IV

 

Crime and Punishment in a Triangular Perspective:

Assessing Theocracy and the Transfer of Culture

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It would be erroneous to claim that the men who settled and built the various colonies of New England had only the prestige of the crown in mind. Their primary concern was definitely not to create an identical extension of England, a faithful imitation of what they had left behind. Though they did not officially break with the Church of England, and though they condemned separatism as an error, it seems fairly legitimate to regard the whole process of emigration from England, and edification of New England, as a form of separation, of rejection, and therefore to consider the Puritans who crossed the ocean to live in the wilderness as separatists, though not in the generally accepted interpretation that applies to the inhabitants of Plymouth.

We have seen in the preceding chapters that the influence on the magistrates and the law-makers was twofold. On the one hand, they had to comply with the terms of the Royal Charter of the Massachusetts Bay Company of 1629, lest what befell Virginia should be repeated in Massachusetts, and the relative independence they were seeking should be endangered. On the other hand, we have also seen that their primary and most fundamental motivation was the enforcement of the Special Commission, the erection of a Bible Commonwealth whose laws would be those that God had dictated to Moses, and Winthrop had pointed out to his fellow passengers aboard the Arbella that every single article was to be followed, for fear that God should unleash His wrath upon His new chosen people.[1]

A study of the laws of the New Englishmen is therefore necessary for the following reasons. By analyzing their laws, we shall be able to determine which model they followed in theory. Logically, a mention of the theory implies that the practice must also be examined, to discern whether there was a gap between what they preached and what they actually did. The purpose here is therefore to assess whether the settlers put their religious ideas into practice, and if so to what extent. Our aim is also to assess how closely the English system was replicated, consciously or not, as has already been alluded to. By conscious importation of the English system is meant an intentional restriction to the passing of laws "not repugnant to the laws of the realm", as the Charter prescribed. A concrete illustration would be the establishment of a judicial system with the same courts as those existing in England, a system in which, as we shall soon see, the most serious crimes, those punishable by death, would be judged by Courts of Assizes, whereas the lesser offenses would be judged by Courts of Quarter Sessions and justices of the peace. It would also imply the duality between secular and ecclesiastical courts. Such an imitation, such a transfer of culture, can be made consciously or not. The settlers either reproduced the system they had always known voluntarily, because they did want the new system to be as close as possible to the old, for they thought it was good enough to be reproduced. On the other hand, they might not have been desperate to reproduce the English system, but shaped theirs according to what they had always known.

These questions will enable us to further our analysis on theocracy, or at least the theocratic elements of New England. We have already gathered clues such as the restriction of the electorate to the regenerate, or the active participation of the clergy in the drafting of legal codifications, which, if not pointing towards total theocracy, then implied a considerable inclusion of the religious world into the political and legal realm. In this chapter, some features of the judicial system, the scripturality of the laws, and the regulation of religious matters such as the support of the Church, breaches of the Sabbath or the treatment of religious dissent, will be as many hints toward a better understanding of the actual relations that existed between Church and State in New England. Most historians have recently claimed that New England and Massachusetts in particular were not theocracies because there was a greater separation between Church and State there for the simple reason that the clergy could not hold office and had no direct political and judicial authority.[2] We shall thus see if this argument is acceptable or not.

I resorted especially to secondary sources for this chapter because the alternative solution - using court records - would have taken too much time, and because New English court records are extremely hard to have access to from Great Britain and France. There are few quotes from primary sources as well, simply because more would have taken far too much room. However, the most important texts have been quoted.

 

1.    The Judicial Systems in Early New England and Early Stuart England Compared and Contrasted.

 

It is hardly possible to understand and comment upon the theme of crime and punishment in New England without always keeping in mind its English pendant. Similarly, any such study should start by an overview of the framework in which the judges and the accused moved, i.e. the judicial machinery, the different courts and their jurisdictions, and also mention a few particular actors and procedures that could prove relevant to our purpose.

