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| | | -- DonnaAckermann - 30 Oct 2009
Incest in Colonial Massachusetts, 1636-1710
This paper is now ready for review. Thank you. | |
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- Donna, I'm sure you can understand why footnotes are silly when we're making documents on the web. Please reformat the draft so that the footnotes are links. That will also make it possible for you to use a different sort of judgment, resulting in far fewer of them.
| | | I. Historical Context
In order to understand how colonial Massachusetts viewed incest, it is first necessary to understand colonial Massachusetts. Puritanism was a driving force in the establishment of the colony. According to John Winthrop, the first governor of the Massachusetts Bay Colony, the ultimate goal in establishing the colony was to “build ‘a Citty [sic] upon a Hill’ where it would be possible not only to worship and live as Christians but to set the world an example of godliness.” The colony was thus united in its purpose to serve God through its practice of Puritanism and relied on a theory of social covenant to demand that everyone “live righteously and according to God’s word.”
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< | Because Puritanism played such a large role in Massachusetts, the church itself was of the utmost importance in the daily functioning of the colony and served as the primary source of public and private morality. The church served as a strong form of social control precisely because it had so much power to regulate an individual’s actions. An additional form of social control in Massachusetts was the family. The colonists believed so adamantly in the family unit as a method of social control that the General Court in 1632 ordered all unmarried people to join families as servants or otherwise. Marriage was the core of the family unit and was therefore a particularly important familial relationship in a society organized around the church.
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- Surely there is a less flat-footed way to say what you need to say in order to introduce your subject. The opening words of anything should be engaging, or the remainder of what follows will not be read by anyone who does not already have her reason for reading.
Because Puritanism played such a large role in Massachusetts, the church itself was of the utmost importance in the daily functioning of the colony and served as the primary source of public and private morality.
- This use of the phrase, "the church" is a little misleading, isn't it, when talking about a congregational ecclesiology? Those who already understand the society of Colonial Massachusetts, and who therefore don't need even the perfunctory explanation you are giving, will know that you are not writing about a hierarchical organization of doctrine and invigilation, in either the Anglo-Catholic or Presbyterian form. But anyone who does need to read what you are writing here needs to have that explained precisely. Similarly, you need to make clear their understanding of the distinction between civil and religious institutions, and the placement of your subject on the civil rather than religious side.
The church served as a strong form of social control precisely because it had so much power to regulate an individual’s actions. An additional form of social control in Massachusetts was the family. The colonists believed so adamantly in the family unit as a method of social control that the General Court in 1632 ordered all unmarried people to join families as servants or otherwise. Marriage was the core of the family unit and was therefore a particularly important familial relationship in a society organized around the church.
- You don't need to SHOUT the names of books. Try citing in a more natural and less absurd law-review fashion.
| | | A Puritan marriage required living together harmoniously, having sex, and the man financially providing for the wife. And while the couple had a duty to love each other, their highest love was reserved for God. Puritanism required that a person’s thoughts and outward deeds serve God. Marriage was a form of outward conduct, and as marriage was a covenanted relationship, marriage itself was a way to serve God. Because marriage was such an important institution and itself served as a way to serve God, regulating who could marry whom was a topic Massachusetts took very seriously. A proper marriage therefore could result only from choosing a suitable person. Because family played such an important role in Puritan society, “any threat to the sanctity and integrity of the family unit deserved the most serious punishment of which God’s law approved.”
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- Are you really suggesting that one needs to be functionalist in this way in order to explain rules against incest? And won't that only deal with the form of "incest" constituted by "marriage within prohibited degrees?" Surely most incest doesn't consist of choosing a marriage partner poorly? So some definitional and analytic structure of your own needs to be stated here.
| | | The issue then became whether it was the church or the colonial government that should determine who qualified as a suitable person for marriage and what the appropriate punishment should be for those who marry an unsuitable person. While the church and state were separate institutions, they worked together. The church relied on civil law to regulate personal conduct and to fill in the gaps where the church was unable to enforce the laws of God. The civil government was therefore superior to the church, and it was the civil government that had jurisdiction to perform marriages, grant divorces, and punish religious crimes, including idolatry, blasphemy, heresy, and incest. Incestuous marriages were therefore considered a crime, not a sin, to be regulated by the colonial government.
