VI. SELF-GIFTA, CLANDESTINE CONTRACTS, AND FORBIDDEN DEGREES
The Separatist and the Puritan, regarding marriage as "purely a civil contractual relation," logically conceded that "the parties may marry themselves as they may make other contracts." But, "like all other civil institutions, this may be regulated by municipal law. It should therefore be sanctioned by the civil authority;" and for that reason persons may be fined for marrying without observing the forms prescribed by the statutes.[645] Nevertheless such legal restraint, however wholesome and reasonable, seems to have been resented by the more radical as an interference with individual liberty; though doubtless the disregard of the marriage laws was in part due to the rudeness of an early society.
Instances of self-betrothal and self-gifta seem to have been frequent in all the New England colonies. Thus, in 1678, Edward Wanton was fined £10 by the general court of Plymouth for "marrying himself," and Thomas Boarman paid £5 for the same offense. In 1684 William Gifford was fined fifty shillings for contracting a "disorderly marriage."[646] More interesting is the case of Edward Perry, on Cape Cod, who appears to have been guilty of self-marriage in 1654. For this he was fined £5; and Thomas Tupper, of Sandwich, for neglecting to perform the ceremony, "was 'disallowed' by the court from solemnizing marriages in future."[647] Then "magistrate Prence, when passing by on his return from court to Eastham, was to marry him rightly. Perry refused to be re-married, and was fined £5 more, with the discouraging notice that his fine would be repeated every three months till he complied."[648]
Marriages by the primitive form of "hand-fasting" were not unknown in Massachusetts. An intelligent French refugee, who visited Boston two years after the revocation of the Edict of Nantes, writes that "there are those who practice no Formality of Marriage except joining Hands, and so live in Common."[649] But the most celebrated instance of self-gifta is the case of Governor Richard Bellingham, who in 1641 entered into a private marriage with Penelope Pelham, herself "about forming a contract with another."[650] "Two errors more," says Winthrop, "he committed upon it. 1. That he would not have his contract published where he dwelt, contrary to an order of court. 2. He married himself contrary to the constant practice of the country."[651] The governor was therefore indicted for his offense by the grand jury; but "he declined to leave his place on the bench" over which he presided, "in order to take a position in the dock, and thus 'escaped both trial and punishment.'"[652] The secretary "postponed the case amidst excitement, and it was not again called up."[653]
In spite of the constantly increasing severity of the penalties, clandestine marriages gave the lawmaker much trouble.[654] This is plainly revealed by the laws, already cited, relating to banns, consent, registration, and celebration,[655] especially by those of Rhode Island. The act of 1647 provides "that no contract or agreement between a Man and a Woman to owne each other as Man and Wife, shall be owned from henceforth threwout the Whole Colonie as a lawfull marriage, nor their Children or Issue so coming together to be legitimate or lawfullie begotten," but such as conform to the statute.[656] The clause relating to the issue of irregular marriages is noteworthy; for it is contrary to the usual tenor of the colonial laws, which—anticipating the policy of William III.—usually imposed severe penalties upon the offenders without affecting the legitimacy of the children. But even so stringent a remedy did not suffice. A new law in 1665 enforces that of 1647, adding the penalty prescribed for "fornication" for non-observance; but making the important exception in favor of existing irregular marriages "that any persons now living within the confines expressed in our late charter, ... that are reputed to live together as man and wife by the common observation or account of there neighbours before this act was passed, shall not come vnder any of the censures, fines, or penaltyes in any of the fore premised acts or orders, or in this present [order] concearning marriages," though "there may have been some neglect of the due observation of the rules and directions to that end therein contained."[657] It appears that "some persons" had "taken advantage of the law" to render the children of unregistered marriages illegitimate. An explanatory statute was therefore enacted in 1698 declaring such marriages lawful;[658] and in the subsequent legislation of this colony the lawmaker was content to punish the parties to irregular marriages without affecting the status of the offspring.[659]
The clergy of New England, and especially those of Massachusetts, were much agitated over the question of the degrees of relationship which should be prohibited in wedlock. Marriage of first cousins, by affinity as well as by blood, and with a deceased wife's sister was strongly opposed. That of cousins german had been legalized by a statute of Henry VIII. in 1540;[660] and the earliest fruit of this act was the marriage of that monarch with Catherine Howard, first cousin of Ann Boleyn, his former wife.[661] Within less than two years thereafter Catherine lost her head; and Sewall, who like the Mathers regarded such marriages as incestuous, draws a grim moral from her fate.[662] Indeed, the Puritans, were in sore straits, fearing lest the "English Nation," while rejecting the excessive strictness of the Roman church in this regard, had gone "beyond the golden mean towards the other Extream."[663] In their anxiety to obey the Mosaic law they even exceeded its requirements.[664] Already in 1679 the general court, in reply to interrogation, had decided that marriage with a deceased wife's sister was unlawful,[665] thus taking the position which has been stubbornly maintained ever since by the English House of Lords. Interest in the matter seems, however, to have culminated in 1695. In that year a meeting of the ministers of Boston, Charlestown, and Dorchester, with Increase Mather at their head, came to the same conclusion as the general court in 1679.[666] This led directly to the passage of the celebrated law against incestuous marriages of the following June,[667] by which the general court, though not taking "in hand to determine what is the whole breadth of the divine commandment," proceeded, among other prohibitions, to forbid marriage with a wife's sister or niece.[668] For violation of the law, we have already seen, the culprit was condemned, as in the case of adultery, to wear the "scarlet letter." This act[669] remained nominally in force until after the Revolution; but the statute of 1785 in which these prohibitions do not appear was adopted seemingly without discussion.[670]
The colonial laws on this subject were not allowed to slumber. From the records of the Connecticut court of assistants, for instance, it appears that in May, 1694, Nathaniel Finch is complained of "for that he hath unlawfully married to Elizabeth Hemmeway," sister "of the said Finch his first wife." The pleas of Finch's attorney are "esteemed to be insufficient, and also of an offensive nature." Accordingly, having considered all the facts of the case, the "rules of God's word, the judgment of most able Divines, and the Laws of this colony," the court finds the "said marriage to be incestuous and unlawful," and therefore declares it "to be wholly null and void;" further relegating the case to the county court to be held at New Haven the next June, "to lay such punishment on the said Finch for his said offence as the nature thereof doth require."[671]
While the Massachusetts act of 1695 does not expressly prohibit a woman from wedding her husband's brother, a passage in Sewall's Diary shows that such unions were already treated as unlawful. On December 25, 1691, he writes, the "marriage of Hana Owen with her Husband's brother, is declar'd null by the court of Assistants. She commanded not to entertain him; enjoin'd to make a confession at Braintrey before the Congregation on Lecture Day, or Sabbath, pay fees of court and prison," and "to be dismissed."[672]