3. Theory and Practice: Beyond the Laws, the Actual Treatment of Crime.

The previous discussion would not be complete if we did not go beyond theory, since trying to draft laws as close as possible to the Bible was not enough to enforce the Special Commission: the settlers were supposed to live up to these laws, or "to walk by God's laws" as the covenants asked for. However, some offenses were made into capital crimes because the Puritans "felt bound"[54] to do so even though they knew they would not apply these laws literally. Did this - not obeying literally and systematically every single article of God's law - make them covenant breakers like Saul? A study of the laws of England is made difficult by the fact that they were few, apart from the statutes made by Parliament - especially for capital crimes - and the Canon Law intended to be followed by the church courts. The English system is indeed famous for its tradition of relying on customs, precedents and case-laws. Therefore, a study of the actual punishment is more revealing. Quite contrarily, if the Mosaic code is easily available, there is no way to find out whether God's articles were scrupulously followed, and this is far from our point. The Bible was used by the magistrates as a series of laws they were to enforce. To determine whether these magistrates applied their laws literally or whether they differed from them will enable us to find, in spite of the loose interpretation of the Bible that their laws reflect, how closely they enforced the Commission, and at the same time to compare the actual, and no longer theoretical, treatment of crimes and sins. The practice in Old and New England was indeed more similar than the theory might at first let suppose.

Instead of reproducing the previous catalogue and looking at the usual punishment for each type of crimes we shall prefer a more thematic approach. We shall indeed examine the different categories of penalties decided by the New English judges, and see whether or not they reflect the letter of the law, and to what extent they resemble the practice in England. These categories will be physical suppression (death and banishment), corporal punishment (and especially whippings and sitting in the stocks), fines, and humiliations (including penalties with social and political consequences, like disenfranchisement or excommunication).

a) Death.

Given that a human life was at stake in every capital case, these cases had to be handled quite cautiously and though "throughout the period the criminal law was harsh and becoming harsher, likewise ... its full harshness was being applied increasingly sparingly."[55] Indeed, this description of the gap between theory and practice in England perfectly applies to New England given the number of occurrences of crimes technically capital that were actually punished by corporal punishment. The rationale behind that was, at least in England and most probably so in New England, that death was reserved to "unrepentant" and "hardened" criminals who were "dangerous enough to deserve it."[56] Criminals were at first "offered opportunities for rehabilitation,"[57] a second - and sometimes a third - chance to mend their ways, and if that failed, then society would protect itself by getting rid of a harmful element. Of course there were some clear-cut cases where death was applied on an almost systematic basis, like murder (with a one-hundred percent ratio in Plymouth and Rhode Island) or bestiality.[58] But on the whole, in New England, capital punishment for a capital offense was rather occasional, if not unusual. Only one couple of adulterers were hanged in Massachusetts, though the crime was made capital as early as 1631. Only one man accused of bestiality was hanged in Plymouth. In Cheshire, England, eleven people were hanged for witchcraft between 1580 and 1709. Likewise in Sussex, England, thirty-three prosecutions for witchcraft led to one execution.[59] Comparatively, in Massachusetts, four witches were executed between 1648 and 1665, out of fourteen cases. New Haven and Plymouth never executed anyone for witchcraft.

Besides benefit of clergy, England had developed a whole system of alternatives to escape the death penalty. Convicted felons could be pardoned by joining the army or the navy, or, if they were pregnant women, by claiming "benefit of the womb."[60] Grand larceny, above one shilling, was often reduced by the judges themselves to petty larceny by altering the value of the goods stolen.[61] In New England, robbery and burglary came to be capital after the third offense - the first two convictions resulted in corporal punishment such as branding and ear-cropping. If after that someone was convicted a third time, he was judged hopeless and deserved death.

The number of executions was also kept low by the two-witnesses rule that the Puritans drew from the Old Testament.[62] Professor McManus gives the most interesting example of a man convicted to prison for bestiality in New Haven in 1657. The reason why he was not executed was that there had been only one witness, which meant that the crime had actually taken place, but one witness was not sufficient to sentence someone to death. One of the magistrates had the suspect confess his crime during his time in prison. By the end of the week, he was hanged: a confession was considered as the testimony of an eyewitness, the magistrates therefore had the two witnesses necessary to have him hanged.[63] The other form of physical riddance of unwanted people was banishment. This penalty applied as we shall see to religious dissenters, but was also applied to cases like perjury, adultery, or adulterous behavior, though it was very far from being representative.[64]