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- As I said above, you shouldn't have needed to go the long way wrong to reach that conclusion, which is really a simple inference from more basic premises. Because, moreover, incest is not mostly about incorrect marital choices in the absence of biological relation, establishing the criminal nature of the problem is simpler than you allow for on the basis of obvious facts you don't mention.
| | | II. The Colonial Government’s Treatment of Incest | |
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< | Before discussing how the colonial government actually addressed incest, one must first establish that the colonial government had the power to do so, given that Massachusetts was an English colony. In both the Massachusetts Bay Colony Charters (of 1628 and 1691), the English monarchy gave Massachusetts the power to make the laws necessary to protect the public’s welfare, as long as those laws were not in conflict with English law. Although the charters explicitly provided that the colonists could establish necessary laws, the colonists consciously rejected the charter in its modification, repudiation, and additions of practices, procedures, and laws which conflicted with English law. For example, the colonists departed from English law by having the civil government assume jurisdiction over marriage and divorce. Indeed, the King cited the colony’s regulation of religious laws as being in conflict with English law as a reason to revoke the original colonial charter. Thus, although the charter allowed the Massachusetts colony limited power to enact laws, Massachusetts believed it had its own independent power to do as it saw fit.
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> | Before discussing how the colonial government actually addressed incest, one must first establish that the colonial government had the power to do so, given that Massachusetts was an English colony.
- No, that's straightforward, and would be obvious to point to in dozens of easy places. That's not work you have to do yourself. A citation to the Lawes and Libertyes themselves would be more than sufficient, and one to Haskins would do as well.
In both the Massachusetts Bay Colony Charters (of 1628 and 1691), the English monarchy gave Massachusetts the power to make the laws necessary to protect the public’s welfare, as long as those laws were not in conflict with English law. Although the charters explicitly provided that the colonists could establish necessary laws, the colonists consciously rejected the charter in its modification, repudiation, and additions of practices, procedures, and laws which conflicted with English law. For example, the colonists departed from English law by having the civil government assume jurisdiction over marriage and divorce. Indeed, the King cited the colony’s regulation of religious laws as being in conflict with English law as a reason to revoke the original colonial charter. Thus, although the charter allowed the Massachusetts colony limited power to enact laws, Massachusetts believed it had its own independent power to do as it saw fit. | | | The governor of Massachusetts clearly articulated the colony’s view when he informed Mr. Edward Randolph, a representative of the monarchy, that Massachusetts was not required to follow the laws of England and that the colony, and only the colony, had its own legislative power (derived from the charter) to make laws. Massachusetts believed it had the first, only, and final say on its laws. As a result of that attitude, the colonists established idealistic and practical laws, based on English law and God’s law, that reflected the colony’s holy purpose of serving God.
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| | | The colonial government based its incest law on the prohibitions included in the Bible, and debate in colonial Massachusetts about the proper incest law was directly attributable to the Bible’s omissions. The Bible includes a prohibition against seeing the nakedness of one’s kin and includes the forbidden degrees. Relationships between first cousins are not explicitly addressed. The Bible bans relationships of affinity, including marrying one’s wife’s sister but limits the prohibition on marrying one's wife's sister only where one's wife is still alive. By not addressing whether first cousins may marry or whether a man may marry his wife’s sister once his wife is dead, the Bible lays the groundwork for the debate that flourished in seventeenth century colonial Massachusetts.
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- Surely all this can be done in a sentence, with any number of references available if the reader needs to learn further.
| | | There were three phases in the development of the law in colonial Massachusetts. At first, the Court of Assistants established colonial law through orders and decisions, making the law the result of judicial process. There are no available cases of incest from this time period. During the second phase of colonial law, there was a concern that the magistrates had too much discretion in making their decisions, and as a result, there was a movement for a written code of laws, transferring power from the judiciary to the legislature. Two main written compilations of laws emerged from this movement, the Body of Liberties of 1641 and the Code of 1648. Neither code includes a prohibition against incestuous marriages. Interestingly, in the first draft of a written code of laws, which was never enacted into law, John Cotton directly drew on the Old Testament and required the death penalty in cases of blasphemy, idolatry, witchcraft, murder, adultery, sodomy, bestiality, incest and others. One of the reasons given why his draft was never enacted was that “many of its capital provisions were thought too severe.” Upon rejection of Cotton’s draft, Nathaniel Ward’s subsequent draft was eventually edited and formatted into 100 laws, referred to as the Body of Liberties. The Body of Liberties included capital crimes, which directly referenced the Old Testament, and were based on Cotton’s original draft. Idolatry, witchcraft, blasphemy, murder, bestiality, adultery, and more are all included as capital crimes. Incest was not mentioned in the Body of Liberties, even though both the previous draft and the Bible provided capital punishment for incest; the Body of Liberties even cited the Bible within its text as support for its other capital laws.
