This is a rough draft of my upper division writting requirement for UConn Law School. If you have an interest in early New Haven, or colonial history in general, you may find it of interest.
Feedback to dcyale@att.net
When most people think of the original colonies, they think of the thirteen that banded together to proclaim their independence from England in the 1776. Thirteen original colonies, thirteen stripes on the flag. The thirteen colonies on the eastern seaboard which formed the original thirteen states grew out of other colonies, however. In the first half of the 1600's New Haven was a colony in it's own right, independent of Boston, or the Colony of Connecticut. Although it's independent political existence came to an end in 1665 when it was merged with Connecticut by the King, it has a rich early recorded history, which survives primarily in the written records of it's legal institutions. It's existence might have been all but forgotten today, but echos of it's existence survive.
Historical attention has also ignored the New Haven Colony to an extent. The Plymouth Colony was the first in New England, Boston and the Bay Colony was the seat of much of the Revolution and Rhode Island was the home of unusual religious tolerance under Roger Sherman. It had no incidents to capture the popular imagination like the witchcraft hysteria of Salem. There is some material from the second half of the 1800's, but documentation and source identification is scarce, and in some cases where the information came form is impossible to determine and the level of scholarship is undeterminable. Other material is most helpful, however, and in collecting it about one hundred years ago those historians have ensured the continued existence of that knowledge.
In this paper we will take a look at the Puritan under pinnings of the original New Haven, and how it came to be settled at all. Although not a paper on Puritanism itself, a brief Introduction will be made to John Davenport, the Puritan Divine, and Theophilus Eaton, wealth London businessman and later governor and chief judge of New Haven, who were the two pillars on which New Haven was founded. The political structure of the colony will provide an idea of the founders ideas, and a look at some criminal trials will provide a look at the ideals these Puritan forerunners of the Connecticut Yankee held, and provide us an opportunity to see echoes of our present in our past.(1)
As a matter of background it is helpful to know where the information about the Colony of New Haven is contained. The Colony started keeping records from the start in a folio of about 250 pages measuring seventeen by eleven inches. The records from the Jurisdiction of New Haven are lost from April 1644 to May 1653, but the remainder were transcribed by order of the Connecticut General Assembly under the direction of Charles Hoadly, who was the State Librarian, and published the first volume in 1857.(2) Hoadly says that although some punctuation was altered, the rest of the work is a true copy of the original.
The second volume has a few sections omitted, which the editor thought were unsuitable to be published. It seems that they dealt with detailed evidence in prosecutions for homosexuality. The second volume covers May, 1653 to the time New Haven united with Connecticut.(3) It was also compiled by Hoadly and was published in 1858.
The third and fourth primary source used are the New Haven Colony Historical
Society editions of the Ancient Town Records of the Town of New Haven published in
1917.(4) Where the first two volumes mentioned deal with the Colony records, which
encompassed several towns, these two deal with the town of New Haven specifically.
The Colony Records deal with a lot of the more serious crimes, where often the town
records deal with subjects like the never ending problem of defective fences which allow
the pigs to get into the growing crops.(5) Any other original sources will be explained as
we refer to them.
What is Puritanism?
Attempting to describe Puritanism could fill several books in it's own right.(6) A religious movement that grew out of the efforts of England to throw off Catholicism, then return it, and then throw it off again in the 1500's and replace it with the Church of England. In those times the crown saw control of the church as a political matter, and Elizabeth desired to take a firm hand over it.(7) James I was more liberal, and the Puritans of England were tolerated to an extent, but with the ascension of Charles I in 1625, Puritanism was once again an enemy of the crown.(8)
At the core of Puritanism was the idea that Adam had the choice of salvation or damnation. Had he obeyed God in the garden he would have earned salvation. This was labeled the Convent of Works. After Adam's sin man(9) was corrupt and unworthy of heaven and nothing a man did could change this. God chose to exclude some from irrevocable damnation, an arbitrary choice and one that the individual had no control over, through the sacrifice of Christ on the cross. This was the Covenant of Grace. Exactly who those chosen for salvation were was predestined. An individual had no way in life to include himself among the chosen, it was totally God's choice. Salvation was not automatic for a chosen person though. He had to become aware of his status, and accept God's grace, being born anew into the his life, then was expected to grow through a stage of doubt and self questioning, to eventually emerge as one who accepted his new status as a matter of faith.
