II. Capital Offences: Sodomy
III. Capital Offences: Rape
IV. Capital Offences: Buggery
VII. Attempts and Propositions
VIII. Lascivious and Suspicious Conduct
IX. Miscellaneous Offences
X. Equality in the Court?
XI. Real vs. Ideal Culture: A Summary
Appendix I: The Laws
Appendix II: The Court Records
I. The Laws Governing Sexual Misconduct
The initial laws governing sexual misconduct in Plymouth Colony were part of the 1636 codification of laws. Prior to this date, three cases of sexual misconduct were presented and ruled in the Court, two for fornication before marriage and one for "attempting uncleanes" (PCR 1:12, 15). Based on these cases, one can assume that the people of Plymouth operated under an unwritten code of moral conduct before 1636. The new laws embodied this code, and distinguished between capital and criminal sexual offences. "Sodomy, rapes, and buggery" were declared "capital offences lyable to death" (PCR 11:12). Criminal offences include "ffornication and other uncleane carriages to be punished at the discretion of the Majestrates according to the nature thereof" and "ffornication before contract or marriage" (PCR 11:12). Upon first reading the listed offences, one might think the double listing of fornication as redundant, but I see this as an act of clarification. While the second listing of fornication is ambiguous, I interpret it as an outlaw of fornication before and after entering contract. I base this interpretation on the court records that include convictions for fornication before and during the period of contract. In June of 1645, the General Court passed an act that outlined the punishment for fornication. Every person who committed fornication "before or without lawfull contract" was to be imprisoned for up to three days and either whipped or fined ten pounds. If a couple was in the period of contract, or engagement, at the time of fornication, then the fine was reduced to five pounds per person (PCR 11:46). This enactment was incorporated into the 1658 codification of laws. As I shall illustrate below, the size of the fines for fornication followed this legislation for the most part. However, imprisonments seem to have been abandoned soon after.
Ambiguities regarding adultery in the 1636 codification pose an interesting problem. In the records, adultery was originally listed as a criminal offence. It was then crossed out and added to the list of capital offences with the qualifier "to be punished" (PCR 11:12). The confusion reflected in the records played out in adultery cases throughout the colony's history. While adultery was never punished as a capital offence, it was handled as a very serious criminal offence. In the 1658 revision of the laws a more specific punishment for adultery was stipulated.
Not only were convicted adulterers to be severely whipped twice, but they were to forever display the nature of their crime upon their person. Hawthorne's infamous scarlet letter was not a pure fiction. While the legislation did not specify a color for the cloth letters, at least one court case did specify that they be red. Three cases of adultery appeared before the Court before the 1658 enactment, and in each case, at least one of the convicted party was forced to display letters upon the outer garment.It is enacted by the court and the authoritie therof that whosoeuer shall comitt Adultery shalbee seuerly punished by Whiping two seuerall times; namely once whiles the Court is in being att which they are convicted of the fact and the 2cond time as the Court shall order and likewise to weare two Capitall letters namely A D cut out in cloth and sowed on theire vpermost Garments on theire arme or backe; and if att any time they shalbee taken without the said letters whiles they are in the Gouernment soe worn to bee forth with taken and publickly whipt. (PCR 11:95)
The most curious piece of legislation pertaining to sexual misconduct is a 1645 enactment that outlawed wearing "visors and strang apparell to laciuious ends and purposes." The wording of the passage suggests that the practice of disguising oneself for purposes of sexual misconduct had become a problem in Plymouth -- "wheras some abuses haue formerly broken out amongst us by disguiseing"(PCR 11:48). The punishment for wearing a disguise for lascivious ends was a public whipping or a fine of fifty shillings for the first offence. A second offence increased the fine to five pounds, and, if the Bench thought it necessary, a "bound to the behauior." In 1658, the enactment was included in the codification of laws. The curious thing about this legislation is that no case of disguises being worn by masked lovers appears in the court records. The absence of such data indicates that some degree of detail is missing from the written account of the court cases.
In June of 1670, the General Court passed the final piece of legislation concerning sexual misconduct. It stated "that whosoeuer haueing comitted vncleanes in another Collonie and shall come hither and haue not satisfyed the law where the fact was comitted they shalbe sent backe or heer punished according to the Nature of the crime as if the acte had bine heer done"(PCR 11:229). The motivation for the development of this law suggests to me that one or several persons from neighboring colonies may have fled to Plymouth upon conviction of a sexual offence elsewhere. Regardless, this enactment clearly indicates that Plymouth Colony was not about to be a safe harbor to those it deemed moral deviants.
In the sections below, I examine the actual court cases of sexual misconduct in Plymouth Colony between 1633 and 1691. I have grouped the cases into eight categories of capital and criminal offences. The categories roughly include: sodomy, rape, buggery, adultery, fornication, attempts and propositions, lascivious and suspicious conduct, and miscellaneous sexual offences. I recognize that these categories are not clearly distinct -- some cases fall into more than one category and, in others, the wording of the case is vague.
