Notes

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).

• 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.(10) 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.”(11) 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.”(12)

• 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.(13)

• 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.(14) An additional form of social control in Massachusetts was the family.(15) 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.(16) 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.(17) And while the couple had a duty to love each other, their highest love was reserved for God.(18) Puritanism required that a person’s thoughts and outward deeds serve God. (19) Marriage was a form of outward conduct, and as marriage was a covenanted relationship, marriage itself was a way to serve God.(20) 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.(21) 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.”(22)

• 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.(23) 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.(24) 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.(25) Incestuous marriages were therefore considered a crime, not a sin, to be regulated by the colonial government.

• 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.

Notes

10 : GEORGE LEE HASKINS, LAW AND AUTHORITY IN EARLY MASSACHUSETTS 25 (Archon Books 1968).

11 : Id. at 26.

12 : Id. at 13, 19.

13 : Id. at 85.

14 : Id. 61.

15 : Id. at 79, 82.

16 : Id. at 80; EDMUND S. MORGAN, THE PURITAN FAMILY 145 (Harper & Row, Publishers 1966).

17 : MORGAN 41-42.

18 : Id. at 47-48.

19 : HASKINS 13.

20 : American Legal History, Class Notes, September 18, 2009; HASKINS 19.

21 : MORGAN 59.

22 : HASKINS 149.

23 : Id. at 62-63.

24 : MORGAN 142; HASKINS at 78-79.

25 : HASKINS at 62-63, 89; see also Lawes and Libertyes Concerning the Inhabitants of the Massachusets (1648) (hereinafter Code of 1648).

• 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.(26) 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.(27) For example, the colonists departed from English law by having the civil government assume jurisdiction over marriage and divorce.(28) 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.(29) 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. (30) Massachusetts believed it had the first, only, and final say on its laws.(31) 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.(32)

English common law, English statutes, and English ecclesiastical law all influenced American law in the Bay Colony, but English law was not adopted outright.(33) On the contrary, the colonists carefully considered and selected the English law they wanted to enact.(34) The colonists had a similar mindset with respect to Biblical law: it served less as binding precedent and more as persuasive authority.(35) But that persuasive authority carried great weight, as ultimately, for a law to be valid, a man-made law had to comply with divine law.(36) The colony’s laws on incest reflect the characteristic influence of both English and Biblical law. As previously discussed, the colonial government was responsible for punishing ecclesiastical crimes, which was also the system employed in England.(37) And the laws on incest in England were based on the prohibitions found in the Bible, all of which influenced the laws that the Massachusetts Bay Colony ultimately adopted.

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.(38) Relationships between first cousins are not explicitly addressed.(39) 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.(40) 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.

• 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.(41) 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.(42) 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.(43) 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.(44) One of the reasons given why his draft was never enacted was that “many of its capital provisions were thought too severe.”(45) 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.(46) 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.(47) 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.(48)

Nor does the later written code, the Code of 1648 include a prohibition on incestuous marriages.(49) The Code of 1648 is plainly and rationally written so that anyone could understand it; its form resembles a sermon.(50)

• No, I didn't say its form resembles a sermon; that would be self-evidently untrue.

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.(51) Incest was not included in the Code, despite the Code's focus on upright and moral conduct.(52)

• 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.(53) 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.(54)

• 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.(55) 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.(56) 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,(57)

• 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.

nor is a more moderate punishment included for incest. Incest was simply not mentioned in the 1648 Code at all.

• 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.(58) This decision does not appear to be based on a case, but instead appears to be the court answering a question submitted to it.(59) 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.(60) 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.(61) 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.(62)

• 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.(63) Incest is the only capital crime in the act where a citation to the Bible is included.(64) 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.”(65) 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.(66) 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.”(67) The Lord Justices, after consulting with His Majesty’s Privy Council, “thought fit to signify Their Disapprobation and Disallowance of” these laws.(68) These laws were therefore “repealed and declared void and of none Effect.”(69) 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.(70) 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.(71) 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.(72)

• 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.(73) The act specifically refused to determine the breadth of the Biblical commandment with respect to incestuous marriages and served only to prevent confusion.(74) 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.(75) Any marriage that was within the included prohibited degrees was void, and all children resulting from such marriages were unable to inherit.(76)

• 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.(77) 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.(78) Finally, those couples whose marriage was void because of this statute could no longer cohabit together as man and wife.(79)

England was satisfied with the later act that specifically addressed incestuous marriages, and it remained in effect throughout the colonial era (and even became the law in New Hampshire and Connecticut, too). (80) On November 24, 1698, at Whitehall, England considered the Massachusetts Bay Colony laws passed between 1694 and 1697, and the Lord Justices of England, after consulting with the King’s Privy Council, approved those acts, probably because the incest statute no longer provided for the death penalty.(81) Thus, there was court and legislative support for preventing marriages with one’s deceased wife’s sister, but the court and legislature did not address, or even mention, marriages between first cousins.

The third and final phase of colonial law included a return to judge-made law, where judges decided cases based on the written laws.(82) The Court of Assistants, the source of these case records, was established under the authority of the 1628 charter.(83) The Court of Assistants addressed both civil and criminal matters, and, at the beginning, it exercised executive and legislative authority, as well. (84) Gradually, the court came to focus solely on judicial actions, forgoing the executive and legislative authority, so that by 1673, the court was only a judicial body.(85) It was the highest court of original jurisdiction for criminal and civil matters that existed in the colony.(86) The Court was governed by English Common Law, customs acquired by those trained in England, the charter limitation that all laws comply with English law, the Bible, the enactments of the General Court, and the advice of Church Elders.(87)

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.(88) Incest is not mentioned at all.(89) 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.

