]

Sometimes a parent joins with his aggrieved child in seeking reparation; as when "Richard Siluester, in the behalfe of his daughter, and Dinah Siluester in the behalfe of herselfe" recover twenty pounds and costs from John Palmer, "for acteing fraudulently against the said Dinah, in not [p=]forming his engagement to her in point of marriage."[606]

The proceedings of the Massachusetts courts contain the record of many similar suits under a variety of conditions. Some are ordinary cases of breach of promise.[607] In 1735 a woman was awarded two hundred pounds and costs at the expense of her betrothed who after jilting her had married another, although he had first beguiled her into deeding him a piece of land "worth £100."[608] Hopestill Aldrich in 1764 was not so successful. The higher court on appeal declined to give her damage, because after beginning her action against the faithless Darius Daniels she had married David Bowin, "who is still living and is her lawful husband."[609] A number of cases afford further evidence of the danger lurking in the New England doctrine of espousals, the indemnity sought being intended in part to punish personal wrongs committed under cover of pre-contract.[610]