by Peter Irons
The colonists also jealously protected their right to trial by jury, a practice often ignored or dismissed in England, where summary decisions by justices of the peace displaced a right first stated in the Magna Carta. Not all colonial defendants took advantage of this right, preferring (often with good reason) to place their fate in the hands of judges, who were usually educated and relatively impartial, thus avoiding the verdict of a jury of neighbors who knew, through direct observation or gossip, facts in the case that had not come out during trial. In addition, jurors could be influenced by their knowledge of the defendant’s other (and usually unpunished) personal flaws and foibles.
On the other side of the ledger, local jurors could protect defendants who were clearly guilty from penalties that many felt were excessive, or from laws that jurors considered arbitrary and unfair. The practice of “jury nullification” of laws, against which judges and prosecutors have railed for centuries, took root in the colonies as a protest against unfair prosecutions by English officials. The most famous instance of nullification took place in 1735, when jurors in New York found John Peter Zenger not guilty of seditious libel. An outspoken newspaper publisher, Zenger had printed articles that accused colonial governor William Cosby of trampling on the legal rights of New York’s residents. Zenger’s lawyer, Andrew Hamilton, appealed to the jurors to disregard the direct instructions of Judge James Delaney (a political ally of Governor Cosby) that the “truth” of the published accusations was no defense under English law. The jurors heeded Hamilton’s passionate argument and promptly acquitted Zenger, a verdict that not only set a precedent for later American law but also encouraged other appeals for jury nullification in cases of lesser import. Defending a client in a debt collection case in 1771, John Adams told jurors that if they disagreed with a judge’s instructions on the law, each juror with “any feeling or conscience” should consider it “not only his right but his duty in that case to find the verdict according to his own best understanding, judgment and conscience, tho in direct opposition to the direction of the court.”
Even though the colonists took pains to provide fair and impartial legal procedures for those accused of criminal behavior, the substance of their laws reflected the stern morality of their Puritan faith, tempered by concern for the rights of “freemen” to be treated equally. The settlers of Plymouth Colony enacted their first legal code in 1636, and were followed by their neighbors to the north in the Massachusetts Bay Colony, who adopted a “Body of Liberties” in 1641 that added protections for “freeman” to the Plymouth code. In many respects, these early legal codes foreshadowed the protections against arbitrary governmental power that were enshrined in the Constitution through adoption of the Bill of Rights in 1791, a century and a half later. The Body of Liberties spoke with the spirit, and even much of the language, of the Due Process Clause of the Fifth Amendment and of the Equal Protection Clause of the Fourteenth Amendment, which was not added to the Constitution until the nation had suffered a bloody Civil War.
Governor John Winthrop of Massachusetts Bay Colony delegated his friend Nathanial Ward to draft the Body of Liberties. Ward brought to this task ten years of experience as a lawyer in the common-law courts of England, but he later entered the ministry and served the Plymouth Bay town of Ipswich as a testy, outspoken Puritan pastor. He denounced from his pulpit and in pamphlets all dissenters from Puritan orthodoxy, warning them “to keep away from us; and such as will come, to be gone; the sooner the better.” The document he drafted, and the colonists adopted to govern themselves, reflected the tension between Ward’s secular and sectarian roles. The Body of Liberties first proclaimed the colonists’ intention to provide “such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion” and to guarantee that these rights will be “impartially and inviolably enjoyed and observed throughout our jurisdiction for ever.” In words that were later echoed in the Bill of Rights, the Body of Liberties pledged: “No man’s life shall be taken away, no man’s honor or good name shall be stained, no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punishes, no man’s goods or estate shall be taken away from him, nor in any way indamaged under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same. . . .” The colonists also promised: “Every person within this jurisdiction, whether inhabitant or foreigner shall enjoy the same justice and law, that is general for the plantation, which we constitute and execute one towards another without partiality or delay.”
It would be hard to find a comparable legal code of that time, or even today in many parts of the world, that established in such clear terms the principles of fair and equal treatment that the Supreme Court only began to enforce for all Americans in the latter half of the twentieth century. The Body of Liberties even provided the protections now found in the Double jeopardy Clause of the Fifth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment. The colonists stated: “No man shall be twice sentenced by civil justice for one and the same crime, offence, or trespass,” and “For bodily punishments we allow amongst us none that are inhumane, barbarous or cruel.”
However, in drafting those parts of the criminal code that set out “Capitall Crimes” and punishments, Nathaniel Ward abandoned the noble sentiments and legal protections of the English law and turned for guidance to the stern morality and severe penalties of the Mosaic Code in the Old Testament. In this respect, the Puritans of New England were heeding the admonition of John Calvin, the sixteenth-century Swiss preacher and theologian to whose writings they looked for guidance. Calvin wrote in 1559: “God hath put the sword into the hands of magistrates to suppress crimes against . . . the law of God.” The Puritans feared the God of vengeance more than they sought the warmth of the God of forgiveness. Ward heeded the admonition of Governor Winthrop to base the laws on “the fundamentals which God gave to the Commonwealth of Israel” in the biblical commands to Moses. Stating his purpose as punishing “anything that can be proved to be morally sinful by the word of God,” Ward took pains to note in the margin of each provision of the criminal code he drafted the book, chapter, and verse in the Bible that gave divine sanction to the crime and punishment in the Puritan code.