Only one clear case of sodomy appears in the court records of Plymouth colony. The case was heard on March 1, 1641/1642 and involved three men, Edward Michell, Edward Preston, and John Keene. The first two men were presented on charges of "lude & sodomiticall practices tending to sodomye" with one another. The third, John Keene, was propositioned by Edward Preston, but "he resisted the temptacion, and vsed meanes to discouer it." Neither Michell nor Preston was sentenced to death for his crime, even though the 1636 laws clearly list sodomy as a capital offence. Both men were sentenced to a double whipping, once at Plymouth and a second time at Barnestable. John Keene, since he resisted the temptation and apparently brought the crime to the knowledge of the court, was "appoynted to stand by" while the other two men received their punishment. Upon first reading, this seems like a strange ruling on the part of the Court. Why did they particularly want Keene to be present? The answer may lie in the final phrase of John Keene's ruling -- "though in some thing he was faulty"(PCR 2:35-36). Perhaps the means used to discover the crime involved a lesser degree of immoral behavior, and the Court's ruling was a punishment. While the Court recognized Keene's desire to bring this crime to justice, they did not disregard his actions.
The second case is the August 6, 1637 ruling involving John Alexander and Thomas Roberts. While not directly labeled in the records as a case of sodomy, it is clearly an act of homosexual behavior. The Oxford English Dictionary defines sodomy as "an unnatural form of sexual intercourse, esp. that of one male with another." The definition is ambiguous, but since this case is clearly an act of unconventional sexual relations between two men, I feel justified in including it here. The text of the record reads as follows:
John Allexander [and] Thomas Roberts were both examined and found guilty of lude behavior and uncleane carriage one w[ith] another, by often spendinge their seede one vpon another, w[hich] was proued both by witnesse & their owne confession; the said Allexander found to haue beene formerly notoriously guilty that way, and seeking to allure others therevnto. The said John Allexander was therefore censured by the Court to be seuerely whipped, and burnt in the shoulder w[ith] a hot iron, and to be perpetually banished the gouernment of New Plymouth, and if he be at any tyme found w[ith]in the same, to bee whipped out againe by the appoyntment of the next justice, et cetera, and so as oft as he shall be found w[ith]in this gouernment. W[hich] penalty was accordingly inflicted.
The punishment inflicted on John Allexander -- severe whipping, branding, and banishment -- speaks to the severity of his crime in the eyes of the Court. However, he was not put to death. Roberts' punishment resembles that of Michell and Preston. While he was not whipped a second time, his prospects for owning land after his time of indenture were placed in jeopardy.Thomas Roberts was censured to be severely whipt, and to returne to his m[aster], Mr. Atwood, and to serue out his tyme w[ith] him, but to be disabled hereby to enjoy any lands w[ith]in this gouernment, except hee manefest better desert. (PCR 1:64)
David Hackett Fischer traces the Puritan disdain for sodomy (and all forms of "unnatural sex" to a passage in the book of Genesis, "where Onan 'spilled his seed upon the ground' in an effort to prevent conception and the Lord slew him." Fischer relates that "seed-spilling in general was known as the 'hideous sin of Onanism'" in Massachusettes (1989:93). The story from the book of Genesis explains why both sodomy and buggery might have been listed as crimes punishable by death. The ruling for John Allexander seems to rank very high on the list of criminal punishments. I have encountered only one criminal punishment that was more severe, that being for buggery (see below). The punishment inflicted on Edward Michell and Edward Preston was severe, but nowhere close to a death sentence. As I will show below, some cases of adultery -- a crime "to be punished" -- were punished more severely than this particular instance of sodomy.
Two rape cases survive in the court records of Plymouth Colony. Rape is the second of the three crimes listed as punishable by death, but neither case resulted in capital punishment. The first case was presented before the Court of Assistants on October 30, 1677. Ambrose Fish was indicted "for that hee, haueing not the feare of God before his eyes, did wickedly, and contrary to the order of nature, . . . by force carnally know and rauish Lydia Fish, the daughter of Mr Nathaniell Fish, of Sandwich aforsaid, and against her will, shee being then in the peace of God and of the Kinge" (PCR 5:245-46). Eugene Aubrey Stratton, while not reliable on all matters concerning Plymouth, suggests that Ambrose Fish may have been Lydia's brother (1986:199). Nevertheless, his sentence was based on the Court's requirement of two witnesses for capital crimes. Since Lydia was the only witness, Ambrose was sentenced to a whipping at the post instead of capital punishment.