In the first case, from 1683, Elisabeth Maning petitioned for divorce from her husband Nicholas because their marriage was incestuous.(90) The court granted the divorce because Nicholas “was guilty of Incestuous practices with his sisters of which they were convicted and punished.”(91) 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.(92) 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.”(93) The court therefore granted Elisabeth’s divorce petition.(94) 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.(95) 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.(96) 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.(97) 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.(98) According to the record, Samuel Newton married Rebekah, his late uncle’s widow, and had two children with her.(99) Both Samuel and Rebekah confessed that the account offered was the truth.(100) The court ruled that their marriage was forbidden by the law of England and the laws of God because they were related by affinity.(101) 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.(102) The marriage was void.(103) The couple faced “the severest penalty” if they did not comply, although the court did not specify the exact penalty.(104)

• 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.(105) On Christmas Day, Hannah Owen was sent to prison in Boston for marrying Josiah Owen, her dead husband’s brother.(106) She appeared and confessed to be Josiah’s brother’s widow.(107) 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.(108) She was also required to “make a publick [sic] acknowledgement of her sin & evil before the Congregation.”(109) Their marriage was thus voided.(110)

• 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.(111) 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.(112) While uncovering the nakedness of one’s brother’s wife is prohibited,(113) and will result in being childless,(114) once the man has died and has left behind a childless widow, it is actually required that his brother marry her.(115) 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.(116)

• 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.(117) 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.(118)

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.

(119) 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.(120)

• 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.

Notes

26 : The Charter of the Colony of Massachusetts Bay of 1628, at 15; The Massachusetts Charter of 1691, at 79.

27 : HASKINS 189-190.

28 : Id. at 194-195.

29 : The Grounds for Revoking the Colonial Charter, June 4, 1683, at 24.

30 : Massachusetts Rejects the Jurisdiction of English Laws, September 20, 1676, at 18.

31 : Id.

32 : HASKINS 8, 193.

33 : Id. at 177, 179, 183, 186.

34 : Id. at 186.

35 : Id. at 162.

36 : Id. at 140.

37 : Id. at 90.

38 : Leviticus 18:6-18.

39 : See id.

40 : Leviticus 18:18.

41 , 82 : HASKINS 119.

42 , 56 : Id.

43 : See Body of Liberties of 1641, in William H. Whitmore, A Bibliographical Sketch of the Laws of the Massachusetts Colony (Rockwell and Churchill, 1890) (1630-1686); Code of 1648.

44 : HASKINS 124-125.

45 : Id. at 126.

46 : HASKINS 128.

47 : Body of Liberties, at 28.

48 : Id.. Leviticus 20 includes the punishments appropriate for those who engage in incestuous marriages. The death penalty is only appropriate when someone marries his step-mother or daughter-in-law; otherwise, excommunication or remaining childless is the appropriate punishment. Leviticus 20: 11-12, 17, 19-21.

49 : See Code of 1648.

50 : American Legal History, Class Notes, September 24, 2009.

51 : HASKINS 131, 136.

52 : See Code of 1648; HASKINS 139.

53 : American Legal History, Class Notes, September 24, 2009; HASKINS 152.

54 : HASKINS 145; see also Code of 1648, at 5-6.

55 : HASKINS 151-152.

57 : See Leviticus 20:11-12.

58 : JOHN F. CRONIN, ED., 3 RECORDS OF THE COURT OF ASSISTANTS OF THE COLONY OF THE MASSACHUSETTS BAY 202 (Boston, 1928) (1630-1692) (hereinafter 3 COURT RECORDS).

59 : See Id.

60 : NATHANIEL B. SHURTLEFF, ED., 4 RECORDS OF THE GOVERNOR AND COMPANY OF THE MASSACHUSETTS BAY IN NEW ENGLAND 454 (Boston, 1854) (1661-1674) (hereinafter 4 COURT RECORDS).

61 : Acts and Laws of the Massachusetts Bay Colony, An Act for the Punishing of Capital Offenders, 1692, at 21 (repealed 1695) (hereinafter Capital Offender Act).

62 : Id. at 21-25.

63 , 65 : Id. at 24.

64 : See Id. at 21-25.

66 : See GEORGE ELLIOTT HOWARD, 2 A HISTORY OF MATRIMONIAL INSTITUTIONS 177 (University of Chicago Press 1904).

67 : Lord Justices, Copy of the Orders for Repealing Several Acts, at 2, 1695 (hereinafter Repeal of Capital Offender Act).

68 : Id. at 3.

69 : Id.

70 : Id. at 4.

71 : Acts and Laws of the Massachusetts Bay Colony, An Act to prevent Incestuous Marriages, at 78, May 29, 1695 (approved 1698) (hereinafter Incestuous Marriage Act).

72 : See 2 HOWARD 177.

73 : See 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 (hereafter Approval of Incestuous Marriage Act.)

74 : Incestuous Marriage Act, at 78.

75 , 76 , 77 , 78 : Id.

79 : Id. at 78-79.

80 : Approval of Incestuous Marriage Act, at 3; 2 HOWARD 178.

81 : Id. at 1-3.

83 : JOHN NOBLE, ED., 1 RECORDS OF THE COURT OF ASSISTANTS OF THE COLONY OF THE MASSACHUSETTS BAY iv (Boston, 1901) (1630-1692) (hereinafter 1 COURT RECORDS).

84 : Id. at v.

85 : Id. at vii, x.

86 : Id. at x.

87 : Id. at vii.

88 : See JOHN NOBLE, ED., 2 RECORDS OF THE COURT OF ASSISTANTS OF THE COLONY OF THE MASSACHUSETTS BAY 173-185 (Boston, 1901) (1630-1692) (hereinafter 2 COURT RECORDS).

89 : See id.

90 : 1 COURT RECORDS 240.

91 , 92 , 93 , 94 , 99 , 100 , 101 , 102 : Id.

95 , 97 , 105 , 110 : 2 HOWARD 333.

96 , 103 : See 2 HOWARD 333.

98 , 104 : 1 COURT RECORDS 342.

106 : 1 COURT RECORDS 361.

107 , 108 , 109 : Id.

111 : See 1 COURT RECORDS 361.

112 : See Deuteronomy 25:5.

