Incest in Colonial Massachusetts, 1636-1710

In response to Professor Moglen’s comments, please find a new version of this paper below.

I. Introduction and Historical Context

Colonial Massachusetts maintained a civil government system that was separate from the Puritan church, and yet, because of the colonists’ strong Puritan beliefs, the church exercised enormous influence on the colonial government’s laws and policies. The result of this societal organization was the blurring of church of state; of crimes and sins. Incest is an example of an offense that was considered a crime because it was a sin. At the outset, I should clarify that “incest” refers to both incestuous marriages and criminal sexual misconduct. The majority of this paper will address incestuous marriages, thereby tracking the primary sources’ focus, but some attention will also be paid to sexual misconduct as well. Both forms of incest – marriage and sexual misconduct – were rare in colonial Massachusetts. 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 (in either form) is not mentioned. See John Noble, Ed., 2 Records of the Court of Assistants of the Colony of the Massachusetts Bay 173-185 (Boston, 1901) (1630-1692).

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.

II. The Colonial Government’s Treatment of Incest

a. Incestuous Marriages

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. Id. 13, 19. 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. Despite Massachusetts being an English colony, the colonial government still had authority to pass laws regulating incestuous marriages. Lawes and Libertyes Concerning the Inhabitants of the Massachusets (1648) (hereinafter Code of 1648); Haskins 189-190. The colonial incestuous-marriage laws were heavily influenced by Biblical prohibitions and existing English law. The Bible prohibits certain relationships of affinity, although it does not prohibit cousins from marrying. Leviticus 18:6-18.(1) In England, in response to the Reformation, the legislature passed a new law to address the appropriate degrees of relationship, given that there was no longer access to papal dispensations (which allowed people within forbidden degrees to marry anyway). Sir William Holdsworth, 4 A History of English Law 490-491 (2007). In the new act of 1540, England simplified its law to prohibit only those marriages that were forbidden by “God’s law,” as established in the Bible. See Leviticus 18:6-18; English Parliament, An Act concerning precontracts of marriage and touching degrees of consanguinity (1540). In practice, the specific prohibited degrees in England were based on an archbishop’s table created in 1563. See 1 Documentary Annals of the Reformed Church of England 316-320 (1563); R.H. Helmholz, 1 The Oxford History of the Laws of England 544 (2004). England further clarified the forbidden degrees of marriage (and carnal knowledge) in its 1650 “Act for Suppressing the Detestable Sins of Incest, Adultery, and Fornication.”

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.

b. Sexual Misconduct

Neither the Body of Liberties, the Code of 1648, nor the Court of Assistant’s 1670 precedent addressed incestuous sexual misconduct. In a 1683 Court of Assistants case that did address such unlawful conduct, Elisabeth Maning petitioned for divorce from her husband Nicholas, which the court granted because Nicholas “was guilty of Incestuous practices with his sisters of which they were convicted and punished.” 1 Court Records 240. In a chart delineating cases of divorce in Massachusetts between 1639 and 1692, the cause of the Maning’s divorce was listed as being both incest and desertion. 2 Howard 333. It is the only case during this time period, out of the forty divorce actions brought, where “incest” was the grounds for divorce, as opposed to “affinity,” which was the grounds for divorce in the cases of the Newtons and the Owens. Records from Salem and Ipswich courts provide further detail on the incestuous misconduct by Nicholas Maning and his two sisters, Anstis Maning and Margerett Palfree. Their case was heard in two different Quarterly Court sessions, the first on November 30, 1680, in Salem and the second on March 29, 1681, in Ipswich. 8 Records and Files of the Quarterly Courts of Essex County 48, 87-89 (1680-1683).(4) As early as 1680, then, incestuous sexual misconduct was clearly prohibited in the colony, relying on both English statutes and God’s law. In England, for example, a 1650 statute specifically banned “carnal knowledge of the body” within specified relationships of affinity and consanguinity.

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.

III. The Church's View of Incest

a. Incestuous Marriages

As discussed, the colonial government regulated incestuous marriages, and the church influenced those regulations because of the role Puritan beliefs played in society. Perhaps because incest was not included in either of the written codes and there was no valid incest statute until 1695, there seemed to be some question as to whether incest was prohibited, and if it was, what relationships were forbidden. Ministers and devout Puritans therefore addressed incestuous marriages and supported the colonial government’s view that marriages based on relationships of affinity were unlawful, heavily relying on Biblical prohibitions and English law. See Increase Mather, The Answer of Several Ministers in and near Boston, to that Case of Conscience, Whether it is Lawful For a Man to Marry his Wives Own Sister? (hereinafter I. Mather’s Answer).; Cotton Mather, 2 Magnalia Christi Americana 252 (Silas Andrus & Son, 1853) (1620-1698) (hereinafter C. Mather, Marriage); Samuel Sewall, 7 DIARY 398 (Massachusetts Historical Society, fifth series, 1882) (1714-1729).

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.

b. Sexual Misconduct

Divorce, like marriage, was the civil government’s responsibility, and yet, the church still weighed in as to the valid grounds for divorce. Not only was divorce appropriate if “there be incest in a marriage,” but also if a person had sex before marriage with someone who was related to the person’s current spouse, a divorce was granted. C. Mather, Marriage 253. Interestingly, Cotton 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. Religious figures expressed their views, then, based on what they believed was necessary to comply with divine law. The colonial law only mattered to the extent it followed Biblical law.

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 worshiping God. Both the colonial government and the church agreed, relying on English and Biblical law, that marriage within a relationship of affinity, especially between a man and his dead wife’s sister, was unlawful. 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. Incestuous sexual misconduct was also prohibited; first by relying on English law and then through the colony’s own express statutes. In a society where Church and State blurred together, where the colony was founded to serve God, incest was not only a sin but a crime as well. The colony’s law existed in part to specify how to serve God properly, and it is evident that English law and Puritan beliefs (based on the Bible) influenced the laws of the colonial government and how the colony treated incest.

Please feel free to add comments, critiques, and/or suggestions.

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).

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).