The second case raises some interesting issues. It was heard by the Court of Assistants on October 31, 1682, and involved "Sam, the Indian," and Sarah Freeman. The jury found Sam "guilty by his owne confession, in wickedly abusing the body of Sarah Freeman by laying her downe vpon her backe, and entering her body with his." If Sam truly did confess to raping Sarah, then the court had two witnesses. However, the ruling reads as follows, "although in an ordinary consideration hee deseued death, yett considering hee was but an Indian, and therfore in an incapasity to know the horiblenes of the wickednes of this abominable act, with other cercomstances considered, hee was centanced by the Court to be seuerly whipt att the post and sent out of country" (PCR 6:98). Stratton sees this case as evidence of differential treatment of Native Americans and colonists in the upholding of the law (1986:107), but one case does not make a pattern. Two things must be kept in mind. From my scanning of the records, Native Americans were treated as equals in all other matters of the court. Furthermore, only one person was ever put to death for a sexual crime in the history of the colony -- the buggery case of Thomas Graunger. I have to wonder if the case would have turned out any differently if the man had been white. Since there are so few cases in the records, reaching a conclusion is difficult.
Another concern arises from the case of Sam. Colonial historians agree that rape was not a cultural practice of Native Americans. Laurel Thatcher Ulrich writes that this fact astonished the Puritans of New England: they were "amazed at the sexual restraint of Indian men, who never raped their captives" (1980:97, 174). Is Sam's case the only recorded Native American rape of an English woman, or was the "rape" contrived by Sarah? The court records indicate that Sam confessed to sexual intercourse with Sarah, but, if rape was unknown to him, how did he know what he was confessing to? Was Sam fluent in English, or did the translator do a little of his own interpreting? Since no other witnesses spoke to the truth of the occurrence, we must not dismiss the possibility that Sam, while he may be guilty of fornication, was not guilty of rape.
Perhaps the best known sexual offence in the history of Plymouth Colony is the 1642 case of young Thomas Graunger who was found guilty of "buggery with a mare, a cowe, two goats, diuers sheepe, two calues, and a turkey" and sentenced to death by hanging (PCR 2:44). The actual court account of this case is very brief, but William Bradford describes it at length in Plymouth Plantation:
I include Bradford's full account for two reasons: it conveys a tone of sorrow and it refers to punishment "according to the law," not of the Court, but of God. Leviticus 20:15 of the King James Bible reads, "and if a man lie with a beast, he shall surely be put to death: and ye shall slay the beast." Recalling the story of Onan "spilling his seed" and the Lord subsequently slaying him, the ideal code of sexual and moral conduct as outlined in the laws of Plymouth appears to be based on what the colonists believed to be the law of God. God's law dictated that a buggerer must be put to death, and the unfortunate animal must be slain. In the first case of buggery to be heard before the court, the ruling was based on this law. However, the tone of Bradford's rendition of the execution is not one of a man who rejoices in the playing out of justice. Rather, he is sad that such a case ever came before the Court. Bradford follows the story by questioning "how came it to pass" that such wickedness appears in the colony (1952:321).He [Thomas Granger] was this year detected of buggery, and indicted for the same, with a mare, a cow, two goats, five sheep, two calves and a turkey. Horrible it is to mention, but the truth of the history requires it. He was first discovered by one that accidentally saw his lewd practice towards the mare. (I forbear particulars.) Being upon it examined and committed, in the end he not only confessed the fact with that beast at that time, but sundry times before and at several times with all the rest of the forenamed in his indictment. And this his free confession was not only in private to the magistrates (though at first he strived to deny it) but to sundry, both ministers and others; and afterwards, upon his indictment, to the whole Court and jury; and confirmed it at his execution. And whereas some of the sheep could not so well be known by his description of them, others with them were brought before him and he declared which were they and which were not. And accordingly he was cast by the jury and condemned, and after executed about the 8th of September, 1642. A very sad spectacle it was. For first the mare and then the cow and the rest of the lesser cattle were killed before his face, according to the law, Leviticus xx.15; and then he himself was executed. The cattle were all cast into a great and large pit that was digged of purpose for them, and no use made of any part of them. (1952:320-1)
In 1643, John Walker is asked to appear before the next General Court to answer to the matter of his "lying with a bitch" (PCR 2:57). I cannot determine whether the bitch in question was a female dog or a lewd woman. The Oxford English Dictionary lists both definitions as appropriate for the period. In either case, no mention is ever made about this case in a future court. The General Court of March 6, 1655/1656 set William Honywell free, "haueing bine committed to jayle on suspision of buggery with a beast," because there was not sufficient evidence to convict him (PCR 4:116).
The final case of bestiality to appear before the court concerned Thomas Saddeler, who was arraigned for buggering a mare in October of 1681.