Ward began his listing of capital crimes not with murder but with the most serious affront to Puritan orthodoxy, that of idolatry: “If any man after legal conviction shall have or worship any other god, but the lord god, he shall be put to death.” The biblical citations that Ward provided for this provision included the verses in Chapter 17 of Deuteronomy in which Moses told the Israelites that any person who has “served other gods and worshipped them” shall be brought before the people “and you shall stone them to death.” In a break with biblical commands, the Puritans recoiled from this form of execution and substituted hanging from a public gallows.
Second on the list of capital crimes was witchcraft, a law applied with a vengeance in the Puritan town of Salem in 1692. Nathaniel Ward had warned in his preaching and pamphlets against “Familists,” by which he meant those who communed in their worship not with the “Lord God” of the Bible but with “familiar spirits” who were considered to be the Devil’s agents on earth. The law he drafted stated: “If any man or woman be a witch (that is, hath or consulteth with a familiar spirit), they shall be put to death.” There was more than a whiff of misogyny in Ward’s attacks on witchcraft; all but one of those accused in Salem and other towns of consulting with “familiar spirits” were women. The records in the witchcraft cases suggest that their crimes had less to do with biblical injunctions against “sorcery” or “calling up the dead” than with challenges to male control of the Puritan faith and state, which subjugated women to men in churches and government. Whether or not he foresaw its consequences, the witchcraft law that Ward drafted led to the executions of nineteen women, who were all hanged, and one man, G
iles Corey who was pressed to death with heavy stones.
The Puritan obsession with “familiar spirits” and witchcraft did not, of course, set the New England colonies apart from England and continental Europe in the sixteenth and seventeenth centuries. Periodic frenzies of “witch trials” resulted in the executions, often by burning at the stake, of hundreds—perhaps thousands—of suspected and actual “witches.” There is evidence that some women in Salem did practice various kinds of “witchcraft” by performing occult rituals and casting spells. But most of those accused were girls and young women who were simply the victims of religious paranoia and fanaticism. The fact that witchcraft was made a capital crime in the Body of Liberties reflected the Puritan zeal to extirpate every dissident and unorthodox religious practice, in particular those led by women who challenged the male control of church and state.
The Body of Liberties also prescribed capital punishment for sexual practices that were condemned in the Mosaic Code. Nathaniel Ward included bestiality, homosexual sodomy, and adultery as crimes punishable by death. Again, the marginal citations to Old Testament books provided biblical sanction. Executions for these sexual crimes were infrequent, but a few offenders did suffer the animal was also killed, as both the Bible and the Puritan law required. The records of the colony show that although prosecutions for fornication and adultery were common, penalties were generally light and only two married persons were executed for this crime. Today, many Americans are shocked and sickened by news accounts of public executions in countries such as Afghanistan or Saudia Arabia, often carried out by stoning or beheading, for crimes such as adultery and homosexual sodomy. We tend to forget that those Islamic countries that have enacted the religious law off the Koran into their criminal codes are separated only by time and distance from the religious moralists of the New England colonies.
Looking at the Body of Liberties as a whole, and the records of the colonial courts, it is clear that the Puritans did not intend or attempt to create a literal “New Jerusalem” in New England. Incorporating much of the Mosaic Code into law served more to impress upon the residents of this wilderness outpost their need to “purify” their lives than to exact the biblical sanctions in every case. Holding in reserve the ultimate penalty of death, and its occasional use as a warning to others, served the function of social control in a society based on outward conformity but with fairly high levels of “morally sinful” behavior. The work of modern historians shows that many colonists, even those who sat through endless Puritan sermons, were just as likely to violate the social and sexual taboos of their “Bible-based” society as are contemporary Americans, despite the extreme penalties they faced for their transgressions.
The criminal laws and penalties of the New England colonies, at least in the statute books, were more harsh than those of other colonies. But they were decidedly less severe than those of England, where in the seventeenth century more than a hundred crimes were punishable by death. In this area of law, factors such as the need for labor, the absence of rigid social roles based on feudal distinctions between “serfs” and “lords,” and the granting of “freeman” status to most males who owned some property, produced in the colonies a greater emphasis on community norms of behavior and shared religious beliefs. The civil laws and court procedures of the colonies also reflected a more fluid and egalitarian social structure than that of England, where feudal laws of inheritance, land tenure, and commercial transactions had created and maintained an archaic legal system more suited for the Middle Ages than for a time of exploration, expansion, and emigration. The American colonies, in contrast to the mother country to whose monarchs the colonists swore allegiance, believed in the promise of the Body of Liberties of Massachusetts Bay that “every person shall enjoy the same justice and law.”
