Incest in Colonial Massachusetts, 1636-1710

In the English system, religious ecclesiastical courts had jurisdiction over marriage. Massachusetts broke with England, as marriage in colonial Massachusetts was a civil matter. While marriage was a civil matter in colonial Massachusetts, both existing English law and Puritan beliefs largely dictated what incestuous-marriage laws the civil government adopted. Reflecting the church’s influential role in colonial society, the colonial government and the church’s view of incest were very similar, with the only difference being that the church not only believed relationships of affinity should be banned, but marriage between cousins should also have been prohibited. Both the civil government and the church agreed that sexual relations within a certain degree of affinity or consanguinity were prohibited.

How colonial Massachusetts treated incest (in both its forms) was heavily influenced by Puritanism, which was a driving force in the establishment of the Massachusetts Bay Colony. The colony relied on a theory of social covenant to demand that everyone “live righteously and according to God’s word.” George Lee Haskins, Law and Authority in Early Massachusetts 13, 19, 25 (Archon Books 1968). The Puritan church was not a hierarchical organization based on doctrine; rather, everyone’s outward conduct and daily actions were supposed to reflect God’s word: “The Puritan conception of the church as a group of professed believers, held together by their covenant to walk in the ways of godliness, was one of the deepest and most persistent influences on the life and institutions of the colony.” Id. at 93. 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. Id. at 85. While Puritan ideals and the Puritan church therefore both checked personal conduct, when the colonists failed to live according to God’s word, it was the civil government that had jurisdiction to punish religious crimes, such as incest, as well as to perform marriages and grant divorces. Id. at 62-63, 89.

While English and Biblical influence were evident in the Body of Liberties of 1641 and the Code of 1648, the two main codes of law written in Massachusetts, neither code includes a prohibition against incestuous marriages. Rather, court decisions and a statute demonstrate that incestuous marriages were prohibited in colonial Massachusetts. On May 13, 1670, the Court of Assistants, the highest court of original jurisdiction for criminal and civil matters that existed in the colony, 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.(2) This decision does not appear to be based on a case, but instead appears to be the court answering a question submitted to it. John Noble, ed., 1 Records of the Court of Assistants of the Colony of the Massachusetts Bay x (Boston, 1901) (1630-1692) (hereinafter 1 Court Records); John F. Cronin, ed., 3 Records of the Court of Assistants of the Colony of the Massachusetts Bay 202 (Boston, 1928) (1630-1692). It appears that there were only two specific cases involving incestuous marriages during the relevant time period: Samuel and Rebekah Newton, and Hannah and Josiah Owen. On March 17, 1690/1, the court voided the marriage of Samuel and Rebekah Newton because Rebekah was Samuel’s late uncle’s widow. 1 Court Records 342. In 1691, in the case of Hannah Owen, the court again voided a marriage because of a relationship of affinity between the couple – Hannah had married her dead husband’s brother.(3) Id. at 361; George Elliott Howard, 2 A History of Matrimonial Institutions 333 (University of Chicago Press 1904). In both cases, the court did not cite its own 1670 precedent but instead voided the marriages under “the Word of God & Statutes of England.” 1 Court Records 342, 361. It is likely that the court relied on English and Biblical precedent because its 1670 precedent does not address these specific relationships of affinity, as it focuses on a marriage between a man and his dead wife’s sister. Additionally, in the absence of a statute that specifically addressed this relationship of affinity, it was not uncommon for the Massachusetts court to rely on English law in deciding cases. Id. at vii.

In addition to the court records discussed above, under authority of the new 1691 charter, the Great and General Court or Assembly of Massachusetts passed “An Act to prevent Incestuous Marriages” on May 29, 1695, which became the official law of the colony. Order of their Excellencies the Lord Justices in Council, confirming several Acts and Laws of the Province of the Massachusetts Bay, at 3, November 24, 1698. The act prohibited the exact same relationships of affinity as English law provided for in its 1563 table, illustrating English law’s influence on the colony. 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.