Not surprisingly, considering what happened to Granger, Saddeler pleaded not guilty and the case went before a jury of twelve men. The jury found him guilty "of vile, abominable, and presumtuous attempts to buggery with a mare in the highest nature." Although he was not sentenced to death, his punishment was the most severe case of criminal punishment that I have seen in the records. He was "to be seuerly whipt att the post, and to sitt on the galloss with a rope about his necke during the pleasure of the Court, and to be branded in the forehead with a Roman P to signify his abominable pollution, and soe to depart this gouernment" (PCR 6:75). Saddeler's sentence resembles the punishment inflicted on John Allexander for "spilling his seed," but, in two notable ways, it was more severe. Saddeler's brand was on his forehead rather than his shoulder, and he was forced to sit in the gallows with a rope around his neck. The later speaks to the severity of his crime. He was not sentenced to death, but he was not to forget that his crime was punishable by death. The explanation for the "lighter" sentence is that Saddeler was found guilty of "attempts to buggery," not a committed act of buggery. In a 1642 letter from William Bradford to Richard Bellingham, Bradford offered his opinion that although an attempted crime may be equal in the eyes of God, he does not believe that a magistrate should have the power to sentence the individual to death (1952:319). In this passage, I see a distinction between the ideal law of God and the law of the Court.Thomas Saddeler, thou art indited . . . for that thou, haueing not the feare of God before, nor carrying with thee the dignity of hamaine nature, but being seduced by the instigation of the diuill, on the third of September in this present yeer, 1681, by force and armes, . . . a certaine mare of a blackish couller then and there being in a certaine obscure and woodey place, . . . then and there thou didest tye her head vnto a bush, and then and there, wickedly and most abominably, against thy humaine nature, with the same mare then and there being felloniously and carnally didest attempt, and the detestable sin of buggery then and there felloniously thou didest committ and doe . . . . (PCR 6:74)
Leviticus 20:10 reads, "the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death." Here again, the laws of Plymouth reflect an ideal set forth as the law of God -- adultery was punishable by death. However, why was the law qualified with the phrase "to be punished?" The twenty-second chapter of Deuteronomy restates the law of Leviticus, but proceeds to qualify that law. I believe that the following verses may explain the confusion reflected in the 1636 codification of laws.
According to the Bible, betrothed women who were raped and protested could not be put to death for an act of adultery. The passage does not specify what should happen to a married woman if she cries out.22. If a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman: so shalt thou put away evil from Israel. 23. If a damsel that is a virgin be betrothed unto an husband, and a man find her in the city, and lie with her; 24. Then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die; the damsel, because she cried not, being in the city; and the man, because he hath humbled his neighbour's wife: so thou shalt put away evil from among you. 25. But if a man find a betrothed damsel in the field, and the man force her, and lie with her: then the man only that lay with her shall die: 26. But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death: for as when a man riseth against his neighbour, and slayeth him, even so is this matter: 27. For he found her in the field, and the betrothed damsel cried, and there was none to save her.
Like Hebrew law, seventeenth century Puritans defined adultery as any act of fornication with a married or betrothed woman. The definition has serious implications not only for the people living under the law, but also for the interpretation of the Plymouth court data. Married men who had sexual intercourse with single women were punished for fornication, not adultery. Therefore, examination of the cases of adultery within the colony is not a true reflection of the degree of infidelity in Plymouth. John Demos points out that "the chief concern, the essential element of sin, was the woman's infidelity to her husband" (1970:97). The element that sets adultery cases apart from acts of fornication is the crime done to the husband. As I shall soon show, adultery was one reason a husband could be divorced from his wife. The double standard reflected in this particular crime will be discussed in greater length in another section.
Nine cases in the Plymouth court records refer to adultery in some form. Three of these cases result in a punishment much like that presented in the 1658 codification of laws. Interestingly, all three of the cases appear before the court prior to 1658, which leads one to believe that the 1658 enactment was in response to a precedent that had been set. The second case to appear before the court most closely conforms to the law outlined in 1658. On December 7, 1641, Thomas Bray and Anne Linceford both confessed to committing adultery in the absence of Anne's husband. Their punishment included an immediate severe whipping at the public post in Plymouth, a second whipping at the public post in Yarmouth (where the act was committed), and the wearing of "two letters, namely, an AD, for Adulterers, daily, vpon the outside of their vppermost garment, in a most emenent place thereof" for as long as they remain in the colony (PCR 2:28). Failure to wear the letters would result in another whipping. This is the only case in which both parties receive identical punishments.