 The judicial machinery in all the Puritan colonies followed a similar pattern in their nature as well as in their evolution. Starting with Plymouth, the oldest colony, we may observe that the first part of its history was marked by a monolithic system: the quarterly General Court, composed of the governor, the deputy governor, the assistants and the deputies (after 1638), had unlimited jurisdiction - at least up to 1666. The Court of Assistants, composed of the same members but for the deputies, was "concurrent" with the General Court.[3] These twin courts operated alone until 1636, when Justices Courts run by individual assistants tried minor offenses, thus relieving the General Court and the Court of Assistants, that were left with the more serious offenses. It is already noteworthy that it was officially admitted that "the magistrate has his authority from God,"[4] a feature that was not distinctively Puritan since the ideal of the godly magistrate as a "minister of God" was also widespread in England.[5] The same organization was in vigor in Massachusetts from 1630 to 1648, the only differences being that the deputies entered the General Court four years earlier than in Plymouth, and that two assistants instead of one were required to order a whipping in Justices Courts. The system became a little more complex in 1648, when a Strangers Court composed of the governor, his deputy and two assistants was introduced to try non-residents, and Town Courts were instituted to try minor offenses. The system in Connecticut was much simpler, for the General Court was the only existing court before 1650, when Town courts were created to handle minor offenses, thereby discharging the General Court.

With these brief features in mind, let us survey the system in the England that the builders of the colonies had left, that is late Elizabethan and especially early Stuart England, and search for convergences and differences between the two systems, imitations or innovations on the part of the settlers, and thus study the New English system in the light of its Old English counterpart.

To fully grasp the English judicial system we must remember that the most fundamental priority of English law was to protect private property and authority in order to preserve order above all.[6] This correlation between possession, merit and power stemmed from the feudal tradition that was at the origin of the European land-based aristocracies (in the sense of nobility) and reinforced by the Puritan ethos that held affluence as a sign of salvation and merit.[7]

The first resemblance we can find with New England is in the nature of the Court of Star Chamber. This court - a Tudor innovation - was actually composed of the members of the Privy Council rendering justice on the king's behalf. Since both the Privy Council in England and the assistants in New England can be seen as an archaic form of cabinet, the parallel is easy to make. We must remember that the Court of Assistants was established by the Charter of 1629 and not by the settlers, but the resemblance is quite striking. The Charter provided for a system that was in every point parallel to the English system: the governor was the colonial (though removable) pendant of the king, he was advised by a council - the Assistants - which also served as a judicial body.

However the English Court of Star Chamber was a central court that cannot be said to be very representative of the whole English system. Far more revealing are the Courts of Assizes and the Courts of Quarter Sessions. The Assizes Courts handled the most serious crimes usually punishable by death, known in England as felonies, and were the main criminal courts of the realm. Among felonies there could be counted homicide, grand larceny (theft above a certain value), burglary, rape, arson or witchcraft. The courts of Quarter Sessions, held quarterly and presided upon by justices of the peace, tried misdemeanors, and very seldom sentenced the accused to death. Interestingly enough, the least serious of these misdemeanors were tried in monthly Petty Sessions aimed at discharging the quarterly meeting of small offenses. These sessions were recognized by statute in 1631, but they had existed for a long time in the counties of Essex and Norfolk - from which many New Englanders came.[8] We can recognize in both these courts features of the quarterly General Courts and the monthly Courts of Assistants of New England. The New English system was simpler insofar as, at first at least, a unique court adjudicated the whole range of "crimes" from petty offenses to felony. The General Court, as established by the Charters, looked like a combination of the Assizes and the Quarter Sessions. This conscious effort of transfer in the Charters was supplemented by the decision made by the settlers but absent from the charters to have monthly intermediary courts to discharge the quarterly sessions.

