IV. PRE-CONTRACTS, BUNDLING, AND SEXUAL IMMORALITY
The colonists were extremely anxious to restrain vice by legislation. The whole field of private morals was brought under the purview of the magistrate. Unchastity and sexual crimes, especially, they were determined to prevent at all hazards; and, in consequence, the early colonial and court records are far from pleasant reading. Conjugal infidelity is especially abhorred by the lawmaker. Originally, in all the New England colonies save Rhode Island and Plymouth, death was the penalty prescribed for adultery with a "married or espoused wife." In the New World the Puritan thus actually realized what Luther, Hooper, and other Reformation Fathers ardently desired as an ideal fulfilment of the Mosaic code.[512] The capital law of Massachusetts, at any rate, was not a dead letter, as is clearly shown by the records of the early period. The only attempt to put in force the original act of 1631 was, indeed, a failure. It appears that in 1637 two men and one woman were convicted; but on the ground that the statute had been "made by the court of assistants by allowance of the general court," and for fear lest it had not been "sufficiently published," the extreme penalty was not administered. Instead the culprits were whipped and then banished on pain of death should they return.[513] The act of 1631 was, however, at once confirmed,[514] and it remained in force until superseded by the "Body of Liberties," whose provision on this point was not abrogated during the period of the colonial charter. Under the law as thus constituted two persons were condemned and executed in 1644.[515] Further, in his _Magnalia_ Cotton Mather mentions the execution of an adulterer from Weymouth.[516] These are the only cases of capital punishment for this offense yet discovered; but a number of persons narrowly escaped it, where the evidence seems sufficient to warrant the death penalty. Apparently the courts shrank from pronouncing sentence according to the full rigor of the law,[517] satisfying themselves with lesser punishments, such as imprisonment, banishment,[518] or whipping.
[Footnote 512: _Mass. Col. Rec._, I, 92 (1631); WHITMORE, _Col. Laws of Mass._ (1660-72), 55 ("Body of Liberties," 1641), 128; _ibid._ (1672-86), 15; _New Haven Col. Rec._, II, 577; TRUMBULL, _Blue Laws_, 200; _Conn. Col. Rec._, I, 77; TRUMBULL, _op. cit._, 60; _New Hamp. Prov. Papers_, I, 385 (Cutt Code). Beginning with the "Body of Liberties," 1641, the capital law of Massachusetts cites Lev. 20:19; 18:20; Deut. 22:23, 24; and the laws of the other colonies are supported by the same or like passages of the Jewish Code.]