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< | Nor does the later written code, the Code of 1648 include a prohibition on incestuous marriages. The Code of 1648 is plainly and rationally written so that anyone could understand it; its form resembles a sermon. It was meant to be comprehensive and therefore included the majority of the provisions of the Body of Liberties, those laws passed between 1641 and 1648, as well as new laws. Incest was not included in the Code, despite the Code's focus on upright and moral conduct.
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> | Nor does the later written code, the Code of 1648 include a prohibition on incestuous marriages. The Code of 1648 is plainly and rationally written so that anyone could understand it; its form resembles a sermon. | | | | |
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< | With respect to punishment, the Code of 1648 follows the principle that the government cannot take someone’s life unless God explicitly allowed for it in the Bible. Therefore, when the Code addressed capital crimes, it is not surprising that it cited directly to the Old Testament to provide capital punishment for idolatry, witchcraft, blasphemy, bestiality, sodomy, adultery, rape, and more. Even when the Bible allowed for the death penalty, the colonists were sometimes still reluctant to use it and instead provided for more moderate punishments. And when they did allow for the death penalty in law, they did not use it in practice: in reality, there were few convictions under any of the capital laws. What is odd is that incest was not included in the list of capital crimes in the Code of 1648 even though the Bible allows for it, nor is a more moderate punishment included for incest. Incest was simply not mentioned in the 1648 Code at all.
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- No, I didn't say its form resembles a sermon; that would be self-evidently untrue.
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< | If neither the Body of Liberties nor the Code of 1648 included a law banning incest, was incest still prohibited by law? Yes, Massachusetts court decisions and statutes, both influenced by the Bible, forbade incest. On May 13, 1670, the Court of Assistants specifically addressed whether a man might marry his wife’s sister (once his wife was dead) and held that it was unlawful for a man to do so. This decision does not appear to be based on a case, but instead appears to be the court answering a question submitted to it. Two weeks later, on May 31, 1670, there is another court record in which the court addressed a submitted question and held that it was unlawful for a man to marry his first wife’s natural sister. As the records come from two different editions of court records, it is unclear if the court twice addressed the same question, with the same result, or if there was some confusion as to the exact date when the court addressed the issue. Whether the court addressed the issue twice, or reiterated its original decision, clearly marrying one’s wife sister was considered unlawful. The court never addressed whether marriage with a first cousin was permissible or not, nor did it explicitly address other relationships of affinity outside of specific cases.
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> | It was meant to be comprehensive and therefore included the majority of the provisions of the Body of Liberties, those laws passed between 1641 and 1648, as well as new laws. Incest was not included in the Code, despite the Code's focus on upright and moral conduct.
- Are you sure? Perhaps you mean there is no article entitled "Incest"?
With respect to punishment, the Code of 1648 follows the principle that the government cannot take someone’s life unless God explicitly allowed for it in the Bible. Therefore, when the Code addressed capital crimes, it is not surprising that it cited directly to the Old Testament to provide capital punishment for idolatry, witchcraft, blasphemy, bestiality, sodomy, adultery, rape, and more.
- This isn't two sentences, and what I said is no more than the same inference you've just given, from the same source. I did not of course imply that any god wrote any part of the Old Testament, or that there is a god of any kind anywhere, none of which I believe and none of which I would say. I referred to the beliefs of others on those points, and did so--as the sound recording reveals--using irony, which is distinctively human and of which omnipotence is incapable.
Even when the Bible allowed for the death penalty, the colonists were sometimes still reluctant to use it and instead provided for more moderate punishments. And when they did allow for the death penalty in law, they did not use it in practice: in reality, there were few convictions under any of the capital laws. What is odd is that incest was not included in the list of capital crimes in the Code of 1648 even though the Bible allows for it, | | | | |
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< | More than twenty years later, in 1692, the General Court or Assembly of Massachusetts Bay Colony passed the first actual statute addressing incest. The statute, “An Act, For the punishing of Capital Offenders,” included incest as one of several felonies that merited capital punishment. Additional capital offenses included in the act were idolatry, witchcraft, blasphemy, high treason, murder, poisoning, concealment of the death of a bastard child, sodomy, bestiality, rape, arson, and piracy. With respect to incest, the act expressly included a citation in the margin to Leviticus 20:11,12. Incest is the only capital crime in the act where a citation to the Bible is included. The act’s text regarding incest is as follows: “If any Persons commit Incest in any of the particular instances, made capital by the Law of God, they shall be put to Death.” It is interesting that the law not only cited to Leviticus in the margins, but the text of the act itself cited to the Law of God. Evidently, the Bible heavily influenced passing the incest prohibition, as it determined which degrees were forbidden. It is unclear if marriages between first cousins and marriages with a deceased wife’s sister would have been allowed under this statute, as the Biblical text is not explicit with respect to these relationships. However, the issue is moot, as this act never officially became law.