After passing the middle step, where the individual chose to accept God's grace and was reborn, he was expected to live his life in a way morally consistent with his new life. In dealing with his neighbors, his family, and his government he was expected to look for guidance to the Bible, the only true source of instruction. Religious writings and sermons were tools to help him discover the meaning within the scriptures. What he was not was "puritanical" in the modern sense. He still appreciated and enjoyed the life of the day. Alcohol was allowed, lotteries and other amusements were pursued, relations between husband and wife were for pleasure as well as procreation, and dress was appropriate for their social class. Moderation was the rule, however. There definitely could be too much of a good thing, and a puritan was expected to know where the line lay. Nor did a puritan condemn his neighbor for unsaintly behavior. As a soldier of God a Puritan was expected to reach out to his neighbor, because is neighbor might be one of the elect who had not yet heard God's call. The Puritan had a duty to witness to his neighbors and help them draw close to God in case they too were one of the elect.
These concepts of covenant ran through other aspects of Puritan life. Puritans felt there was a national covenant, believing that they had covenanted with God to be his
representatives on earth, demonstrating a standard of truth and good conduct and to be evangelical in return for prosperity, peace and happiness.(10) Many of the characteristics associated with puritans, Stern Discipline, Altruism, public spiritedness, and religious zeal trace their roots to this covenant.(11)
This covenant co-existed with the political covenant, between God, civil rulers, and the people. The civil ruler was to lead his people through good and Godly example, to look to the Lord for guidance and deal out justice according to God's word and example.(12) The people were to obey the civil authority and submit to his rule.(13)
Another important influence that assisted the growth of the Puritans, was the corruption of the English Church. Ministers who were illiterate and often unavailable for religious tasks, unimaginative sermons, and officials who put personal advancement before religious goals were entirely too common. The Puritan movement was fueled at least in part by these deficiencies, and the Puritans who came to New England had a strong motivation to preform their secular tasks with diligence, as they were often the same people who looked at official malfeasance with disdain.
Why Puritans migrated to New England differed between individuals. Religious persecution was surely a factor. Puritan ministers were put into prison routinely because of their disagreement with the state church, and Davenport had fled to Holland to avoid possible imprisonment himself.(14) One puritan lawyer was fined LL5000, stood twice in the pillory. lost his ears and was imprisoned for life for publishing a book against plays, which was seen as critical of the royal court, by the Star Chamber.(15) In coming to New England, Puritans hoped to find the freedom to form a community that would serve as an example to England of what should be, a beacon on a hill to serve as a light to the world to the true path.
Economic opportunity was also an important attraction for many settlers. Many groups coming to New England were joint stock companies, which allowed investors to buy stock in the company, and take out profits in proportion to his investment.(16) This explains why the early New Haven Colony recorded the value of various resident's investments in the colony with great precision.(17) When land was divided it was proportional in some extent to the individual's holdings in the colony. There was hope that the investment in the colony would lead to financial gain and explains why various ideas to turn a profit were discussed and funded by the colony as opposed to private individuals. When Eaton was sitting as a judge, he was not only looking after the health of his community, but also of his investment.
What ever the reason, of the 21,000 English who came to New England in the
1630's, the vast majority came as families. The cost of the trip prevented the poor from
traveling and there was no third class steerage on those ships. Some family brought
their servants, but otherwise single men were not encouraged to come to New England.
In fact most of the heads family were in middle age, it was not an enterprise of the
young. This was the person who ended up in New Haven in 1638.