In order to make our description accurate, we must also mention the manorial courts such as court leet, that tried cases of petty theft and assault and bloodshed, provided they were not serious enough to be tried in the county courts above-mentioned. These courts were very significant because of their local character and of the self-governing nature of the government of the manors caused by absentee landlords. The homogeneity of the social status of the men elected to the positions of manorial judges once more reflect the hierarchical and deferential character of early modern English society. They were almost systematically drawn from among the wealthiest villagers on the commonly accepted assumption that wealth, respectability and godliness were inextricably intertwined.[9] What was valid for manorial judges also applied to justices of the peace. They were appointed by the king, or the lord chancellor, and since the traditional twenty-pound freehold qualification was obsolete by the time Elizabeth became queen, they were systematically drawn from the "upper echelons of rural society" so that they be of "sufficient wealth and local standing to command the respect due to the office."[10] If English legal and judicial practices were exported to New England, so were perceptions of society. We have seen in the previous chapter that the situation in New England was similar, since the magistrates but also the selectmen were usually chosen - by the "people" - from among a natural aristocracy of men whose godliness commanded respect, and whose wealth and possession were thought to be justified by their virtue.

Also drawn from the wealthier class in the English villages were the churchwardens, who were to detect and report offenses to the Archdeaconry Courts, more commonly known as church courts. By determining what was a fault to be reported and what was not, they imposed their standards of godliness upon the inferior classes of the village.[11] The ecclesiastical courts were an extremely important element of justice in the parish that was not imported to New England. Since the good citizen could only be a good Christian, as it was supposed, they had to upkeep the moral standards, and to that end, they regulated and punished cases of sexual immorality and other misconducts such as drunkenness, or offenses more religious in character, like absence from church or Sabbath breach.[12] Like the secular arm of the judicial system, its ecclesiastical arm was concerned with the preservation of peace and order, and this was to be achieved through the enforcement of religious uniformity and orthodoxy. Naturally, this feature could not please the Puritan dissenters, Separatist or not, who disliked the church courts that oppressed them. If this was not a sufficient reason for them to hate these courts, they were seen as the epitome of the Catholic past of England, of which they were a remnant, and their treatment of adultery for instance was found too mild by Puritans if not treated as a capital offense.[13] These three reasons very plausibly account for the omission of this important feature of early modern English justice in the New English system, and consequently for the fact that the scope of cases handled by the church courts was included into the jurisdiction of supposedly secular courts like the General Courts. Under the regulations of the Charter of 1629, the magistrates could build any system they wanted provided it was not repugnant to the laws of England, so it was perfectly legitimate that they combine church courts, courts of Quarter Sessions and Assizes Courts into one body, but they could also have transferred the English system unaltered and still be within the terms of the Charter.

Although opposed to the church courts, Puritan ministers and church wardens used the system to enforce righteousness and godliness. The arrival of a Puritan minister in a parish would noticeably alter the pattern of convictions, and a new Puritan minister often meant a closer scrutiny of the mores of the parishioners, resulting in more convictions for sexual misconduct, absence from meeting or drunkenness. It is also noteworthy that ministers - Puritan or not - played a conspicuous role in the judicial process through the traditional assize and gallows sermons. Every time the court of assizes sat, and every time a felon was hanged, there would be a sermon, "invariably extremely conformist in tone", emphasizing the role of justice as "the bond that knit the limbs of the body politick together", preaching obedience above all and presenting disobedience to superiors as a sin, and on the whole lecturing the audience into the right path.[14] The considerable weight exerted by the clergy through its courts as well as his sermons in Old England illustrates that New England was not so different from the mother country insofar as sermons traditionally preceded every election court in at least Massachusetts and Connecticut,[15] and that, if not present as such in New England, church courts were not totally absent since the scope of their jurisdiction was handled by the General Courts at first, and then by all the range of courts throughout New England. The very existence of an ecclesiastical arm to justice as opposed to its secular arm shows a distinction and a duality between judicially religious areas and areas wherein religion was technically[16] absent in the English system. The absence of such courts in New England does not mean that they had been done away with altogether, and therefore does not imply that an entirely secular justice was enough to claim that New England was not a group of theocracies. On the contrary, rather than suppressed, the church courts had been merged into a unique single body that was thus not wholly secular and not wholly religious: both aspects were inextricably mixed, and were not distinguished, as in the English system, where the two poles were also present but distinct.