113 : Leviticus 18:16.

114 : Leviticus 20:21.

115 : Deuteronomy 25:5.

116 : See Leviticus 18:18; Deuteronomy 25:5.

117 : See 2 HOWARD 215; Incestuous Marriage Act, at 78.

118 : 2 HOWARD 215.

119 : See Incestuous Marriage Act, at 78; 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? 1 (Bartholomew Green 1695) (hereinafter INCREASE MATHER’S ANSWER).

120 : 1 COURT RECORDS vii.

III. The Church’s View of Incest

Notes

121 : Apparently, it was common for Puritans to keep diaries as a way to keep their souls in check. MORGAN 5. They would record acts of faith in order to prove to themselves that they were holy; they would also record lapses in faith—along with asking for forgiveness and repentance—to further prove their holiness. Id.

122 : NATHAN HENRY CHAMBERLAIN, SAMUEL SEWALL AND THE WORLD HE LIVED IN vii, ix (De Wolfe, Fiske & Company 1897). There is a seven-year gap in his diary because of a lost volume from 1677 to 1684. OLA ELIZABETH WINSLOW, SAMUEL SEWALL OF BOSTON 193 (The Macmillan Company 1964).

123 : CHAMBERLAIN ix.

124 : Id. at x.

Notes

125 : THOMAS BRIDGMAN, THE PILGRIMS OF BOSTON AND THEIR DESCENDANTS 129 (D. Appleton and Company 1856); John Lewis Ewell, Judge Samuel Sewall (1652-1730), A Typical Massachusetts Puritan, in 7 PAPERS OF THE AMERICAN SOCIETY OF CHURCH HISTORY 25, 26, 28 (Samuel Macauley Jackson, ed., 1895).

126 : BRIDGMAN 129; EWELL 29.

127 : BRIDGMAN 129; WINSLOW 47.

Notes

128 : CHAMBERLAIN, Appendix, Note F, at 318; EWELL 29; WINSLOW 191.

129 : CHAMBERLAIN, Appendix, Note F, at 318.

130 : HASKINS 29.

131 : Id. at 86.

132 : Id.; MORGAN 134.

133 : American Legal History, Class Notes, September 18, 2009.

134 : Id.

135 : MORGAN 134.

136 : EWELL 30.

Notes

137 : Id. at 31; CHAMBERLAIN, Appendix, Note F, at 318.

138 : EWELL 30; CHAMBERLAIN, Appendix, Note F, at 318.

139 : EWELL 31.

140 : WINSLOW 140.

141 : Id. at 140-141.

142 : EWELL 31; BRIDGMAN 129.

143 : EWELL 53; CHAMBERLAIN, Appendix, Note F, at 319; BRIDGMAN 129.

Notes

144 : See EWELL 32-33, 38-39.

145 : Id. at 45.

146 : WINSLOW 152.

Cotton was born in 1663, married three times, was awarded an honorary Doctor of Divinity degree by the University of Glasgow in 1710, and died in 1728 at the age of sixty-five.(149) During his life, Cotton Mather had a personal library of about 2000 books,(150) and he himself published about 388 works.(151) In addition to being part of Increase's Answer, one of Cotton's most famous works was the Magnalia Christi Americana, which details the history of New England in about eight hundred pages.(152) Published in 1702, the Magnalia was based on many sources, including diaries, letters, manuscript histories, interviews, and sermons.(153)

a. Church’s View of Marriage within a Relationship of Affinity, especially Marriages between a Man and his deceased Wife’s Sister

Similar to the view of the colonial government, the church opposed marriages involving a relationship of affinity, such as a marriage between a man and his dead wife's sister. Sewall, as well as the Mathers, opposed such unions. In his Magnalia Christi Americana, Cotton Mather specifically addressed whether it was lawful for a man to marry his wife’s sister, the most common relationship of affinity that was addressed.(154) Mather relied on the Bible to support his view that marriage between a man and his wife’s sister was prohibited.(155) His reasoning was that a man and his wife’s sister were related within the first degree of affinity and therefore their marriage was unlawful.(156) According to Mather, whatever degree of affinity exists between a person and a man, that same degree of affinity exists between a person and the man’s wife.(157) Mather's position mirrors the belief generally held by all Puritans "that relations by marriage deserved equal recognition with those by birth, because they understood literally the Biblical dictum that man and wife are one flesh.”(158) It was not uncommon in colonial Massachusetts for people to marry two or three times,(159) but a man’s remarriage did not end his relationships with his first wife’s relatives – they were still considered his kin.(160) Therefore, Mather reasoned, if a man was forbidden to marry his own kin, he was also forbidden from marrying his wife’s kin.(161)

Interestingly, Mather avoids the debate to a certain extent by not distinguishing between a sister of a wife who is alive and a wife who has died, as the Biblical prohibition only explicitly forbids a marriage with a living wife’s sister.(162) Technically, there is no prohibition against marrying a deceased wife’s sister, but since it was forbidden to marry the sister when the wife was alive, it makes sense that Mather and others thought such a marriage should be discouraged even when the wife had died. The Puritans, in “their anxiety to obey the Mosaic law, they even exceeded its requirements.”(163) Mather further supported his reasoning based on English law, as it was forbidden in England to marry two sisters.(164) Should a man marry his wife’s sister, Mather believed excommunication from the church was the appropriate punishment.(165) Mather thus relied on the punishment established in the Bible. While the death penalty was available for those who had a relationship with their stepmother or daughter-in-law, excommunication was prescribed for those who marry their sister.(166)