The first case, involving Mary Mendame and Tinsin, an Indian, was sentenced in the court on September 3, 1639. Mary was sentenced to be "whipt at a carts tayle" and "weare a badge vpon her left sleeue." However, Tinsin was to be "well whipt with a halter about his neck at the post" (PCR 1:132). According to Eugene Aubrey Stratton, "whipping at a cart's tail while the cart was drawn through town was considered a more severe punishment than whipping at the post" (1986:196). Stratton cites only two other instances of this particular punishment, one for committing "uncleanes" and one for whoredom (See PCR 1:132, PCR 4:106). The "lighter" sentence for Tinsin was rationalized "because it arose through the allurement & inticement of the said Mary, that hee was drawne therevnto" (PCR 1:132). This ruling reminds me of the rational for the lighter sentence inflicted on Sam and his apparent rape of Sarah Freeman. Is Tinsin given a break because he is "but an Indian" with "an incapasity to know the horiblenes" of his actions (PCR 6:98)?
The case between Katheren Aines and William Paule ended with an unusual conviction. The case was first brought before the Court of Assistants on February 3, 1656 (PCR 3:110-11), but for want of more information, it was referred to the next General Court on March 5th of that year (PCR 3:111-12). The two were not clearly convicted of adultery, but they were sentenced for "vnclean and laciuiouse behauior." William was publicly whipped and, as an additional punishment, he was forced to pay the costs of his brief imprisonment. Katheren was whipped once at Plymouth and once at Taunton and forced to wear a red B on her right shoulder for the remainder of her time in the colonly. However, the most unusual part of the ruling was the punishment inflicted on Alexander Aines "for his leaueing his family, and exposing his wife to such temtations, and being as baud to her therin." He was sentenced to pay the fee for his wife's imprisonment and sit in the stocks while she and William were whipped. The records do not indicate how long Aines was absent from his family, but abandonment was grounds for divorce in the colony.
On October 29, 1671, Mary Attkinson and John Bucke appeared before the court to answer for their adultery that resulted in a child. Curiously, the jury was not in doubt as to whether or not the couple committed fornication, but whether or not Marmeduke Attkinson, the former husband of Mary, was alive at the time the act was committed. Since the jury could not be sure, Mary and John were found guilty of fornication and given the choice of paying a ten pound fine or being whipped. Not surprisingly, they chose the fine (PCR 5:81-2). On June 10, 1662, Thomas Bird was sentenced to be whipped for "seuerall adulterouse practices and attempts" with Hannah Bumpas (PCR 4:22).
The three remaining court references to adultery appear not when the guilty parties are brought before the court, but when the husbands of the women involved appear before the court to petition for a divorce. On July 4, 1673, John Williams is granted a divorce from his wife, Sarah owing to her "violat[ing] her marriage bond by committing actuall adultery with another man, and hath a child by him" (PCR 5:127). Samuell Hallowey appeared before the court several times pleading for a divorce from his wife, Jane. Jane insisted, "shee hath committed adultery with diuers persons" (PCR 5:32, 41-42). In June of 1689, John Glover petitioned the court for a divorce from his wife. Mary Glover, who "violat[ed] the marriage covenant by entertaining some other man or men into bed fellowship," later infected her husband "with that filthy & noysome disease called the pox" (PCR 6:190). I think it is interesting that in at least two of these cases (I am unsure about Hallowey) a divorce was granted, but the wife was never punished for her actions. Did the court consider the divorce to be a punishment in itself?
Adultery was a difficult crime to prove. Since all cases involved a married woman and Puritans did not use contraception, an illegitimate child would be hard to separate from all the rest. Evidence of this is reflected in the case of Robert Badston who accused Charles Wills, "that hee had lyen w[ith] his wife, the Court, haueing examined the euidences respecting the case, did not find him guilty of that fact . . . because the said Robert Badston hath frequently companied with his said wife by beding with her, both before and after the child was borne" (PCR 5:253). It is possible that adultery happened far more frequently than we see evidence of in the records. However, the low frequencies of other capital offences may indicate a harsh legal and moral code that was well respected by the people.
Fornication was by far the most common sexual offence to come before the Plymouth courts. Between 1633 and 1691, sixty nine cases of fornication were presented. I include "carnal copulation," "uncleans," and births of illegitimate children with fornication. The enactment of 1645 that outlined the punishment for crimes of fornication distinguished between acts committed before and after the time of marriage contract. The fine for fornication after contract was only five pounds per person -- half the fine for fornication before contract. Interestingly, only four of the sixty nine cases clearly occurred during the period of marriage contract. The chart below shows the percentages of fornication cases that occurred during the period of contract, before contract but between couples who eventually married, and completely outside of intended wedlock. The split between eventually married and never married couples is a near fifty-fifty division.
In 1646, the General Court ordered that each town maintain a register of births, deaths, and marriages. Based on these registers (their accuracy is questionable) I calculated the number of marriages for each year between 1645 (some registers exist before 1646) and 1686 (the last year I have records for). Assuming that an act of fornication would be discovered within a year of the marriage, I grouped the marriages into six-year intervals. The chart below compares the percentage of marriages involving premarital fornication for each of the six-year intervals. The overall percentage of marriages involving premarital fornication for the twenty-one year period is 11%.