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- Really? Would you consider it equally "odd" that they didn't include a similar punishment for having sex with a woman during her menstrual period? Surely you can recognize the logical error in confusing necessary with sufficient conditions.
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< | England was displeased with this law because of its use of the death penalty for crimes for which the English did not impose the death penalty. In August 1695, the Court at Whitehall, namely the Lord Justices and Privy Council, addressed several laws that Massachusetts Bay Colony had passed, including “An Act, For the punishing of Capital Offenders.” The Lord Justices, after consulting with His Majesty’s Privy Council, “thought fit to signify Their Disapprobation and Disallowance of” these laws. These laws were therefore “repealed and declared void and of none Effect.” Massachusetts clearly heeded the Privy’s Council disallowance of the Capital Offenders act, as, according to a memorandum included in the copy of repealed acts, the colony responded to the repealed acts by passing several other acts to address many of the crimes that were included in the Capital Offender Act. For example, the colony passed individual acts to address high treason, murdering bastard children, murder, and rape. The inclusion of this memorandum makes it unclear if the Privy Council approved of these newly passed acts or was merely recording that they were passed. While an act to ban incest is not included in the memorandum of those laws passed in response to the repeal of the Capital Offenders Act, the Massachusetts General Court soon passed an additional statute specifically to address incestuous marriages.
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> | nor is a more moderate punishment included for incest. Incest was simply not mentioned in the 1648 Code at all. | | | | |
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< | The Great and General Court or Assembly of Massachusetts then passed “An Act to prevent Incestuous Marriages” on May 29, 1695. According to the dates of this act and the order repealing the first act, it seems that the repeal (in August 1695) happened after the new incest act was passed (in May 1695). One possible explanation for that is that time frame the repeal of the first act happened before the second act was passed, but the repeal was not officially recorded until after it was passed. Howard, the author of A History of Matrimonial Institutions, suggests there was a “Letter from the Privy Council,” which explained why the Capital Offender act was repealed; perhaps that letter arrived earlier. In any event, regardless of the dates, the later act regulating incestuous marriages became the official law of the colony. The act specifically refused to determine the breadth of the Biblical commandment with respect to incestuous marriages and served only to prevent confusion. It then listed the prohibited degrees within which a man may not marry, including several relationships of affinity. While the act specifically forbade a man from marrying his brother's wife or his wife's sister, it did not prohibit marriages between first cousins. Any marriage that was within the included prohibited degrees was void, and all children resulting from such marriages were unable to inherit.
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- Unless it was merely unnecessary to deal with it outside the context of unlawful carnal behaviors otherwise forbidden. You need to explain why you know that's not the solution to the "mystery."
If neither the Body of Liberties nor the Code of 1648 included a law banning incest, was incest still prohibited by law? Yes, Massachusetts court decisions and statutes, both influenced by the Bible, forbade incest. On May 13, 1670, the Court of Assistants specifically addressed whether a man might marry his wife’s sister (once his wife was dead) and held that it was unlawful for a man to do so. This decision does not appear to be based on a case, but instead appears to be the court answering a question submitted to it. Two weeks later, on May 31, 1670, there is another court record in which the court addressed a submitted question and held that it was unlawful for a man to marry his first wife’s natural sister. As the records come from two different editions of court records, it is unclear if the court twice addressed the same question, with the same result, or if there was some confusion as to the exact date when the court addressed the issue. Whether the court addressed the issue twice, or reiterated its original decision, clearly marrying one’s wife sister was considered unlawful. The court never addressed whether marriage with a first cousin was permissible or not, nor did it explicitly address other relationships of affinity outside of specific cases.
- But a question of marriage law and the prohibition of incestuous conduct aren't the same thing to us as lawyers, and you haven't showed why conflating them is any more appropriate in your investigation of their legal system than it would be in ours.