The whole process of transfer of social assumptions and judicial organization and character can also be found in the practice described by Edgar McManus as "holy-watching", a system of mutual surveillance wherein the holy-watcher who reported his neighbor's sin was thought to protect society at large, and for that reason he was rewarded with a share in the potentially resulting fine. It must be reminded that not to report an offense was in itself sinful by making oneself an accomplice in the eyes of God. This practice fits very well indeed with the traditional image of the American Puritans as a group of grimly-clad killjoys spying on each other. Yet it was not specific to them, not even to the Puritan community taken in its transatlantic entirety. Indeed, James Sharpe has discerned in the Englishmen of the time, regardless of their religious inclination or dedication, a "willingness to mind each other's business" while Martin Ingram has argued that "the various activities such as peering through a window or bringing witnesses to look too were specifically laid down in Canon Law as acceptable modes of proof" and he continues in describing such a practice as "carefully planned, legally purposeful activity."[17] More than the potentially attractive share in the fine, this could be an effective means to have the two eyewitnesses necessary for a conviction as specified in Deuteronomy 19:15 and subsequently in Article 47 of the Massachusetts Body of Liberties of 1641.[18]

 

2. A Triangular Analysis of Criminal Law.

 

An assessment of the extent of theocracy in New England as well as of the transfer of culture from Old to New England is not possible without a close examination of the laws - and more specifically of criminal laws - in a triangular perspective, and of their actual enforcement. The method chosen here has been to split a broad sample of crimes, sins or offenses into categories, for each of which illegal activity the three legal prescriptions - Old and New English and Scriptural - will be compared.[19]

It must be kept in mind that the very notion of "crime" will be understood in a different manner in different times and places. Since in the seventeenth century, and even as late as the end of the eighteenth century, both in Old and New England crime and sin were difficult to differentiate, we should follow James Sharpe's definition of crime as "behaviour regarded as illegal and liable to prosecution by a given community at a given time."[20] Because adultery or premarital sexual intercourse (henceforth to be referred to as "fornication") were considered as crimes in New England but only as sins in Old England, we will use both terms interchangeably, unless otherwise specified, and reserving the term "offense" for less serious reprehensible activities, to avoid the awkwardness of the latter expression.

As far as the Bible is concerned, we shall limit our analysis to a systematic study of the Pentateuch, and especially from Exodus to Deuteronomy, therefore during the journey of Moses and the Hebrews from Egypt to Canaan, during which time God dictated His commandments to Moses, which the Hebrews were to follow in order to keep the Covenant. By the time Moses died, at the end of Deuteronomy, we can consider that the Law (in the Jewish tradition, the Pentateuch is called the Torah, which means the Law) was entirely enunciated.

The crimes have been sorted into the three following categories: serious crimes - or "felonies" in England - threatening life or property, namely the various forms of homicide and theft, and arson; sins and offenses then supposed to go against morality and God, such as sexual misconduct, drunkenness, gambling, verbal violence, and "excess in apparell" as it used to be called; finally, religious crimes explicitly originating from the Bible, like idolatry, blasphemy, heresy, witchcraft and the violence, both verbal and physical, of a son toward his parents.

 

a) Serious Crimes, Threatening Life and Property.