Throughout the history of the Colony, the punishment issued to those committing fornication was most commonly a fine or a whipping. In the event that the woman involved became pregnant with an illegitimate child, the man had to marry the woman or pay regular sums of money to the mother for the keeping of the child. Before the enactment of June 1645, the punishments for fornication seemed to be of a slightly different nature than after this date. Fines were rarely issued. Rather, those accused were sentenced to sit in the stocks or to be whipped. One man was even told to "make a paire of stocks" within the next two months (PCR 1:164). A curious characteristic of several convictions in the early 1640s was the unequal sentencing given to men and women. In each of the cases, the man suffered corporal punishment while the woman either sat in the stocks or stood by watching (PCR 1:162 and 2:37, 85-86). After June of 1645, the distribution of punishments was more equal. However, some cases emerge where only the male appears to have been punished. In these cases, the woman's name is not mentioned and the fine paid was half the amount it should have been (See PCR 4:106 for example). Moreover, the short imprisonments suggested in the 1645 act were either not carried out or did not get written in the records. The first case of fornication heard by the court after the approval of the act best illustrates the upholding of the law, except for the curiosity mention above -- the wife was not sentenced. On October 27, 1646, "John Tompson, coming into this Court and acknowledging his fault of incontinency with his wife before marriage, but after contract, was fined [five pounds] [and] imprisoned according to order, but paying his fees, was released of his imprisonment" (PCR 2:109-10). What happened to Mrs. Tompson? Under the law, she was also subject to a five pound fine.
For the most part, the fornication cases follow a pattern, but amongst them, some interesting ones stand out. Take for instance the servant, Jane Powell, who admitted to fornicating with another servant, yet escaped punishment by pleading, "shee was alured thervnto by him goeing for water one euening, hopeing to haue married him, beeing shee was in a sadd and miserable condition by hard seruice, wanting clothes and liuing discontentedly." The court saw her "expressing great sorrow for her euell" and chose to clear the sentence and send her home (PCR 3:91).
While Jane Powell received no punishment, several individuals were issued sentences that seem a touch harsher than the rest. "Sarah Ensigne, for committing whordome agreuated with diuers cercomstances, was centansed by the Court to bee whipt att the carts taile" -- a more severe whipping than at the post (PCR 4:106). In June of 1661, Thomas Burge, Jr. found guilty of committing "vncleanes" with Lydia Gaunt. His sentence included a double whipping, but the records indicate a debate "conserning the capitall letters to bee worne according to the law" (PCR 3:221). Did Thomas commit adultery? Letters were generally not worn for non-capital offences, and this case says that they were to be worn "according to the law." The only law that spelled out the wearing of letters was that of adultery.
Two cases of incest are included among those of fornication. While there is no specific law outlining the punishment for incest, the record of Christopher Winter's hearing in March of 1668/1669 declares it "a very hainous and capitall crime" (PCR 5:13). Neither case brought a full guilty verdict, so I cannot say how it would have been punished. The first case between Thomas Atkins and his daughter, Mary was presented before the Court of Assistants on August 7, 1660 and was ruled in the General Court on October 2nd of that year. The jury found Atkins not guilty of incest, but did rule that he was guilty of offering "some vnclean, insestious attempts to his daughter" while drunk. He was sentenced to corporal punishment by whipping. On March 2, 1668/1669, Christopher Winter and his daughter, Martha Hewitt, were presented to the Court of Magistrates under suspicion of committing incest. Seven points of suspicion were presented, and Martha's husband, John, and his father, Thomas, each testified before the Court (PCR 5:13-14). In June, the case came before the General Court, but "the grand enquest found not the bill, and soe hee was released"(PCR 5:21). The suspicions presented to the court included Martha's adament refusal to name the father of the child she was begotten with, and Winter's "indulgence to his said daughter since this wickednes, although knowne formerly to be very austeer to his children" (PCR 5:13).
The only written law governing attempted acts of fornication is the 1636 codification that gives the Magistrates liberty to determine punishment for "uncleane carriages" according to the nature of the offence (PCR 11:12). When a punishment was listed in the records, it commonly took the form of a fine or a whipping. These sentences reflected those issued for acts of fornication, but applied only to one individual. Had these attempts been successful, each would have resulted in a case of fornication, rape, or adultery depending on the parties concerned and their reactions. A common type of case to appear before the court was that of John Pecke in March 1654/1655. He was presented to the General Court "for laciviouse carriages and vnchast in attempting the chastitie of his fathers maide seruant, to satisby his fleshly, beastly lust, and that many times for some yeares space, without any intent to marry her, but was alwaies resisted by the mayde, as he confesseth" (PCR 3:75). Pecke was fined fifty shillings, but whippings were equally common. A slightly more unusual case was that of Nathaniell Hall, a married man, who not only used "vnciuill words and carryages towards Elizabeth Berry" but gave "writings to the said Elizabeth Berry to intice her" (PCR 5:169). He was sentenced to pay a five pound fine or to be publicly whipped.