The most comprehensive religious source on marriages with a wife’s sister is Increase Mather’s 1695 work, “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?” Several ministers of Boston, Charlestown, and Dorchester, including Samuel Willard, Cotton Mather, and Increase Mather gathered to discuss their adamant views against marrying one’s deceased wife’s sister.(167) Increase Mather led the meeting and recorded its conclusions in his work mentioned above.(168) In a message to the reader, a prologue of sorts, Increase noted that it is particularly troubling that some “professors of Religion in a Land of Light” would not oppose the practice of marrying one’s wife’s sister, especially when even “Heathen Nations have detested it,” based on no principle but nature.(169) Increase included the viewpoint that some people believe that death ends all relationships, making it lawful for a man to marry his deceased wife’s sister.(170) But Increase disagreed with this position because, according to its logic, a man could marry his mother-in-law after his wife died, or by extension, a man could marry his stepmother after his father died.(171) The Bible expressly addressed that a man may not marry his father’s wife in I Corinthians 5:1, which Increase Mather cited as proof that a man may not marry his wife’s sister, given the implications that permission to marry one’s wife’s sister would lead to a relationship that is expressly forbidden.(172)

Increase also presented the additional viewpoint of those who believed that the marriages were sinful, but that once a couple married, they should not be separated. (173) Increase felt, however, that such an opinion was “strange and contradictory.”(174) “It is as if it should be affirmed, that because men have transgressed against the light of nature, they may do so still, and live in that sin though it be to the Eternal Damnation of their Souls.”(175) Increase believed these marriages are “wickedly incestuous.”(176) By allowing the civil government to allow these couples to remain married was to question “whether Magistrates may not indulge in the most scandalous transgressions of the Moral Law, and so bring the guilt of those Crimes upon the Government and upon the whole Land where they are perpetrated.”(177) Increase then cites Mark 6:18, where it says “It is not Lawful for thee to have thy Brothers Wife,” to support his point that John the Baptist’s intent in stating that prohibition was that the couple should no longer live together as Man and Wife.(178) Increase further cited Ezra 10:3, 11 and Nehemiah 13:25 for the proposition that when a marriage was contrary to the Law of God (as is a marriage with a wife’s sister), it was not sufficient for the couple “to confess their fault, or to inhibit the like practice in others for the future, but the guilty Persons were made to put away all such Wives.”(179) Finally, Increase referred the reader to the enclosed answer, which would “satisfy the Consciences” of those who truly wanted to know.(180)

In response to the actual question of whether it was lawful for a man to marry his wife’s own sister, Increase 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.”(181) He explained his reasoning in five numbered paragraphs, revolving around the Bible’s text, what other nations and people have thought, and what may happen if these marriages continue.(182) His first reason was based on the Bible’s lack of distinction between relationships of consanguinity and those of affinity.(183) In Leviticus, kin includes both kinds of relationships.(184) It then becomes clear, according to Mather, that if a man cannot marry his own sister, he cannot marry his wife’s sister.(185) His second reason was also based on the Bible’s text, as the Bible expressly prohibits marriage between a man and his brother’s wife, “Which Implies that a man may not Marry his Wives Sister, who is as near akin to him as his Brothers Wife.”(186) In the ministers’ view, if the Bible expressly prohibits one relationship, it implies a prohibition against the correlating relationship.(187) So for example, when the Bible expressly forbids a nephew and aunt to marry, it implicitly forbids an uncle and niece to marry.(188) Thus, marrying one’s wife’s sister is a relationship that is prohibited by implication.(189) It is weak to argue that just because such marriages were not expressly forbidden that they were allowed.(190)

The ministers cited as the third reason the practices of other nations that have condemned these marriages.(191) Greeks and Romans, who did not even have the Bible to rely upon, banned such marriages, as did Jewish and Christian nations.(192) Furthermore, England itself has prohibited such marriages.(193) The fourth reason was that well-educated, learned, holy men—both in the past in other places and in the present within this nation—agreed that such marriages were unlawful.(194) European universities also condemned such a practice.(195)

Finally, the ministers feared the repercussions of such marriages. The Bible refers to these marriages as “wickedness” and “abomination;” these marriages provoke God to “send enemies upon a People, and to make their Land desolate.”(196) If, after hearing the ministers’ opinion about these marriages, people continue to marry as such, “We may fear what God will do.”(197) Such marriages are a practice for which God punished the Heathen Nations, and “it is a burning Shame, that ever it should be heard of in such a Land of Uprightness as New England once was and ever ought to be.”(198) New England was held to a very high standard, and these marriages were simply inappropriate for such an enlightened place. The “Answer” was so influential that it “led directly to the passage of the celebrated law against incestuous marriages” of May 1695.(199) Clearly, the church and colony government were aware of each other’s views and acted in harmony. While Sewall did not sign Increase's Answer--he was technically not a minister afterall--he was aware of its existence, and according to his April 13, 1711 diary entry, he even borrowed Cotton's book to copy its text.(200) While the entry dates to shortly after the relevant period of inquiry for this essay, it is useful to cite the diary entry for proof that Cotton Mather and Sewall relied on each other for support in their beliefs and for actual source material. Evidently, Sewall and Cotton Mather were united in their beliefs and discussed those beliefs with each other.

Perhaps relying on the Answer's text and reasoning, Sewall believed marriages between a woman and her dead husband's brother was an additional relationship of affinity that should be forbidden, as explained in his March 19, 1710/11 letter to Mrs. Judith Pease. In Mrs. Pease’s case, her first and second husbands both died, and now Samuel Cranston, the brother of her first husband, wanted to marry her.(201) Sewall forbade Mrs. Pease from marrying her dead first husband’s brother because it violated the law of England and of God.(202) Sewall rested the prohibition on Leviticus 18:16, which states that one should not uncover the nakedness of his brother’s wife.(203) As Sewall understood it, if Mrs. Pease was once the wife of his brother, she is always the wife of his brother.(204) Mrs. Pease’s daughters from her first marriage are evidence that she and Samuel Cranston are kin, since he was still their uncle even though her first husband, Samuel’s brother, died.(205) In his letter, Sewall referred to the case of Governor Blake, governor of South Carolina, to support his position.(206) Apparently, although no corresponding letter is mentioned, fifteen years prior to Mrs. Pease’s situation, Governor Blake wanted to marry his wife’s sister, sought advice on the matter, learned that it was prohibited, and did not marry her.(207) It is unclear from this letter if Mrs. Pease heeded Sewall’s advice or not, but Sewall was definitely opposed to marriages within a relationship of affinity, as were Cotton Mather, Increase Mather, and the colonial government.