More than twenty years later, in 1692, the General Court or Assembly of Massachusetts Bay Colony passed the first actual statute addressing incest. The statute, “An Act, For the punishing of Capital Offenders,” included incest as one of several felonies that merited capital punishment. Additional capital offenses included in the act were idolatry, witchcraft, blasphemy, high treason, murder, poisoning, concealment of the death of a bastard child, sodomy, bestiality, rape, arson, and piracy.
- Don't you have to explain the significance of the date? Surely the whole point is that this is not the same government whose laws you were previously discussing. Without that information, put into correct context, you're mystifying the reader unnecessarily, while also losing the opportunity at last to gain some traction on the uncertainty you've been expressing in prior grafs.
With respect to incest, the act expressly included a citation in the margin to Leviticus 20:11,12. Incest is the only capital crime in the act where a citation to the Bible is included. The act’s text regarding incest is as follows: “If any Persons commit Incest in any of the particular instances, made capital by the Law of God, they shall be put to Death.” It is interesting that the law not only cited to Leviticus in the margins, but the text of the act itself cited to the Law of God. Evidently, the Bible heavily influenced passing the incest prohibition, as it determined which degrees were forbidden. It is unclear if marriages between first cousins and marriages with a deceased wife’s sister would have been allowed under this statute, as the Biblical text is not explicit with respect to these relationships. However, the issue is moot, as this act never officially became law.
England was displeased with this law
- An absurd statement. "England" had no opinion whatever. The relevant governmental process, review by the Privy Council, resulted in an early example of a more general proposition: colonial legislatures could not make capital what was not capital under English law. So you could have dealt with this point in a sentence, and provided a better context allowing the reader to unerstand that this fate of the legislation was in no way exceptional.
because of its use of the death penalty for crimes for which the English did not impose the death penalty. In August 1695, the Court at Whitehall, namely the Lord Justices and Privy Council, addressed several laws that Massachusetts Bay Colony had passed, including “An Act, For the punishing of Capital Offenders.” The Lord Justices, after consulting with His Majesty’s Privy Council, “thought fit to signify Their Disapprobation and Disallowance of” these laws. These laws were therefore “repealed and declared void and of none Effect.” Massachusetts clearly heeded the Privy’s Council disallowance of the Capital Offenders act, as, according to a memorandum included in the copy of repealed acts, the colony responded to the repealed acts by passing several other acts to address many of the crimes that were included in the Capital Offender Act. For example, the colony passed individual acts to address high treason, murdering bastard children, murder, and rape. The inclusion of this memorandum makes it unclear if the Privy Council approved of these newly passed acts or was merely recording that they were passed. While an act to ban incest is not included in the memorandum of those laws passed in response to the repeal of the Capital Offenders Act, the Massachusetts General Court soon passed an additional statute specifically to address incestuous marriages.
The Great and General Court or Assembly of Massachusetts then passed “An Act to prevent Incestuous Marriages” on May 29, 1695. According to the dates of this act and the order repealing the first act, it seems that the repeal (in August 1695) happened after the new incest act was passed (in May 1695). One possible explanation for that is that time frame the repeal of the first act happened before the second act was passed, but the repeal was not officially recorded until after it was passed. Howard, the author of A History of Matrimonial Institutions, suggests there was a “Letter from the Privy Council,” which explained why the Capital Offender act was repealed; perhaps that letter arrived earlier.
- Whether a Privy Council document did or didn't exist isn't a matter of conjecture, it's a question to which you can give an answer. Relying solely upon a comment in a secondary source makes no sense here. Nor do you need to be worrying a mystery. The two issues, as I keep trying to point out, are separate. Marriage law and criminal regulation of sexual misconduct aren't confuted by the legal system, and shouldn't be confuted in historical narrative either.
In any event, regardless of the dates, the later act regulating incestuous marriages became the official law of the colony. The act specifically refused to determine the breadth of the Biblical commandment with respect to incestuous marriages and served only to prevent confusion. It then listed the prohibited degrees within which a man may not marry, including several relationships of affinity. While the act specifically forbade a man from marrying his brother's wife or his wife's sister, it did not prohibit marriages between first cousins. Any marriage that was within the included prohibited degrees was void, and all children resulting from such marriages were unable to inherit.