The promise of equal justice, however, extended only to the “freemen” of the colonies. This favored group, in fact, made up only a small minority of the colonial population. The ranks of freemen were generally limited to white males who owned some property and who belonged to the dominant religious denomination of the colony. In short, the freemen were the precursors of the WASP (or White Anglo-Saxon Protestant) elite that owned and operated American business, government, and culture for more than three centuries, and that still maintains a disproportionate share of power in these areas. In the process of taking power for themselves, the freeman of colonial America consciously employed the legal system to keep the members of other groups in subordinate roles. Four groups in particular were excluded from the ranks of “every person” to whom the colonists gave their promise of equal justice. Those who received less justice—in some cases, none at all—included religious dissenters, women, African slaves, and the Indians who occupied the land before the colonists arrived.
There is a powerful irony in the disparity between the myth of colonial America as a haven for religious dissenters from the orthodoxy of the Church of England and the reality of intolerance toward those who challenged the new orthodoxy of the colonists. It was an awareness of this irony, and a revulsion at religious intolerance, that prompted the men who framed the Bill of Rights to provide in the First Amendment that Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” During the century and a half that separated the Body of Liberties of the Massachusetts Bay Colony from the adoption of the Bill of Rights in 1791, religious conflict affected virtually every village and town in every colony.
Two episodes in Massachusetts illustrate the divisive effects of religious intolerance. The first was the expulsion of Roger Williams from the colony in 1636, which led to the establishment of the new colony of Rhode Island. Williams had come to Boston in 1631 as a Puritan pastor; he soon became minister of the church in Salem. During his formative years in England, Williams studied under the great jurist Edward Coke, who defended both political and religious freedom within the narrow confines of laws against “seditious libel.” Williams became a controversial figure in Salem, from whose pulpit he denounced the notion that civil authorities could enforce religious edicts. These views so offended his parishioners and the political leaders of the colony that Williams left Salem after a few months for the relative tolerance of the church in Plymouth, where he continued his attacks on the Puritan theocracy. “Let any man show me a commission given by the Son of God to civil powers in these spiritual affairs of His Christian kingdom and worship,” Williams demanded in a pamphlet that enraged Puritan leaders. For this heresy, the General Court of Massachusetts expelled Williams from their midst.
The second religious dissident was poles apart from Roger Williams in theology, but equally a threat to Puritan orthodoxy. Williams was, in some ways, more of a Puritan than those who condemned and expelled him. Me argued against admitting to worship those “unregenerant” Puritans who attended Church of England services on visits to England. Anne Hutchinson, on the other hand, resisted Puritan worship altogether. She held services in her home and preached to those who attended her “study” sessions—mostly women—the heretical doctrines that salvation comes through grace and not through work, and that the Holy Spirit can dwell within every person through individual revelation. Despite her social prominence—her husband was a close friend and ally of Governor John Winthrop—Anne Hutchinson so directly challenged Puritan orthodoxy that she found herself facing trial before the General Court in 1637, with Governor Winthrop as the chief prosecutor and interrogator.
The transcript of this historic trial offers an insight into the conflict between individual conscience and state power that continues to divide Americans. Far more knowledgeable than Winthrop on biblical scripture, Hutchinson continually bested him in debates over fine points of theology. She turned the tables on Winthrop, questioning him so relentlessly that he finally admitted that Hutchinson had biblical support for the main charge against her, that of preaching a doctrine of personal revelation of God’s word. “How did Abraham know that it wa
s God that bid him offer his son” for sacrifice? she demanded to know from Winthrop. “By an immediate voice,” he responded. Hutchinson pounced on the governor. “So to me by an immediate revelation,” she said of her views on salvation by grace. “By the voice of his own spirit to my soul.” Winthorp was so enraged at falling into Hutchinson’s trap that he quickly called a vote on the heresy charges and secured a conviction with only three dissents. The penalty was banishment from the colony. Anne Hutchinson and John Winthrop had one last exchange. “I desire to know wherefore I am banished,” she asked. The governor’s answer spoke volumes about colonial limits on the rule of law. “Say no more,” Winthrop replied; “the court knows wherefore and is satisfied.” Anne Hutchinson left the colony in 1637 and settled in Rhode Island, the tiny outpost of religious tolerance in New England.
The expulsions of Roger Williams and Anne Hutchinson took place early in the colonial era, and they exemplify the extremes of religious intolerance in the most intolerant colony. By the time of the Revolution, advocates of toleration spoke with louder voices and demanded the “disestablishment” of the churches that controlled most of the colonies. James Madison of Virginia, the primary author of the Bill of Rights, deserves the greatest credit for moving the country toward religious toleration of dissenters. In 1774, Madison wrote to a friend that the “diabolical, hell-conceived principle of persecution rages among some” in Virginia. “There are at this time in the adjacent county not less than five or six well-meaning men in close jail, for publishing their religious sentiments, which in the main are very orthodox. . . . I have squabbled and scolded, abused and ridiculed so long about it, that I am without common patience.”