b)  Corporal Punishment

Corporal punishments were much more frequent penalties, and especially whipping, though it was supposed to be reserved for the more serious crimes, while the stocks were used for petty offenses. The first striking feature of whipping was that Massachusetts and New Haven limited the penalty to forty stripes. [65] This becomes interesting in the light of Deuteronomy 25:3, "Forty stripes he may give him, and not exceed." Once again, it was a biblical precision that inspired the law-makers. Whippings must have been more frequent in New England than in Old England, since most of the people whipped in New England would have been judged in church courts and therefore the typical penalty would have been public penance, a humiliation we shall soon come back upon. The number of lashes and the number of whippings - some people were whipped in two or three different places - depended on the seriousness of the crime committed, but whipping applied to a very wide range of offenses, especially sexual misconduct from fornication and adultery to suspicion of bestiality, a majority of theft cases, but also often to burglary or arson. In Plymouth, whipping became the official penalty for adultery - along with wearing the famous letters AD - and was the common practice in the other colonies in spite of the capital status of the offense. In England, especially in the 1620s, cases of adultery were increasingly dealt with by JPs, and more men than before were whipped, thereby establishing a precedent for the men who emigrated to New England to follow: although only a minority of the cases resulted in whippings, it had happened and no doubt inspired Puritan magistrates who wanted to be harsh on adultery. One important rule about corporal punishment was that a gentleman could be fined instead of being whipped. Forty-four out of a sample of forty-seven reduced penalties concerned men of the upper ranks of society.[66] They would therefore be offered a chance to avoid the humiliation of public whipping, a subject we shall develop in the discussion of humiliating punishments.

c) Fines.

Fines were much more frequent than corporal punishments, and mostly concerned misdemeanors but not only. Although the upper classes tended to be more frequently fined and the lower classes more frequently whipped, we must not deduce that wealth implied more leniency and a privileged status: when wealthy men were actually whipped they tended to be more severely whipped, and when fined, more heavily fined than their poorer contemporaries, partly because "more was expected from them",[67] partly because magistrates knew they could ask more from them. In a way, this practice once more reveals the aristocratic frame of mind of the magistrates: the more affluent members of society were held to be the better elements, those appointed by God to positions of authority, and rewarded by material success. Therefore, they had to behave in a more exemplary way than the poor people they were supposed to influence into righteousness.

The misdemeanors liable to fines were gambling, drunkenness and violations of the regulations on liquor aiming at preventing drunkenness, smoking in public in Plymouth, verbal abuse, lying, assault and battery. For many offenses or crimes like fornication, punishment included multiple penalties, such as whipping, supplemented by a fine and a humiliation of some kind. For all these, the laws were followed, and the recourse to fines was so widespread that it generated considerable revenue and amounted to about half the total punishments over the period.[68]

d) Humiliating Punishments.

The last category of chastisement in New England was humiliation. We have seen that it existed in England, and that it was the typical penalty inflicted by church courts for offenses like drunkenness, sexual misconduct and other misdemeanors that entered into their jurisdiction. Humiliation in England usually took the form of public penance, sometimes in a white sheet for the more serious offenses.[69] It could be excommunication as well, and disenfranchisement - the former implied the latter, but the contrary was not true. Though the New England magistrates refused to import church courts as a distinct institution, and incorporated their jurisdictions into those of the General Courts and later County Courts, they still imported the traditional penalty that was associated with the church courts. They kept the white sheet in some occasions and resorted to all kinds of humiliations, such as standing up on the marketplace or on the gallows with a badge describing the fault: a capital A or AD for adultery, B for burglar, T for thief, D for drunkard.[70] They also kept excommunication, but it did no longer had political consequences. Some people had to stand on the gallows with a rope round their necks. Humiliation could mean exclusion from church membership and freemanship, losing one's title of gentleman or one's right to own land. Badges of shame usually were an additional penalty, after whipping for instance.[71] By extension we may consider all the public punishments such as whippings or sitting in the stocks as humiliations. Their aim, in a very deferential society based on reputation and social standing, was not only to humiliate the wrongdoer, but also to warn and frighten the public. A clean name was necessary for business relations and to find a wife, so the prospect of being humiliated in front of the whole community was deterrent for most people, but there were still some who could not resist the temptation or who ran the risk, hoping not to be discovered, and the records show that no punishment was entirely deterrent. At least, by sentencing capital crimes by corporal punishments, the culprits were given a chance to mend their ways. Similarly, excommunication, which concerned five per cent of the population in England, was said to be "more medicinal than retributive" and therefore meant to be a lesson toward better behavior.[72] It is also noteworthy that the upper classes were not only not whipped, but also more generally not humiliated and fined instead. This was meant to keep order and not to compromise respectability.[73]