- Hadn't you better know what the English law is, in order to understand what the Massachusetts legislators are trying to accomplish? Shouldn't your task be to explain to the reader what the reader will not know she needs to learn? Here you are treating statutory enactments that are related to a fairly complex background in two jurisdictions, but you're not explaining to the reader how that background contributed to the legislator's understanding of what needed to be enacted, as well as what could not or should not be enacted, and what considerations motivated the relevant details of the legislation, so far as you can reconstruct them. The secondary sources you've consulted didn't equip you, so you're not equipping your readers, which is almost exactly a definition of how legal history should not be done.
| | | In contrast to the first act that addressed incest, this
act does not provide the death penalty. Rather, those who are convicted of marrying or having carnal relations within the prohibited degrees were to be whipped, forty lashes at the most. All convicted persons were also “for ever after [to] wear a Capital I of two inches long” on the outside of their garments; failure to wear the letter on their clothing subjected them to an additional fifteen lashes. Finally, those couples whose marriage was void because of this statute could no longer cohabit together as man and wife.
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| | | Based on these court records, it does not appear that incest was a crime that happened often. For example, in the Massachusetts Court of Assistants records covering 1630 – 1692, every crime that was committed during that time period is included in the index. Incest is not mentioned at all. It appears that there were only three cases involving incest during the relevant time period: Elisabeth and Nicholas Maning, Samuel and Rebekah Newton, and Hannah and Josiah Owen. All three cases pre-date the acts that were passed by the legislature, so the only “law” in effect at the time was the court’s general prohibition against such marriages.
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< | In the first case, from 1683, Elisabeth Maning petitioned for divorce from her husband Nicholas because their marriage was incestuous. The court granted the divorce because Nicholas “was guilty of Incestuous practices with his sisters of which they were convicted and punished.” It is unclear what exactly was incestuous about their marriage. It does not appear that Nicholas and Elisabeth were within a forbidden degree of relationship; rather, it seems that the incest involved Nicholas and his sisters. There is no other court record that references Nicholas or his sisters being convicted of incestuous practices. The record states that Nicholas fled the jurisdiction to avoid punishment. He had not been financially supporting Elisabeth and even renounced her as his wife – “he will not owne her for his wife or haue any thing to doe with her.” The court therefore granted Elisabeth’s divorce petition. Based on the hazy details of the incest involved in this case, it seems that Nicholas’ incestuous practices were not the main grounds for divorce, but rather, the divorce was granted because he deserted his wife when he fled the jurisdiction to avoid punishment. In a chart delineating cases of divorce in Massachusetts between 1639 and 1692, Howard lists the cause of the Maning’s divorce as being both incest and desertion. It is the only case during this time period where “incest” was the grounds for divorce, as opposed to “affinity,” which is the grounds for divorce in the other two instances. Interestingly, Howard notes that the Maning’s marriage was dissolved, not voided, but if the court had considered incest to be the primary reason for divorce, the marriage should have been voided, as it was in the other two cases. Unfortunately, the court record does not provide enough detail to determine the incestuous relationship involved in the case.
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> | In the first case, from 1683, Elisabeth Maning petitioned for divorce from her husband Nicholas because their marriage was incestuous. The court granted the divorce because Nicholas “was guilty of Incestuous practices with his sisters of which they were convicted and punished.” It is unclear what exactly was incestuous about their marriage. It does not appear that Nicholas and Elisabeth were within a forbidden degree of relationship; rather, it seems that the incest involved Nicholas and his sisters.
- A pretty clear example of further confusion about the relation between marriage law and sexual misconduct law. Hadn't you better look again at the divorce petition to see what reason is given and what the text means?
There is no other court record that references Nicholas or his sisters being convicted of incestuous practices.
- I'm sure you haven't looked far and wide yourself, so as to be able to report the non-existence of the record as a fact you have verified. Instead, it would be more useful to state where you have looked in order to not-find the records, or on whose authority their non-existence can be confidently asserted.