Notes

1 : Leviticus 20 includes the punishments appropriate for those who engage in incestuous marriages.

2 : 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. Nathaniel B. Shurtleff, ed., 4 Records of the Governor and Company of the Massachusetts Bay in New England 454 (Boston, 1854) (1661-1674).

3 : For an unofficial contemporaneous record of the Hannah Owen case, see Samuel Sewall, 5 DIARY 407 (Massachusetts Historical Society, fifth series, 1878) (1674-1700).

By 1692 (under a new charter), the General Court or Assembly of Massachusetts Bay Colony passed the first explicit colonial statute to address incest (in either form). The statute, “An Act, For the punishing of Capital Offenders,” included incest as one of several felonies that merited capital punishment. The act established that “[i]f any Persons commit Incest in any of the particular instances, made capital by the Law of God, they shall be put to Death.” Acts and Laws of the Massachusetts Bay Colony, An Act, For the punishing of Capital Offenders, 1692, at 24 (repealed 1695). The act expressly included a citation in the margin to Leviticus 20:11,12, two verses that address incestuous sexual misconduct, implying that this statute was passed to address sexual misconduct, not marriage. This act, however, never officially became law: the Privy Council in England, which reviewed colonial laws, disapproved of and repealed this act. Lord Justices, Copy of the Orders for Repealing Several Acts, at 2, 1695. Instead, the later 1695 “Act to prevent Incestuous Marriages,” discussed in the previous section, became law. It not only banned incestuous marriages but also prohibited “carnal copulation” within the listed degrees. Incestuous sexual misconduct was thus explicitly prohibited in colonial Massachusetts in 1695; before that point, the colony relied on English and Biblical law to prohibit such action.

Notes

4 : The witness testimony (from October 3, 1680, and December 3, 1680), however, is not publicly available. See Essex County Quarterly Court Records, property of the Supreme Judicial Court, Division of Archives and Records Preservation, on deposit at the Peabody Essex Museum, Salem, Mass., 30 November 1680, Vol. 6, unnumbered leaves. For a detailed discussion of the Maning incest prosecution, see Matthew Gartner, Hawthorne and the Fictions of Family History, in 22 Nathaniel Hawthorne Review, Frederick Newberry, ed., No. 2, 70-72 (Fall 1996).

The most common relationship of affinity at issue was that between a man and his deceased wife’s sister. In response to the actual question of whether it was lawful for a man to marry his wife’s own sister, Increase Mather, a well-known minister, was adamant in his position that it is unlawful for such marriages to take place because they were “utterly Unlawful, Incestuous, and an Hainous [sic] Sin in the Sight of God.” I. Mather’s Answer 4. Other relationships of affinity that the Puritan church also viewed as unlawful included a marriage between a woman and her dead husband’s brother. See Samuel Sewall, 1 Letter Book 408 (Massachusetts Historical Society, sixth series, 1886) (1686-1712) (hereinafter 1 Sewall Letter Book).

While the colonial government never expressly addressed marriages between cousins, presumably making these marriages lawful, the church strongly discouraged such marriages. See Cotton Mather, 2 Magnalia Christi Americana 267-68 (Silas Andrus & Son, 1853) (1620-1698) (hereinafter C. Mather, Cousins). Cotton Mather, a Harvard-educated minister who was Increase’s son, recognized that the Bible did not prohibit first cousins from marrying but still opposed such marriages, based on Biblical principles. Because there was no colonial or Biblical prohibition on such marriages, religious figures only recommended that the best course of action was to avoid marrying one’s cousin: a marriage between first cousins “may be very inexpedient; it borders as near as is possible to what is unlawful. There is no need of coming so near, while we have such a wide world before us.” C. Mather, Cousins 268; see also 1 Sewall Letter Book 291, 351-52. Ultimately, to be safe in God's eyes, first-cousin marriages should have been avoided even though the colonial government did not address these marriages.