In seventeenth-century New England, secular and moral crimes or offenses were dealt with by a fairly monolithic system of supposedly secular justice represented by the General Courts and other inferior courts. The legal codifications written throughout the period herein studied reflect a desire to abide by the Laws of God available in the Pentateuch, but also a tendency to reproduce features of the English system the migrants had most probably experienced during their lives before departure, be it as judges, jurors, witnesses, culprits, or spectators of humiliation, corporal punishments or even executions.[74] This tendency becomes even clearer with a study of the types of penalties used on both sides of the Atlantic. We can realize that in spite of a few realignments due to the inclusion of ecclesiastical courts into the officially secular system, the penalties used were strikingly similar, and the actual punishment of most crimes was fairly comparable, or at least not so innovative on the part of the New English judges. Therefore, in the light of this study, we may distinguish between a theoretical attempt to somewhat forsake the English system in order to establish commonwealths with divine rules and laws - Bible commonwealths, except in Rhode Island of course - and an actual drift from that theocratic ideal of the New Jerusalem to a rather faithful replica of, if not the English judicial systems, English patterns of justice. This process of replication must be seen in the light of the different conditions of life that the settlers had to take into account, a reason they invoked to justify innovations and the passing of laws apparently contrary to the laws of England. In general, the emigrants were still fundamentally English, perhaps more than has been hitherto assumed, though their Puritanism tended to make them less representative of English society, less typical than if they had been moderate Anglicans. Even in spite of that feature, they transferred and recreated social patterns of England, such as a deferential and highly stratified society, even though the settlers were socially more homogenous than English society as a whole since the poorer and the wealthier alike remained back there. Though the motivations and the objectives were different on both sides of the Atlantic, the migration can be seen as a fairly conservative movement, but not entirely so. We must not see the New England Puritans through the stereotype of stern and merciless bigots, and the English as a people tolerating and condoning the most sinful behaviors: the church courts could be severe, especially under the impetus of the Puritans, and the sheer size of church courts records demonstrates that sins were not left unpunished in Old England. The New England magistrates learned that excessive harshness had not the best deterrent effect, which would explain why the death penalty was so very scarcely applied when it should technically have been. Another interesting question raised by this departure from the original goal of establishing Scripture verbatim as the law of the land as John Winthrop preached, is whether this made the New Englanders covenant-breakers. "We are entered into a Covenant", Winthrop said,[75] and every single article that God had given must be followed. Beyond the above-mentioned departures we may wonder why they did not follow the abundant dietary legislation that can be found in the Pentateuch. Did they realize at the time that their clemency, the charity preached by Winthrop, the humanity that made them transgress God's law to give a second chance to the offender, or to preserve order by not punishing a man as he should be on account of social rank, that all those, though justifiable by the ideal of Christian charity, were at odds with the Biblical literalism also preached by Winthrop in the parallel with Saul? That this incoherence can be found in the Modell of Christian Charity, one of the most seminal texts of the New English movement, reveals how the Puritan effort toward the New Jerusalem was doomed from the start. However, this does not automatically mean that the seventeenth-century New England colonies did not contain theocratic features.

4. Church and State Relations: Civil Justice and Religious Matters.

The preceding reasoning would be a most erroneous oversimplification without a study of the relations between church and state as observed in a short examination of the regulation of religious daily life and the treatment of religious dissent by the civil state and justice. The church in New England was supported by compulsory contributions from both church members and non-church members, and therefore by all the inhabitants of the colonies, as is exemplified by laws passed in 1638 in Massachusetts,[76] and 1644 in Connecticut ,[77] but such had been the case for centuries in England,[78] and in all Western Europe as well.

a)  Church attendance & Sabbath Breach.