 

The various forms of homicide include not only murder with malice aforethought and manslaughter but to a certain extent arson, though it was seen more as a threat on property than on life in Old England. In spite of the apparent complexity implied by the factor of premeditation, homicide is a relatively easy case. The first written codification of New England, the 1636 Plymouth Constitution, singled out "wilfull murther", and made it a capital crime. In its Article 94 listing the capital crimes, the 1641 Massachusetts Body of Liberties surprisingly equated "wilfull murther" and manslaughter, describing killing through cruelty and malice, unnecessarily, not in self-defense and not accidentally. It is interesting to note that the marginal Scriptural references were totally not appropriate. The codes of Connecticut (1639 and 1650) and New Haven (1656) also punished premeditated murder by death, and so did Rhode Island (1647). In England, murder with malice aforethought was always outside of benefit of clergy, which meant that they could not be excused on account of the accused's literacy and commuted into milder punishment than death. Killing by stabbing was equally made "non-clergyable" in 1604. The Bible is fairly clear on the issue: apart from the sixth commandment, murder through guile was punishable by death.[21]

The case of manslaughter is less universal: all types of homicides were punishable by death in New England except in cases of self defense, though in England manslaughter was clergyable, and therefore not capital, because not premeditated and therefore not evil since committed in hot blood. Only Rhode Island imported benefit of clergy and applied it to manslaughter, consistently with the practice in Old England. Similarly, the Bible provides for "cities of refuge" for the manslayer, the unpremeditated or accidental homicide, and therefore made a crucial distinction between voluntary and accidental killings.[22]

Arson, a "potentially lethal" crime that could not be legislated against in the Bible, because of the nomadic way of life of the Hebrews, was capital in England, and progressively became so throughout New England, in Plymouth in 1636, Massachusetts in 1652, New Haven in 1656 and Connecticut only in 1673.[23]

The legislation on crimes against property was much more complicated in England than in New England or in the Bible. Picking pockets and horse-theft were both outside benefit of clergy, as was grand larceny (good valued above one shilling) and burglary, though petty larceny was clergyable. In New England, robbery and burglary were capital only after the third offense, because it meant that the thief was incorrigible and utterly wicked. In Rhode Island, following the English practice once again, the guilty party had no second chance. However, manstealing, robbery and burglary (on the third offense) were not made capital before Massachusetts gave the example in 1648. For non capital cases of theft, the New English colonies generally followed the Biblical principle of restitution of three times the value of the stolen goods.[24]

In spite of a few divergences like the harsher treatment of homicide and the more lenient treatment of theft in New England, the treatment of felonies was not fundamentally different in New England. Moreover, although there were departures from the English legislation, perhaps more significantly, the Mosaic code was not literally enacted either. More revealing of the Puritan vision of order was the legislation against what was considered in England as sins or misbehavior - with a few exceptions - and that was handled sometimes very differently by the Puritan legislators. This is understandable on the part of Puritans since they saw sin as the main obstacle on the path to their ultimate aim, salvation. However, it would be fallacious and stereotypical to make a clear-cut distinction between sinful and self-indulging England, and godly and righteous New England. In England too, it was commonly assumed that "Divine wrath would be unleashed upon the Nation if sin went unpunished."[25] In theory, immorality was fought similarly on both sides of the Atlantic, the major difference being that it was church courts that dealt with such cases in England, and supposedly secular courts in the colonies.

 

b)  Sins and Other Offenses against Morality and God

 

Amongst the wide range of immoral activities, the struggle against sexual misbehavior is quite revealing of the mentality both of Puritans and their other English contemporaries. As early as 1572, in an admonition to Parliament, the Puritan members denounced the church courts as dealing too mildly with "whoredoms and adulteries" and proposed to have those sins punished by death or corporal punishment rather than by "toyish censures."[26] Whatever the penalties inflicted before the Great Immigration, it was generally accepted that fighting sexual offenders was "essential for the well-being of the commonwealth."[27] The English, far from being all Puritans, were more concerned with the protection of order than with salvation at all costs.