The record states that Nicholas fled the jurisdiction to avoid punishment. He had not been financially supporting Elisabeth and even renounced her as his wife – “he will not owne her for his wife or haue any thing to doe with her.” The court therefore granted Elisabeth’s divorce petition. Based on the hazy details of the incest involved in this case, it seems that Nicholas’ incestuous practices were not the main grounds for divorce, but rather, the divorce was granted because he deserted his wife when he fled the jurisdiction to avoid punishment. In a chart delineating cases of divorce in Massachusetts between 1639 and 1692, Howard lists the cause of the Maning’s divorce as being both incest and desertion. It is the only case during this time period where “incest” was the grounds for divorce, as opposed to “affinity,” which is the grounds for divorce in the other two instances. Interestingly, Howard notes that the Maning’s marriage was dissolved, not voided, but if the court had considered incest to be the primary reason for divorce, the marriage should have been voided, as it was in the other two cases. Unfortunately, the court record does not provide enough detail to determine the incestuous relationship involved in the case. | | | In the next case involving incest, dating to March 17, 1690/1, it appears that the court itself, “being informed,” took action – the record does not seem to be an action (for divorce, e.g.) brought by one party or another. According to the record, Samuel Newton married Rebekah, his late uncle’s widow, and had two children with her. Both Samuel and Rebekah confessed that the account offered was the truth. The court ruled that their marriage was forbidden by the law of England and the laws of God because they were related by affinity. The court did not cite its own [http://emoglen.law.columbia.edu/twiki/pub/AmLegalHist/IncestInMass/Ct_Records,_Vol_3.pdf 1670 precedent]] that a man may not marry his deceased wife's sister, probably because this case involved a different relationships of affinity; instead the court cited the Law of England and the Laws of God. Since their relationship was incestuous, the court forbade them from living together or acting as husband and wife in the future. The marriage was void. The couple faced “the severest penalty” if they did not comply, although the court did not specify the exact penalty.
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- The exact penalty for not complying with a court order?
| | | Finally, in the case of Hannah Owen, also from 1691, the court again voided the marriage because of the relationship of affinity between the couple. On Christmas Day, Hannah Owen was sent to prison in Boston for marrying Josiah Owen, her dead husband’s brother. She appeared and confessed to be Josiah’s brother’s widow. Because that relationship was forbidden by “the Word of God & Statutes of England,” the court held that she and Josiah were no longer allowed to cohabit or be considered man and wife. She was also required to “make a publick [sic] acknowledgement of her sin & evil before the Congregation.” Their marriage was thus voided.
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- Why is she being sent to prison? And would you help the reader know what to think about the fact that the Court's again relying on an English statute rather than a local one?
| | | Again, the court did not cite its earlier answer from 1670 but instead relied on the Word of God and English law, as its 1670 precedent does not address this relationship of affinity either. Furthermore, although the court cited the laws of God as justification for voiding the Owens' marriage, technically the court was strictly interpreting the Word of God to prohibit a relationship that the Bible actually sanctioned. While uncovering the nakedness of one’s brother’s wife is prohibited, and will result in being childless, once the man has died and has left behind a childless widow, it is actually required that his brother marry her. There seems to be a distinction in the Bible, arguably applicable to a wife’s sister as well, between those spouses who are alive and those who are deceased.
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- Are you asserting that a Massachusetts Court's meaning for the phrase "the Word of God" in 1691 is coextensive with the law of the Jews according to the authors of Leviticus and Deuteronomy?
| | | A man marrying his dead brother’s wife is the same degree of relationship as a woman marrying her dead husband’s brother, but the 1695 (future) statute does not expressly prohibit a woman from marrying her husband’s brother as the statute covers whom men, not women, may marry. According to Owen’s case, marrying one’s husband’s brother was already unlawful in 1691 even though it was not expressly recognized four years later nor was it specifically considered unlawful in 1670.
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< | It is confusing that Hannah Owen was the one brought before the court to be punished, when the future incest statute addresses whom men may or may not marry, and the issue of that era was whether men could marry their wife’s sister. That Hannah should be punished for her crime was common, but generally both men and women were punished for incestuous marriages. There is no mention of Josiah Owen ever being brought before court and sent to jail for marrying his dead brother’s wife, even though Hannah was sent to jail for marrying her dead husband's brother.
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> | It is confusing that Hannah Owen was the one brought before the court to be punished, when the future incest statute addresses whom men may or may not marry, and the issue of that era was whether men could marry their wife’s sister.
- Are you telling the reader to be confused because a situation happening at one moment in the past is different from the situation regulated by a future statute? That's confusing advice about when to be confused. I don't think your analytical approach here has much to recommend it.
That Hannah should be punished for her crime was common, but generally both men and women were punished for incestuous marriages. There is no mention of Josiah Owen ever being brought before court and sent to jail for marrying his dead brother’s wife, even though Hannah was sent to jail for marrying her dead husband's brother. | | | From the court records of the colonial government and the acts passed by the colonial legislature, a consensus emerges that it was unlawful for a man to marry a woman to whom he was related by affinity. As early as 1670, the colonial government addressed one such relationship, i.e. whether a man could marry his dead wife's sister, and deemed them unlawful. The court records and statutes also demonstrate that other relationships of affinity were prohibited in marriage, including marriage between a man and his dead uncle's widow as well as a marriage between a woman and her dead husband's brother. The civil government never addressed marriage between first cousins, thus presumably making them lawful. While there was some debate as to the appropriate punishment for incestuous marriages, ultimately, the colonial legislature determined that corporal, not capital, punishment was appropriate, in addition to the restriction on future cohabitation. The church, which was very influential during this time period, had similar views opposing marriage within relationships of affinity but further believed first cousins should not marry. The church’s views undoubtedly influenced the civil government in formulating the colony’s laws and in deciding cases, although the church's influence was limited to the extent that the colonial government never addressed marriage between first cousins.