Hand in hand with church maintenance was church attendance, which in Massachusetts was made compulsory in the same law as church support.[79] The same kind of law was passed in 1651 in Plymouth[80] and non attendance was likewise liable to a fine in Connecticut.[81] In Elizabethan England, absence from church was fined one shilling each time, and a much stiffer twenty pounds a month under Charles I.[82] Enforcing Church attendance was intended to make good Christians of the people by teaching them the so-called true religion, and good Christians were supposed to be good citizens, and the unity and security of the state would thereby be protected from within.[83] In New England, court records show that fines were not systematically demanded, and that alternative penalties such as admonitions were not unusual. Systematic fines would probably have discouraged absence from church more efficiently, since statistics for Salem show that seventy-two percent of the women convicted between 1636 and 1683 had been sentenced for "absence from meeting", thus making the offense the most common among women, and the third among men, behind drunkenness and defamation.[84] Prolonged absences were also not unknown since a law provided for regular absentees to be fined forty shillings - two pounds - a month.[85]

Equally important to Puritans as church attendance was keeping the Sabbath "holy" as the fourth Commandment demanded.[86] To keep the Sabbath holy, men had to do as God had done on the seventh day: rest and not do any work. The Blue Laws of New Haven went as far as banning the crossing of rivers, traveling, cooking, making beds and even sweeping houses, cutting one's hair, shaving and kissing one's children. None of these trespasses are mentioned in the Bible, but the other colonies remained within more predictable limits. Travel on Sunday was banned if "unnecessary" in 1653 in Massachusetts, and 1658 in Plymouth, but not traveling out of town on Saturday night. The subsequent "Saturday night exodus" caused Saturday-night traveling to be banned as well, an unrealistic law that was not enforceable and accordingly not enforced.[87] Plymouth made the profanation of the Sabbath liable to a ten-shilling fine in 1650,[88] while "profaning the Sabbath provocatively" was made capital in 1671 in Plymouth and in 1656 in New Haven.[89] Throughout the colonies, Sabbath breach was not uniformly punished. Samples do not show any pattern, and fines, whippings, stocks and admonitions were all used in comparable proportions.[90] It is noteworthy that the Sabbath was so deeply rooted in the mentalities of the time that a breach was fined three shillings each time in early Virginia.[91]

Moreover it was not only working on Sundays that was illegal: crimes committed on the Sabbath were always more severely punished than crimes committed on working days. Burglars were branded on the first offense and branded again and whipped on the second offense, but if the crime had been committed on a Sunday, they would have one ear cut off on the first offense and the other on the second on top of the usual punishment.[92] The same measure was taken in Connecticut,[93] while Plymouth and New Haven replaced ear-cropping by another whipping.[94] Therefore, if Sabbath breaches, church absence and support were religious issues regulated by civil justice, since ecclesiastical justice was not supposed to exist in New England, it is nonetheless true that the situation was fairly similar in Old England and Virginia. What was important in England was that the laws concerned applied to the whole population in the name of uniformity, and it was this struggle for uniformity that made religious dissent unacceptable by the established civil power.

b) Religious Dissent and Uniformity.

Seventeenth-century Europeans considered religious dissent as a threat to the security of the state, and therefore uniformity was synonymous with unity and peace. The whole history of the Reformation in England shows the struggle, on both the Catholic and on the Protestant sides, for uniformity. Dissenters were commonly persecuted as traitors and the only alternative to the gallows or the stake was exile, as the Puritans knew too well. From Henry VIII to Archbishop Laud a whole series of persecutions had been going on. Though themselves persecuted against and more or less compelled to exile,[95] the New Englanders had not crossed the Atlantic Ocean to establish religious toleration,[96] and ironically, they would persecute in their turn whoever disagreed with their established doctrines, as can be seen in the examples of Roger Williams, Anne Hutchinson, and the Quakers. As in England, there was an established church in New England: the Congregational Church - especially after its orthodoxy was defined at the Cambridge Synod of 1648.[97] Yet in those fragile colonies much more than in Old England, unity was necessary for survival, the alternative being factionalism and fragmentation, and by extension anarchy and chaos. Consequently, religious dissent was put on the same level as political opposition, and the magistrates had firmly decided that there would be no factions in New England.