I was surprised to discover that seven of the fifteen cases of attempted acts and propositions were attempts of adultery. In each case, a male colonist attempted the chastity of another man's wife. Several of these cases did not appear to make it past the stage of presentment, but those that did resulted in a fine or whipping. In October of 1668, Samuell Worden lodged a complaint against Edward Crowell and James Maker "for goeing in his absence into his house in the dead time of the night, and for threatening to breake vp the dore and come in att the window, if not lett in, and goeing to his bed and attempting the chastity of his wife and sister, by many laciuous carriages, and affrighting of his children" (PCR 5:8). Both men were sentenced to pay ten pounds bond for their good behavior and "alsoe to defray all the charge the Samuell Worden hath bine att in the vindication of his wifes innosensy, or to be seuerally whipt." The court then reduced the bond payment by four pounds at the "humble petition" of the two men. Earlier in the records of the colony, Richard Turtall is presented to the court "for laciuiouse carriage toward Ann Hudson, the wife of John Hudson, in taking hold of her coate and inticing her by words, as alsoe by taking out his instrument of nature that hee might prevaile to lye with her in her owne house" (PCR 3:97). His punishment was not recorded.
Attempts and propositions most commonly concern men approaching women. In one case, however, the reverse is true. On March 1, 1641/1642, Lydia Hatch appeared before the court "for suffering Edward Michell to attempt to abuse her body by vncleanesse" (PCR 2:35). At the same time, she was also accused of "lying in the same bed with her brother Jonathan" -- an act that smells of incest. Her sentence was public whipping.
I have included under the above heading those cases that did not involve an actual act of fornication, but where the behavior of the accused party led other colonists to suspect the sexual intentions of the accused. Although lascivious carriage was never clearly defined in the court records, Cornelia Hughes Dayton defines it as "sexual 'dalliance' where intercourse could not be proven" (1995:163). I think of it as everything between and including flirtations and flagrant displays of sexual intentions. Cases of suspicious conduct include those where an offence was suspected but could not be proved. In June of 1655, Hugh and Mary Cole were fined twenty shillings for "keeping company each with other in an vndecent manner, att an vnseasonable time and place, before marriage" (PCR 3:82). It is probable that the couple was suspected of fornication, but without a pregnancy, there was no proof. Several cases of suspicious conduct between a married woman and a man emerge from the records. As in the above case, the court and other colonists suspect sexual misconduct but have no proof. The court can do nothing but ask the individuals to avoid the company of one another. The March 1665/1666 case of Jonathan Hatch and Francis Crippin is one good example -- "wheras Jonathan Hatch hath bine convicted of vnnesesarie frequenting the house of Thomas Crippin, and therby hath giuen occation of suspision of dishonest behauior towards Francis, the wife of the said Crippin, the Court hath admonished him and warned him for the future not to giue such occation of suspision as aforsaid by his soe frequently resorting to the said house or by coming in the companie of the said woman, as hee will anware it att his perill" (PCR 4:117).
Alongside the common accusations of lascivious carriage, some unusual cases emerge. Ann Savory was sentenced to sit in the stocks for accompanying Thomas Lucas alone "att vnseasonable time" and "being found drunke att the same time vnder an hedge, in vnciuell and beastly manor" (PCR 3:212). The records are unclear as to whether they were both drunk under the hedge, but one can imagine what the other colonists thought of such behavior. Among the records included in this section is a possible case of homosexuality between two women. On October 2, 1650, the wife of Hugh Norman was presented "for misdemenior and lude behauior with Mary Hammon vppon a bed." She was forced "to make a publick acknowlidgment, so fare as conveniently may bee, of her vnchast beahuior," and was warned "to take heed of such cariages for the future, lest her former cariage come in remembrqance against her to make her punishment the greater" (PCR 2:163).
In addition to some unusual cases, several unusual punishments present themselves in these cases. In March of 1655/1656, John Gorum is fined forty shillings "for vnseamly carriage towards Blanch Hull att vnseasonable time, being in the night." Interestingly, Blanch Hull is fined fifty shillings "for not crying out when shee was assaulted by John Gorum in vnseemly carriage towards her vpon her owne relation" (PCR 3:97). I sense a bit of injustice and inequality in this ruling; it also reminds me of the verse in Deuteronomy where a women's cry can determine whether or not she is punishable by death. On March 5, 1660/1661, the General Court saw fit to punish two different people (one man and one woman) for their lascivious carriages by sentencing them to "sitt in the stockes, with a paper on his[her] hatt on which his[her] fact was written in capitall letters" (PCR 3:210). This was the only instance of this variety of punishment that I saw in the records.