Still, some sexual crimes were capital in England, such as bestiality and sodomy (male homosexuality, which, interestingly enough, was decriminalized there in 1967 only) since the Tudors. Edgar McManus quotes the famous example of Lord Castlehaven, hanged for sodomy in 1631. These sins are explicitly and unequivocally dealt with in the Bible. Both were "abominations to the Lord" and therefore to be punished by death. In cases of homosexuality, both men were to be killed, and so were both the culprit and the unfortunate animal in cases of bestiality. In Plymouth as early as 1636, both crimes were capital, as they soon became throughout the colonies and remained throughout the seventeenth century. The Body of Liberties, representative of all other codifications, called for literal observance of the Scriptural laws. Only New Haven departed from the other colonies and England, in going even further: not only male homosexuality but also lesbianism were capital crimes. It is notable that the Pentateuch does not mention lesbianism at all and that the only mention in the whole Bible is in Paul's Epistle to the Romans. New Haven had gone as far to make male masturbation capital (justified by Scripture as unnecessary wasting of seed not aimed at reproduction, just like homosexuality and bestiality) whereas English Church Courts did not punish such a practice at all.[28]

Shifting to forms of intercourse that, though unlawful, were at least considered as natural, we cannot omit the cases of premarital fornication and adultery. In a large measure, close encounters and intercourse were tolerated in England for couples "seriously courting" or engaged. However, this toleration waned in the 1620s and 1630s, and a growing number of couples were tried for prenuptial intercourse. Though chastity was increasingly emphasized upon, the penalty required was commonly public penance only - a form of humiliation we shall discuss below - occasionally replaced by whipping in Puritan-dominated areas. Martin Ingram indicates that, if they got married, couples detected were not punished - a practice consistent with the Mosaic code - but also that "prosecution had become commonplace" by the time Charles I acceded the throne.[29] In 1650 Cromwell had a law passed that made fornicators liable to three-month imprisonment on the first offense, and to death on the second offense. That law was immediately repealed with the Restoration in 1660. The New English colonies never went as far as making fornication capital. Plymouth made it punishable to a fine and whipping but only if the couple were not engaged. Massachusetts preferred humiliation, by making the guilty parties stand on the market place - a practice in keeping with pre-Puritan England, though it could also be punished by whipping. When a child resulted, the man was to pay for its sustenance.[30]

The treatment of adultery is probably one of the most conspicuous departures from the law of England in order to follow the Bible. Church courts punished adultery by penance, and sometimes by excommunication (and thus possible disenfranchisement), yet more systematically than they punished fornication. Only with the law of 1650 was it made capital, even though that law has generally been described as a dead letter. The Bible made adultery a breach of the seventh commandment, and always demanded death for the offenders. Another huge difference between Old and New England is that Old England considered as adultery every case in which either of the wrongdoers was married, whereas in New England, consistently with the Bible, the marital status of the man did not matter. If the woman was married or engaged, the couple had committed adultery, if she was not, they had committed fornication, even if the man was married. Adultery was made capital as early as 1631, and gradually throughout New England except for Plymouth and Rhode Island - which is not surprising since that colony closely followed the laws of England.[31]

Apart from adultery and fornication, the 1650 Law also made incest a capital felony. By incest we must not only understand sexual intercourse - and marriage - between father and daughter, but more broadly between relatives, as a man and his deceased wife's sister. Before 1650, it was tried in church court, however rarely, and consequently liable to public penance. Surprisingly enough, only one New English colony legislated against incest - and made it capital - and it was New Haven. The other colonies did not even mention it, Edgar McManus argues, because of a "tendency toward endogamy in the early settlements." He notes that the 1656 New Haven codification "adopted the Old Testament regulation verbatim." Indeed, especially in Leviticus, incest, through an extremely complex and detailed set of provisions, had been made capital.[32]

More uniformly, rape was capital everywhere - even in the Bible, contrary to McManus' claim that it was not legislated against therein. It was a capital felony outside benefit of clergy in England, and capital as well in Plymouth in 1636, Connecticut in 1642, Massachusetts in 1648, Rhode Island in 1647 and 1656 in New Haven, where the death penalty was "not mandatory."[33]