The first victim of the struggle for uniformity was Roger Williams. It is unnecessary to tell his story once again, for almost every book on the history of New England has done so already.[98] Much more than biographical anecdotes, we must look at how Williams' doctrines challenged the authority of the magistrates, and how they put the civil state in danger. His first fault was to be a separatist. He believed that since the Church of England still allowed unregenerate people to communion, it was not a true church, and consequently, since the churches of Massachusetts refused to separate from the Church of England, they were no true churches themselves, though membership - and thus communion - was restricted to the Saints. The problem of separation was diplomatically explosive: if Massachusetts openly rejected the Anglican Church, then its supreme head, King Charles I, could confiscate the Charter and put the experiment to an end, thus canceling the Special Commission. Concerning the Charter, Williams publicly declared that it did not give the settlers a right to occupy the land, because the King had no right to grant land that did not belong to him to his subjects. He also wanted the King to rewrite the Charter, lest the sin of living in Massachusetts "could not be expiated except by dissolving the colony and returning all the settlers to England."[99] As it threatened the very existence of the Puritans' experiment in America, this doctrine could not be welcome by the magistrates. The last thing they wanted to do was to go back to England and her corruptions. This would be the absolute contrary of the Special Commission. Moreover, Williams' last belief also threatened the foundations of Massachusetts society since he "expressed the dangerous opinion that the magistrates had no civil authority in any religious matter, that they could not even require people to keep the Sabbath."[100] When the clergy in Salem asked the magistrates to remove him from the ministry of the town, he declared the church impure because of their appeal to civil authority, and consistently, when the General Court ordered him to leave, he refused. He finally escaped because of a threat to send him back to England to be tried by Archbishop Laud.[101] Not only did he threaten the fragile base of early Massachusetts society, but he was also supported by the people of Salem, and if the magistrates had let the storm brew, they would have had to reckon with a potential faction, and the danger was all the greater since Williams had urged the people of Salem to separate from Massachusetts. If they had tolerated this, the magistrates would have set a precedent of fragmentation and disunity and the history of the colony would have been quite different and probably much shorter.

The doctrines supported by Anne Hutchinson had fewer political, and rather sociological and theological implications. For these religious beliefs she was also tried by civil justice given the absence of an ecclesiastical arm to solve religious problems. However the factionalism she caused was much stronger and widespread than in the Williams case. She lived in Boston, and her supporters, "the Boston faction", were "a growing majority of the Boston church, which included the largest single concentration of freemen in the colony."[102] Hutchinson's basic arguments had nothing to do with politics - she denounced most ministers as being under a covenant of works and not of faith, except John Cotton and John Wheelwright, and their inability to teach the Gospel. However, the importance of these issues was such that it was at the origin of political parties and the established magistrates, defending their own standards of orthodoxy, could then be overthrown at any coming election.[103] They would not let that happen. And Anne Hutchinson had one personal fault: she was a woman, and it was commonly admitted at the time that women's minds were not strong enough to deal with theological matters. Therefore, the governing class, "feeling their authority challenged, did what governing classes have always done under such circumstances. They struck back, and hard."[104] Hutchinson was banished because she lost her self-control at her trial and claimed that God talked to her directly. Wheelwright was convicted of sedition and also banished, and the remaining members of the faction were disarmed.[105]

For the second time in two years, the established elite that ruled over Massachusetts had managed to preserve unity and avoid factionalism and secession. However, these practices reveal how intertwined church and state were, since the state, through the arm of secular justice, had to protect itself from religious dissenters. Church and state were thus hard to differentiate and the struggle for absolute uniformity reveals the totalitarian character not only of Massachusetts and New England, but of all contemporary societies in which religious plurality was not tolerated.

The last example of persecution in New England was that against Quakers. Quakers did not challenge the established political authority, nor were they creating any factions as powerful as the Antinomians. They just challenged the religious orthodoxy and uniformity and consequently were not to be tolerated. We shall not discuss all the measures taken against them and those who helped them. We shall only point out that they were usually whipped severely, banished, had their ears cut off, their tongues drilled with hot iron, and were eventually executed if they dared come back to defy the authorities, until Charles II in 1661 explicitly prevented Massachusetts to kill Quakers - and rather to send them back to England, so that they be tried there.[106]

Therefore, religious dissent was still punished on both sides of the Atlantic, but in New England, it was by secular justice directly and not by ecclesiastical courts on behalf of the state. This final study of religious matters handled by civil courts in Massachusetts completes the whole canvas woven in this chapter, tending to prove that New England followed two models traditionally seen as opposed in direction: the English model and the Bible. The magistrates and law-makers of the Northern colonies reproduced patterns and customs they had known before migrating to America. On this model, which went as far as importing features such as a deferential and hierarchical society, they grafted Scriptural elements to conform to the ideal of the Special Commission. However, on the whole, we have seen that most of what seems typically Puritan in their judicial and legal system was not at odds with the practice in England, which made the New England way deceptively innovative and quite fundamentally conservative in terms of transfer of legal and judicial culture. The name New England was therefore perfectly appropriate, the newness being in the partial influence of the Bible on the lives and laws of the English subjects who were trying to build a civilized offshoot of their mother country in the wilderness.

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