Several of the cases that I have listed as miscellaneous could be included in the previous section, but I include them here for their uniqueness. In 1653, the General Court ordered "that Teag Jones and Richard Berry, and others with them, bee caused to part theire vnciuell liueing together" (PCR 3:37). No direct accusation of sexual misconduct was stated, but "vnciuell liueing together" could mean many things. Timothy Hallowey was fined twenty shillings "for misdemenor in frequent kising the wife of John Hathewey, and for being att the house of the said Hathewey att vnseasonable time, and for neglecting to appeer att Court according to summons" (PCR 4:50). Since he was convicted of three offences at once, I cannot say what the penalty is for frequently kissing another man's wife. At the other end of the spectrum was the case of John and Elizabeth Williams. On May 1, 1666, John appeared before the Court of Assistants to answer for several offences among those, "rendering her [his wife] to bee a whore, and for persisting on his refusing to performe marriage duty towards her according to the law of God and man" (PCR 4:121). He was not punished by this court, for the case continued into June of that year. The most unusual case I found in the records was that of Ralph Earle, who was fined twenty shillings "for drawing his wife in an vnciuell manor on the snow" (PCR 4:47).
Several times above, I began to address the issue of equality in Plymouth court sentencing. Were punishments influenced by the gender or ethnicity of the accused individuals? The very definition of adultery brings the gender issue into view. Since adultery was defined as sexual relations with a married woman, a married man received a lesser punishment than a married woman for fornication with an unmarried partner. Demos refers to this as a possible "'double standard' of sexual morality" (1970:97). Ulrich points out that the reverse was also true -- a single woman committing fornication with a married man received a lighter sentence than the single man doing the same (1980:94). However, unmarried women were sexually active for such a short period of their lives that the double standard was significant. The written law for adultery punished men and women equally, but it was not established until 1658. Prior to that, three cases were heard, and only one of them distributed equal sentences -- the case of Thomas Bray and Anne Linceford (PCR 2:28). In the other two cases, the woman's punishment was more severe. The only case heard after the 1658 enactment that brought a guilty verdict was the unclear case of Thomas Bird "for committing of seuerall adulterouse practices and attempts" with Hannah Bumpas (PCR 4:22). Only Thomas was punished for this crime, but one might conclude that Hannah protested leading to unsuccessful attempts. While the Court appeared to rule unequally in adultery cases before the 1658, the data do not allow for observations of how the pattern may have changed after that date.
Above I examined some early fornication cases where the female received a lighter sentence, but that pattern appeared to change after the enactment of the 1645 ruling on cases of "carnal copulation." The only inequality between the genders that I can determine after 1645, is the curious punishment and naming of only one partner. Often the party punished is the male, but that is not always the case (See PCR 4:162). David Hackett Fischer writes that throughout New England "men and women were punished in an exceptionally even-handed way for sexual transgressions," but in some cases of fornication "males suffered more severely than females" (1989:89)
Throughout the Plymouth Colony Records, Native Americans appeared before the court and received sentences equal to those of the colonists. Only three Native Americans were brought before the court for sexual offences. I already discussed the rape and adultery case in detail above. The third is a case of fornication where both parties were whipped at the post. Nathaniel Soule, the man involved, was also ordered "paye ten bushells of Indian corne to the said Indian woman towards the keeping of the child" (PCR 5:163). One case of fornication involving a male slave appeared in the records of the court. Like the case involving a Native American, both parties were whipped and the man was ordered to "pay 18 pence per weeke to said Bonny towards the maintainance of said child for a year" (PCR 6:177). I see only two signs of inequality that one could argue in these cases. First that the option of a fine was not included the written account, and, secondly, that the regular sums to be paid to the women are less than were customary.
The law of Plymouth Colony set forth a very high standard of ideal sexual conduct -- one might say it was an ideal adopted from the laws of their God. Sodomy, rape, buggery, and adultery (for a time) were all crimes punishable by death. Fornication and other lascivious acts outside of marriage were strictly forbidden. However, when faced with a capital crime, the court avoided execution in all but one case. While the punishments issued by the court were severe, they were not the ideal proposed in 1636. If 11% of marriages involved premarital sex resulting in pregnancy, the actual frequency of premarital sex must be even higher. I cannot be sure what the pregnancy rate was for Plymouth, but some quick calculations provide a rough estimate. If we assume 1) that women are sexually active all days of the year except during menstruation and 2) that they are fertile for only a few days each month, then roughly 1 out of 5 sexual episodes result in pregnancy -- that's a 50% rate of premarital sex. I realize that the estimate is very high, but the point is that sex before marriage was a common occurrence in the colony. The people of Plymouth respected the law and strove to live up to a high ideal of moral conduct -- this fact was reflected in the many cases where violators were brought to justice on their own accord or by a fellow colonist. Nevertheless, occasionally they faltered.