Besides sexual misconduct, the fight against immorality was extended to drunkenness, gambling and verbal violence, which according to Ms. Hemphill was more widespread than physical violence like assault and battery. She also claims that drunkenness and defamation were the two most common charges for which men were tried in seventeenth century Salem.[34] The reason why such offenses should not be left unpunished both in England and in the colonies was what we could call the stepping stone theory, as it can be perceived from the declarations of felons about to be hanged. In emotional confessions, they warned the audiences that small sins inevitably led to crimes and eventually to the gallows. The classic path started with absence from church and Sabbath breach, then on to keeping bad company, to frequenting the ale-house - were one would be tempted into gambling - and the "bawdy-house" (the brothel), which in their turn led to robbery and finally to murder and the scaffold. Consequently, rooting out small offenses such as absence from meeting, drunkenness and gambling took a more important social dimension. In England, such immoral behavior was dealt with in church courts and then liable to humiliation. Though it existed in Ancient Israel,[35] it was not explicitly legislated against in the Pentateuch. In New England, the numerous regulations which can be found in, among others, the 1648 Body of Laws insisted on preventing drunkenness by specifying the legal maximum amount of alcohol that might be served in ale-houses and restrictions on time to be spent there. Yet the lack of specific legislation against drunkenness itself - the state of being drunk - meant that punishment was left at the magistrates' discretion and not that it was left unpunished.[36]

An activity that Puritans from both sides of the Atlantic abhorred was gambling. In Plymouth, gambling with dice or cards was liable to a forty-shilling fine. In Massachusetts, gambling was considered as a waste of money, "tyme and beere"[37], and associated with idleness and the ale-house, therefore gamblers were fined three times the amount staked and winners were forfeited all they had won. The very possession or introduction of cards or dice into the colony were punishable. However, England also had laws against certain games[38] and there had been court actions against some forms of popular recreations such as maypoles, revels, bear-baiting, and cock-fighting. If such reactions were consistent with the Puritan vision of morality, it must be admitted that they did not prevail in England, even though they were on the increase in the 1620s. [39] It is also interesting to remark that smoking in public, though very fashionable in early Stuart England, was deemed indecent and liable to a fine in Plymouth.

"Excess in apparell",[40] as extravagance in attire was commonly called, was also judged as immoral and "intolerable"[41] by the ruling elites of the colonies, and especially of Massachusetts, and the legislation against it therefore reflected the aristocratic and class-conscious frame of mind of seventeenth-century Englishmen and not only of Puritans. We noted in the previous chapter and in this one that the English society was strongly hierarchical and deferential and that this argument was valid on both sides of the Atlantic and visible in Massachusetts in the pattern of "creating aristocrats"[42] by returning the wealthiest members of the community as selectmen on an quasi-systematic basis. This hierarchical frame of mind was even more developed amongst Puritans than amongst other English people, since the former's extreme belief in predestination made them argue that it was God who gave man his social status, that it was Him who made some rich and some poor, as John Winthrop declared in his Modell of Christian Charity,[43] and that it was going against God's will for man to assume a place on the social ladder that was not his. This was exemplified by people commonly described as part of "people of mean condition"[44] who "exceeded their ranks"[45] and dressed like the more affluent members of society. Moreover, it was a sign of pride, vanity and moral decay. Yet it was not a Puritan innovation and even less one of the settlers. James Sharpe cites the example of the English village of Acomb, which was presented to the manorial court "for wearing felt hats on the Sabbath contrary to Elizabethan sumptuary legislation." That it was on the Sabbath makes things a little more complicated, but the example proves that there were sumptuary laws in Elizabethan England. In Massachusetts, they appeared as early as 1634, yet not calling for specific penalties. People were to dress with "frugality and modesty", and accept the place that God had given them in society. Since the law was not enforceable, a new one was passed in 1651 that applied only to the lower orders of society. Each offense was to be punished by a ten-shilling fine. Yet, magistrates, public officials and their families were free to dress according to their own discretion.[46]