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- You need to cut this section very hard and focus it clearly. The analytic structure is wobbly and the wrong degrees of explanation are used: sometimes too little, sometimes too much. In the end, you have failed to show that there is a topic here. Rather there appear to be some matters of policing sexual misconduct, some issues of harmonization with English marriage law, and almost nothing that can't be covered in three or four paragraphs.
| | | III. The Church’s View of Incest | | | Both Cotton Mather and Sewall refer to incest in a more general sense, without explaining the specifics of their reference, also believing these general instances of incest were problematic. Towards the end of Sewall’s diary entry from April 8, 1702, Sewall refers to Mrs. Thacher, who, on her deathbed, was troubled about her marriage to her first husband Mr. Kemp because there was “some smell of Relation between them.” Sewall does not explain what he means by this, or if Mrs. Thacher specified her concern any further. Likewise, in Magnalia Christi Americana, Mather speaks of two situations where incest is a valid ground for divorce (which a civil magistrate handles). First of all, if “there be incest in a marriage,” divorce was appropriate. Presumably, Mather would consider this ground to cover both marriages within a degree of affinity, including marriage with a deceased wife’s sister, and marriages between first cousins, as Mather considered these types of marriages to be incestuous. Also, divorce was appropriate where a person had sex before marriage with someone who was related to the person’s current spouse. Between 1639 and 1692, Massachusetts had forty divorce actions, including only one action brought because of incest and two actions brought because of affinity, all of which were discussed above. The more common causes of divorce were adultery and desertion. It appears that divorce or void marriages as a result of incest or affinity did not often happen. People seemed therefore to have heeded Sewall and Mather’s advice and avoided any marriage that could have been potentially problematic. Interestingly, with respect to divorce, Mather cited the degrees made incestuous by the law of God, not the law of the colony, as those that should determine who is “related” for purposes of granting a divorce. Ultimately, the ministers expressed their views based on what they believed was necessary to comply with divine law. The colonial law only mattered to the extent it followed Biblical law; otherwise, colonial law was not the Puritan colonists' primary concern.
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- Second verse, same as the first. You've got to get rid of the little potted biographies, the long work-ups on the diaries, the palling around with "Increase" and "Cotton" and so forth. You need to be crisp: marriage is a civil institution in colonial Massachusetts, divines commenting on marriage law are not addressing specifically local legal questions, etc. Once again, a few paragraphs are sufficient, if you think carefully about the precise points you are trying to make and the crucial context an inexperienced reader would require put in the most concentrated form.
| | | IV. Conclusion
While incest was not a common topic of discussion in colonial Massachusetts, when it was addressed, it was taken very seriously because of the important role of marriage in society and the fact that marriage was a form of worshipping God. Marriage between first cousins was never regulated by the court nor the colonial legislature; only the church viewed its lawfulness as doubtful, and ministers and devout Puritans therefore discouraged such marriages. Both the colonial government and the church agreed that marriage within a relationship of affinity, especially between a man and his dead wife’s sister, was unlawful. While marriage between a woman and her dead husband’s brother was not explicitly forbidden, it too was considered unlawful by both the colonial government and the church. And when a forbidden marriage occurred, capital punishment was deemed unacceptable by the English Privy Council; instead, the colonial legislature decided corporal punishment, wearing a capital “I” on one’s clothing, and the couple’s separation were appropriate punishments. In a society where Church and State blurred together, where the colony was founded to serve God, incest was considered a crime, not a sin. The colony’s positive law existed in part to specify how to serve God properly, and it is evident that the church and the Bible influenced the laws of the colonial government and how the colony treated incest. | |
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- The conclusion, though even this recitation is blowsy, and the information necessary to find it, along with the context necessary to understand it (which you have left in large measure unwritten), would be a good next version. From there, if expansion were necessary you would at least be doing so from a compact and manageable base.
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The Church - Cotton and Increase Mather; Samuel Sewall |
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