In two instances, Sewall specifically commented on the colonial court and legislature's actions with respect to incestuous marriages. When the statute against incestuous marriages was passed in late May 1695, Sewall recorded the vote in his diary entry of June 14, 1695, noting that the bill against incest passed, with twenty-four votes opposed and twenty-seven votes in favor.(208) Sewall notes that the vote was close because many ministers submitted arguments argued against the law, as many of them had married their wives’ sisters.(209) Apparently, the church debated the proper incestuous marriage prohibitions, and a small consensus emerged that marrying one's dead wife's sister was wrong. Both the Mathers and Sewall supported--and influenced--what the colonial government did, and ultimately the bill passed, in part to clarify that these marriages were against the law of God.(210) Evidently, ministers' opinions directly influenced how the civil government acted, and in the case of this statute, there was enough church support to justify a colonial government ban on incestuous marriages with a man's dead wife's sister.

The Editor’s Note in Sewall’s Diary specifies that the incest bill did not outlaw the corresponding marriages between a woman and her husband’s brother or nephew.(211) However, Sewall himself indicated that such marriages were already considered unlawful, even before the incest statute was passed, based on the Court of Assistants case. In his entry from December 25, 1691, Sewall noted that the Court of Assistants declared null Hannah Owen’s marriage to her husband’s brother.(212) Sewall recorded that she was forced to make a public confession before the Congregation, pay court fees, and go to prison.(213) There is no way to know whether Sewall was aware of Hannah Owens' case because of his role as a Superior Court Judge (even though her case was heard by a different court) or whether court cases were generally well-known to the colonists. Either way, Sewall's diary further confirms that the church and colonial government both opposed marriages within a relationship of affinity.

b. Church's View of Marriage between First Cousins

Where the church and colonial government seemed to have differed was regarding whether marriages between first cousins were allowed. While the colonial government never expressly addressed the issue, presumably making these marriages lawful, the church not only explicitly addressed the issue but was adamant that such unions were wrong. In his “Propositions Concerning the Marriage of Cousin-Germans,” published as part of the Magnalia Christi Americana, Cotton Mather discussed his views on Cousin-Germans—first cousins—marrying each other.(214) Mather recognized that the Bible did not prohibit first cousins from marrying but still opposed such marriages, based on Biblical principles.(215) He believed that the degree of consanguinity considered to create an unlawful marriage was based on the positive moral law of God.(216) Therefore, he felt that 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.”(217) Drawing on how historical religious figures in the past viewed marriage between first cousins, Mather therefore recommended that the best way to proceed was to abstain from marrying one’s cousin.(218) In addition to the unlawful Biblical aspect of first cousins marrying, Mather also recognized the more practical consequence of such marriages, namely that a main goal of marriage, to promote and extend alliances, would not be achieved.(219)

Sewall shared in Cotton Mather’s opinion that it was not recommended that first cousins marry each other, as Sewall saw first cousins marrying each other as being the same as marrying a dead wife’s sister: “it is not easy to conceive how a man marrying his Sister, should be a Capital crime; and yet the Marriage of Cousins Germans should be blameless and Commendable, whereas they make the very next Relation of equal degree.”(220) Therefore, Sewall did not distinguish between the different forms of marriage; he treated all blood and affinity relationships the same, in that they all make the marriage wrong in God's eyes. Sewall seemed to go a step further than Cotton Mather by viewing first cousin marriages not only as being doubtful but also as being actually prohibited by the Bible.(221) Sewall’s logic was that “if the Scripture Reckons Grandfathers, Fathers: the Scripture likewise Reckons Cousin Germans among Brothers and Sisters, and so uncapable of Intermarriage.”(222) Sewall unequivocally believed that “[d]egrees of Consanguinity and Affinity do equally affect Marriage,”(223) and therefore, in a letter dated February 23, 1703/4, to his nephew John Sewall, Sewall attempted to prevent his nephew from marrying the widow of his first cousin: “who can think it a comly and pleasant Sight for a Grandfather to see his own Children joined together in Marriage? Who can think it prudent and profitable for Cousin Germans to seek a Marriage-Union?”(224) As there were so many other lawful choices available, Sewall, just as Mather did, advised that cousins should do that which is safe and honorable, namely they should refrain from marrying each other.(225) Sewall compared marriage to land ownership in order to clarify his position.(226) As Sewall explained, when a man buys land, he makes sure that he has the clear title to the land: "Much more ought a man to be concernd, to chuse such a Woman to be his wife, to whom he may have a good, clear, indisputable Title, without the least Flaw or Appearance of it.”(227) It is unclear whether his cousin heeded his advice or not.

Sewall believed the colonial government, based on God's law, needed its position on marriages between first cousins to be somewhere between the Roman Catholic Church and English law. In Sewall’s opinion, the Roman Catholic Church was too restrictive in forbidding marriage between cousins, but English law was too permissive.(228) The Roman Catholic Church prohibited marriage between first, second, and third cousins.(229) In Sewall’s opinion, while Pope Gregory only discouraged first cousins marrying, subsequent popes outright banned those marriages in order to profit from the dispensations that people would need to obtain before marrying a first cousin.(230) English law, on the other hand, permitted marriage between first cousins.(231) What appears in Sewall’s letter book as a “Memoranda,” wherein he “transcribes the following passage out of Dr. Fuller’s Engl. Worthies of London, p. 202,” seems to be included almost to bolster Sewall’s own opinion that the English were too permissive.(232) Fuller’s passage suggests that the English Parliament passed a statute approving of the marriage between first cousins because of the relationship between King Henry and Katharine Howard (as Katharine was a first cousin to Anne Boleyn.)(233) A month after the English statute permitting first cousins to marry was passed, Katharine Howard became queen.(234) Sewall believed that Queen Katharine’s subsequent execution was evidence that marrying first cousins should not be allowed.(235)