Verbal violence, especially defamation, cursing, swearing and threats, were dealt with by church courts in England and liable to various types of punishment in New England depending on the person abused - especially if they were ministers, church members or magistrates - and to the criminal past of the offender. Generally, verbal violence was liable to fines, but punishment could go as far as banishment. Verbal wrongdoing in the Bible was limited to blasphemy, cursing one's parents and false witness to take life, all of which were capital. Perjury to take life became capital in most colonies.[47]

 

c) Specifically Scriptural Offenses.

 

Blasphemy, along with idolatry, heresy and "cursing or smiting"[48] one's parents and witchcraft, fit into the category of serious offenses against religion explicitly codified in the Mosaic law. Besides the offenses we have mentioned in the previous paragraph, the others were also capital in the Bible, and the wrongdoer was to be stoned to death. Though witchcraft was a capital felony in England, and though the emphasis on religious uniformity demanded the banishment or execution of heretics and other religious dissenters, there was no specific disposition there against the sons who cursed and smote their parents, apart from assault and battery. However, the other offenses were not treated lightly and cannot be dismissed as secondary to other felonies. In New England, witchcraft - understood as contacts with the devil or "familiar spirits"[49] without the English distinction between harmless white magic and satanic black magic - was capital in every single colony. In Massachusetts, idolatry, witchcraft and blasphemy were the first three items on the capital list of 1641, supplemented in 1648 by children over sixteen who smote or cursed their parents - the Bible set no age limit - and "stubborn and rebellious sons"[50] also over sixteen. These crimes were not capital in Plymouth before 1671, when the colony was more than ever under the influence of Massachusetts,[51] whereas Connecticut had followed the lead of Massachusetts in 1650. However, Plymouth innovated in 1655 by passing a law which called for corporal punishment for anyone who would deny the Scriptures as the "rule of Life."[52] Rhode Island, which bore the closest resemblance with England only made witchcraft capital in 1647.

Thus we can discern a tendency on the part of the New England settlers to follow the Bible fairly closely, but not quite systematically. The capital list might be deceptively impressive, for its Scriptural references are sometimes erroneous or far-fetched. McManus has justly described the use of the story of Korah in Numbers 16 as a "stretched" interpretation of Scriptures on the part of the Massachusetts magistrates to justify the inclusion of rebellion and conspiracy into the capital list in 1641. In the article calling for the execution of any murderer, one marginal reference refers to the cities of refuge to protect the lives of manslayers from revenge. Moreover, even a capital list almost entirely justified by scripture does not mean that the whole penal system of New England reflected that of Ancient Israel. Some offenses were almost similarly punished as in England, and the New Englanders did not add many crimes to those already penalized in England, either by secular or ecclesiastical courts. Consequently, the systems of the Northern colonies were fairly unique combinations of Scriptural and Common Laws, that drew on the law-makers' experience of the Common Law system - we must not forget that Nathaniel Ward, who drafted the 1641 Body of Liberty, had had a ten-year experience of the law back in England - and their ideal of the Special Commission toward New Jerusalem. Reverend Ward, as a law-trained minister, remains the perfect personification of this combination. However this must not be seen as a fusion between a secular Common Law and a divine code resulting in the hybrid system described. James Sharpe, one of the most authoritative historians of early modern English criminology, has described "human law" in the seventeenth century in general and thus not only in England as "something more than merely human: it was a reflection of divine will as to how the world should be ordered, and a set of precepts by which the Almighty informed men on how to tell right from wrong."[53] John Winthrop would have wholeheartedly agreed with that conception of the law. But if indeed the law was so perceived in both Old and New England, it was the way it was applied in practice that will tell us more about the gap between the colonies and the mother country, if gap there was, of the relative originality of the New England colonies, and thereby whether or not their justice systems were close enough to the Bible to be called theocratic.