Sewall expressed his opinions about the Roman Catholic Church and English law in a letter to John Williams, dated August 23, 1707, wherein he tries to strike a blance between the two extremes and to dissuade Williams from marrying his first cousin.(236) What is particularly interesting is John Williams’ response, which Sewall recorded in his letter book only a week after Sewall sent his original letter.(237) According to John Williams, marrying one’s cousin is not forbidden; if anything, it is expressly commanded, and in his actions, he is directed by God.(238) Evidently, Sewall’s letters did not carry the weight of law, and his private opinions did not influence Williams at all. Williams not only ignored Sewall’s recommendation but cited God’s desires as his rationale for doing so.(239) Williams’ response is the only occasion when the result or outcome of Sewall’s advice with respect to incestuous marriages is included. Based on this one response, it appears that the church had strong views opposing incestuous marriages between first cousins, but those views were not binding by any means, especially as the colonial government never addressed first cousins.

Indeed, not only was Sewall's advice ignored, but he felt isolated and was even targeted for his position on first cousins, on at least one occasion. In his diary entry of May 7, 1696, Sewall recounted that Colonel Shrimpton married his son to his wife’s sister’s daughter (Shrimpton’s son marries Shrimpton’s niece, i.e. first cousins marry each other).(240) Sewall was not invited to the wedding, even though most of the town was invited.(241) Sewall wrote that he was “glad not to be there because the lawfulness of the inter-marrying of Cousin-Germans is doubted.”(242) However, Sewall was upset that people were talking about him behind his back, that Colonel Shrimpton spoke ill of Sewall to defend his actions (in marrying his son to his niece).(243) The entry continues with Sewall’s prayer to God that God provide good people for Sewall to be around, and that he and his family go to heaven.(244) It appears that Sewall may have responded to the attacks against him, as Sewall also asked forgiveness for his “unsuitable deportment” at the table last Sabbath, the wedding day.(245) Despite this one entry expressing isolation, it appears that Sewall's position on first cousins was shared not only by Cotton Mather but by other ministers, too.

In a diary entry from September 15, 1685, Sewall noted that Mr. Willard “seemed to be against the Marriage of First-Cousins.&#8221(246) Mr. Willard probably refers to Samuel Willard, who was a close friend of Sewall and also served as pastor of the Old South Church, to which Sewall belonged.(247) Mr. Willard also signed Increase's Answer regarding men marrying their wife's sisters.(248) While there was debate about the proper incest prohibitions, the church's majority view appears to have been that marriages with first cousins were questionable, if not outright unlawful. TO be safe in God's eyes, first cousin marriages should be avoided even though the colonial government did not address these marriages.

c. When Incest is Discussed in General Terms

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.”(249) 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).(250) First of all, if “there be incest in a marriage,” divorce was appropriate.(251) 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.(252) 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.(253) The more common causes of divorce were adultery and desertion.(254) 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.(255) 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.

• 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.

Notes

147 : KENNETH SILVERMAN, THE LIFE AND TIMES OF COTTON MATHER 4, 15 (Harper & Row, Publishers 1984).

148 : Id. at 4-5, 369.

149 : Id. at 6, 50, 183, 190, 222, 261, 288, 422, 426.

150 : Id. at 262.

151 : Id. at 197.

152 : Id. at 158.

154 : COTTON MATHER, 2 MAGNALIA CHRISTI AMERICANA 252 (Silas Andrus & Son, 1853) (1620-1698) (hereinafter C. MATHER, MARRIAGE).

155 : Id.; see also Leviticus 18.

156 , 161 , 164 : C. MATHER, MARRIAGE, 252.

157 , 165 , 251 , 252 : Id.

158 : MORGAN 152.

159 : MORGAN 152. In fact, both Sewall and Cotton Mather each married thrice. EWELL 50-51; SILVERMAN 50, 261, 288.

160 : MORGAN 151.

162 : Leviticus 18:18; see also 2 HOWARD 213 n.4.

163 , 168 , 199 : 2 HOWARD 213.

166 : See Leviticus 20:11, 12, 17.

167 : 2 HOWARD 213; INCREASE MATHER’S ANSWER 8.

169 : INCREASE MATHER’S ANSWER 2.

170 , 171 , 173 , 174 , 175 , 178 , 179 , 180 , 184 , 185 , 188 , 189 , 190 , 192 , 193 , 194 , 197 : Id.

172 : See Id.

176 : Id. at 2-3.

177 : Id. at 3.

181 , 183 : Id. at 4.

182 : Id. at 4-8.

186 : Id. at 4-5.

187 : Id. at 5.

191 : Id. at 6.

195 : Id. at 7.

196 : Id. at 8.

198 : Id. (emphasis in original).

200 : SAMUEL SEWALL, 6 DIARY 306 (Massachusetts Historical Society, fifth series, 1879) (1700-1714) (hereinafter 2 SEWALL DIARY).

201 : SAMUEL SEWALL, 1 LETTER BOOK 408 (Massachusetts Historical Society, sixth series, 1886) (1686-1712) (hereinafter 1 SEWALL LETTER BOOK).

202 : Id. at 409.

203 , 204 , 205 , 207 : Id.

206 : Id. at 410.

208 : SAMUEL SEWALL, 5 DIARY 407 (Massachusetts Historical Society, fifth series, 1878) (1674-1700) (hereinafter 1 SEWALL DIARY).

209 , 210 , 241 , 242 , 243 , 244 , 245 : Id.

211 : Id. n.1.

212 : Id. at 354.

213 : Id.

214 : See COTTON MATHER, 2 MAGNALIA CHRISTI AMERICANA 267-68 (Silas Andrus & Son, 1853) (1620-1698) (hereinafter C. MATHER, COUSINS).

215 : Id. at 268.

216 , 217 , 218 , 219 : Id.

220 : 1 SEWALL LETTER BOOK 291.

221 : See Id.

222 , 223 , 227 : Id.

224 : Id. at 291-92. It also appears that Sewall re-sent this letter in 1708, but the circumstances are unclear. See SAMUEL SEWALL, 2 LETTER BOOK 17-19 (Massachusetts Historical Society, sixth series, 1888) (1712-1729) (hereinafter 2 SEWALL LETTER BOOK).

225 : 1 SEWALL LETTER BOOK 292-293; see also 2 SEWALL LETTER BOOK 20.

226 : 1 SEWALL LETTER BOOK 292.

228 , 231 : Id. at 352.

229 , 238 , 239 : Id.

230 , 234 : Id. at 370.

232 : See Id. at 369.

233 : Id.

235 : Id.; 2 SEWALL LETTER BOOK 19; see also 2 HOWARD 212-13.

236 : 1 SEWALL LETTER BOOK 351-52.

237 : 1 SEWALL LETTER BOOK 354.

240 : 1 SEWALL DIARY 424.

246 : 1 SEWALL DIARY 96.

247 : WINSLOW 182.

248 : INCREASE MATHER'S ANSWER 8.

249 : SAMUEL SEWALL, 7 DIARY 398 (Massachusetts Historical Society, fifth series, 1882) (1714-1729) (hereinafter 3 SEWALL DIARY).

250 : C. MATHER, MARRIAGE 253.

253 : 2 HOWARD 332-333.

254 : MORGAN 36; HASKINS 81.

255 : See HASKINS 81

• 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.

Documents

The Church - Cotton and Increase Mather; Samuel Sewall

• Mather_Cousins.pdf: Mathers' View on Marrying Cousins

• Mather_Marriage.pdf: Mathers' View on Marrying Wife's Sister

• Increase_Mather_-_Marrying_Wifes_Sister.pdf: Increase Mather's Answer re Marrying Wife's Sister

• Sewall_Letter_Book_(v._1,_290-293).pdf: Sewall Letter Book (Vol. 1, pp. 290-293)

• Sewall_Letter_Book_(v._1,_350-355).pdf: Sewall Letter Book (Vol. 1 350-355)

• Sewall_Letter_Book_(v._1,_368-371).pdf: Sewall Letter Book (Vol 1 368-371)

• Sewall_Letter_Book_(v._1,_408-411).pdf: Sewall Letter Book, vol. 1 408-411

• Sewall_Letter_Book_(vol_2).pdf: Sewall Letter Book (Vol. 2)

• Sewall_Diary,_Vol_I_(1674-1700).pdf: Sewall Diary, Vol. I (1674-1700)

• Sewall_Diary,_Vol_I_p_354.pdf: Sewall re Hannah Owen

• Sewall_Diary,_Vol_II_(1700-1714).pdf: Sewall Diary, Vol II (1700-1714)

• Sewall_Diary,_Vol_III_(1714-1729).pdf: Sewall Diary, Vol III (1714-1729)

Court Records

• Ct_Records,_Vol_1.pdf: Court Records, Vol. 1

• Ct_Records,_Vol_1_(Owen).pdf: Owen's Court Record

• Ct_Records,_Vol_2.pdf: Court Records, Vol. 2

• Ct_Records,_Vol_3.pdf: Court Records, Vol. 3

• Ct_Records,_Vol_4.pdf: Court Records, Vol 4 (unlawful to marry wife's sister)

Statutes/Written Laws

• Acts_-_Capital_Crimes.pdf: Capital Offender Act

• Privy_Repeal.pdf: Privy Council Repeal of Capital Offender Act

• Acts_-_Incest.pdf: Incestuous Marriage Act

• Privy_Council_-_Approve.pdf: Privy Council Approves of Incestuous Marriage Act

• Body_of_Liberties.pdf: Body of Liberties, 1641

This is NOT ready for review quite yet.

b. Church's View of Marriage between First Cousins

Where the church and colonial government seemed to have differed was regarding whether marriages between first cousins were allowed. While the colonial government never expressly addressed the issue, presumably making these marriages lawful, the church not only explicitly addressed the issue but was adamant that such unions were wrong. In his “Propositions Concerning the Marriage of Cousin-Germans,” published as part of the Magnalia Christi Americana, Cotton Mather discussed his views on Cousin-Germans—first cousins—marrying each other.(431) Mather recognized that the Bible did not prohibit first cousins from marrying but still opposed such marriages, based on Biblical principles.(432) He believed that the degree of consanguinity considered to create an unlawful marriage was based on the positive moral law of God.(433) Therefore, he felt that 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.”(434) Drawing on how historical religious figures in the past viewed marriage between first cousins, Mather therefore recommended that the best way to proceed was to abstain from marrying one’s cousin.(435) In addition to the unlawful Biblical aspect of first cousins marrying, Mather also recognized the more practical consequence of such marriages, namely that a main goal of marriage, to promote and extend alliances, would not be achieved.(436)

Sewall shared in Cotton Mather’s opinion that it was not recommended that first cousins marry each other, as Sewall saw first cousins marrying each other as being the same as marrying a dead wife’s sister: “it is not easy to conceive how a man marrying his Sister, should be a Capital crime; and yet the Marriage of Cousins Germans should be blameless and Commendable, whereas they make the very next Relation of equal degree.”(437) Therefore, Sewall did not distinguish between the different forms of marriage; he treated all blood and affinity relationships the same, in that they all make the marriage wrong in God's eyes. Sewall seemed to go a step further than Cotton Mather by viewing first cousin marriages not only as being doubtful but also as being actually prohibited by the Bible.(438) Sewall’s logic was that “if the Scripture Reckons Grandfathers, Fathers: the Scripture likewise Reckons Cousin Germans among Brothers and Sisters, and so uncapable of Intermarriage.”(439) Sewall unequivocally believed that “[d]egrees of Consanguinity and Affinity do equally affect Marriage,”(440) and therefore, in a letter dated February 23, 1703/4, to his nephew John Sewall, Sewall attempted to prevent his nephew from marrying the widow of his first cousin: “who can think it a comly and pleasant Sight for a Grandfather to see his own Children joined together in Marriage? Who can think it prudent and profitable for Cousin Germans to seek a Marriage-Union?”(441) (It also appears that Sewall re-sent this letter in 1708, but the circumstances are unclear.)(442) As there were so many other lawful choices available, Sewall, as Mather did, advised that cousins should do that which is safe and honorable, namely they should refrain from marrying each other.(443) Sewall compared marriage to land ownership in order to clarify his position.(444) As Sewall explained, when a man buys land, he makes sure that he has the clear title to the land.(445) “Much more ought a man to be concernd, to chuse such a Woman to be his wife, to whom he may have a good, clear, indisputable Title, without the least Flaw or Appearance of it.”(446) It is unclear whether his cousin heeded his advice or not.

In Sewall’s opinion, the Roman Catholic Church was too restrictive in forbidding marriage between cousins, but English law was too permissive.(447) The Roman Catholic Church prohibited marriage between first, second, and third cousins.(448) In Sewall’s opinion, Pope Gregory discouraged first cousins marrying, but subsequent popes outright banned those marriages in order to profit from the dispensations that people would need to obtain before marrying a first cousin.(449) English law, on the other hand, permitted marriage between first cousins.(450) What appears in Sewall’s letter book as a “Memoranda,” wherein he “transcribes the following passage out of Dr. Fuller’s Engl. Worthies of London, p. 202,” seems to be included almost to bolster Sewall’s own opinions.(451) Fuller’s passage suggests that the English Parliament passed a statute approving of the marriage between first cousins because of the relationship between King Henry and Katharine Howard (as Katharine was first cousin to Anne Boleyn.)(452) A month after the statute permitting first cousins to marry was passed, Katharine Howard became queen.(453) Sewall believed that Queen Katharine’s subsequent execution was evidence that marrying first cousins should not be allowed.(454)

Notes

437 : 1 Sewall Letter Book 291.

438 : See SAMUEL SEWALL, 1 LETTER BOOK 291 (Massachusetts Historical Society, sixth series, 1886) (1686-1712) (hereinafter 1 SEWALL LETTER BOOK).

441 : Id. at 291-92.

442 : See SAMUEL SEWALL, 2 LETTER BOOK 17-19 (Massachusetts Historical Society, sixth series, 1888) (1712-1729) (hereinafter 2 SEWALL LETTER BOOK).

b. Church’s View of Marriage between a Man and his deceased Wife’s Sister

Notes

504 : See Id. at 409.

505 : Id. at 408.

Interestingly, Mather avoids the debate to a certain extent by not distinguishing between a sister of a wife who is alive and one who has died, as the Biblical prohibition only explicitly forbids a marriage with a living wife’s sister.(525) Technically, there’s no prohibition against marrying a deceased wife’s sister, but since it was forbidden to marry the sister when the wife was alive, it makes sense that Mather and others thought such a marriage should be discouraged even when the wife had died. The Puritans, in “their anxiety to obey the Mosaic law, they even exceeded its requirements.”(526) Mather further supports his reasoning based on English law, as it was forbidden in England to marry two sisters.(527) Should a man marry his wife’s sister, Mather believes excommunication from the church is the appropriate punishment.(528) Mather is clearly relying on the punishment established in the Bible. While the death penalty is available for those who have a relationship with their stepmother or daughter-in-law, excommunication is prescribed for those who marry their sister.(529)

Notes

522 : MORGAN 152; EWELL 50-51; SILVERMAN 50, 261, 288.

i. When Church Comments on Civil Government’s Actions

Notes

604 : 1 SEWALL DIARY 407.

Notes

627 : See Id.

Notes

660 : See Leviticus 20:11-12, 14, 17, 19-21.

661 : Leviticus 20: 11-12, 17, 19-21.

662 : CALUM M. CARMICHAEL, LAW, LEGEND, AND INCEST IN THE BIBLE 195 (Cornell University Press 1997).

Notes

673 : Id.

Notes

685 : Id. at 137.

Notes

825 : MORGAN 5.

827 : NATHAN HENRY CHAMBERLAIN, SAMUEL SEWALL AND THE WORLD HE LIVED IN vii, ix (De Wolfe, Fiske & Company 1897).

828 : OLA ELIZABETH WINSLOW, SAMUEL SEWALL OF BOSTON 193 (The Macmillan Company 1964).

In addition to Sewall, both Increase Mather and his son Cotton Mather viewed first cousin and deceased wife’s sister marriages as unlawful. Increase and Cotton Mather were both well-known, Harvard-educated ministers.(866) Both suffered from physical ailments during their lives, which may have contributed to their moody dispositions.(867) Increase was born in 1639, married in 1662 to Maria Cotton, and died in 1723.(868) Cotton was born in 1663, married three times, was awarded an honorary Doctor of Divinity degree by the University of Glasgow in 1710, and died in 1728 at the age of sixty-five.(869) During his life, Cotton Mather had a personal library of about 2000 books,(870) and he himself published about 388 works.(871) One of his most famous works was the Magnalia Christi Americana, which details the history of New England in about eight hundred pages.(872) Published in 1702, the Magnalia was based on many sources, including diaries, letters, manuscript histories, interviews, and sermons.(873)

Notes

867 : Id. at 4, 6, 202.

Notes

877 : Id. at 306b (see caption of Sewall’s portrait).

878 : Id. at 369.

879 : EWELL 36.

880 : See SAMUEL SEWALL, 6 DIARY 306 (Massachusetts Historical Society, fifth series, 1879) (1700-1714) (hereinafter 2 SEWALL DIARY).

881 : Id.

882 : See SAMUEL SEWALL, 5 DIARY 408 (Massachusetts Historical Society, fifth series, 1878) (1674-1700) (hereinafter 1 SEWALL DIARY).

883 : Id.

a. Church's View of Marriage between First Cousins