The Legal Climate
In the 1630's law was intertwined between church and state. In England there
were 100's of capital offenses, being the norm for any felony.(18) The intention of these
travelers was to make a new society, based on their ideas of what a community should
be, and it is worth investigating these beginnings to see what effect they have had on
our country and what vestiges of these humble beginnings can be seen in our society
today.
John Davenport
Before we turn our attention to the laws of New Haven, we have to look at the two men who most influenced what it would be, separating the colony into matters of religious and secular jurisdiction. Reverend John Davenport was one half of this partnership.(19)
Baptized in 1597 in the Church of the Holy Trinity in Coventry, England (where Eaton's father vicar), and spent his childhood in that city. At age 16 he left for Oxford and attended for two years before his funds ran out. At age eighteen he was already pursuing his career as a minister, and some of the few of his preserved sermons come from this time period. The next year he went to London, and shortly thereafter took a lessor position at Saint Stephen's. It was during this time Davenport was in the area and around the people from which Puritanism took it's growing strength. In 1624 davenport was elected by the parishioners at Saint Stephen's to become vicar by almost unanimous vote. By this time he was labeled a Puritan by his enemies, although he protested to those who had the King's ear that he was not, and that his services followed the mandated forms. In 1627 he was again in the eye of suspicion and reprimanded in the Star Chamber for efforts to raise relief money for Protestants on the mainland, an effort that thwarted the Crown's purpose.
Davenport did not want of connections to people who would be influential. He formed a friendship with Lady Mary Vere, who was strongly Puritan and later would be in charge of the King's children during Long Parliament. He also was involved in the company that would settle Massachusetts, investing money and serving on the committee. During this time he attempted to conform to church edict in all non-essential matters of doctrine, but when Laud, a staunch Puritan enemy and long time enemy of davenport in particular, was appointed Archbishop of Canterbury, Davenport knew he had to leave London, and he made his way to Holland.
Although he began preaching in Holland, almost at once he became caught up in a dispute over the baptism of children. Davenport refused to baptize a child unless he was certain that his parents were members of the church.(20) This led to him ceasing his ministry in Holland. In light of this controversy, and attacks by powerful people both in Holland and in England, Davenport snuck back to England in 1636 or 1637, and sailed for New England with Eaton.
The first of the pillars of New Haven is in place. Davenport is a man strong in his convictions. Outspoken enough to earn powerful enemies in England, but willing to compromise on small things. He has made a living speaking to people about God, and some days in England before he fled 1400 people would attend his church. He also maintained some powerful friends in England, and in New England. He was looked to for answers of a religious nature, and was willing to risk everything to establish the church in the image he held for it. These are the traits that helped shape New Haven.
Theophilus Eaton
The other person who figures prominently in Early New Haven is Theophilus Eaton.(21) He was born in 1590, the eldest of nine children. He lived until January 7, 1658 when he died in New Haven. With the possible exception of davenport, no man influenced the history of New Haven more. Without Eaton New Haven would not exist as we know it.
His father was the vicar of the Church of the Holy Trinity in Coventry, England.(22) His parents wanted him to enter the ministry in the footsteps of his father, but Eaton wanted to go into business. While attending school he first met davenport, who was a few years younger, but the became friends. They must have found each others company easy, because it was a friendship that endured the years.
He followed his own path, and after an apprenticeship he entered service with the East-Land Company. This was a company that was granted a monopoly on the Baltic trade, as the East India Company was granted in India and the Hudson Bay Company in the north of America. He became a Deputy Governor there, comparable to serving on a board of directors today.
During his service with this company he was placed in the court of Christian IV of Denmark, and when he left the company following a shifting royal situation in England, he worked for Christian IV for some time, as evidence by a letter from Christian IV to James I regarding Eaton.(23) Back in England, eventually he went into business for himself.
He had married and had three children when his first wife died. In 1627 he married his second wife, Ann Llyodd Yale, a widow from the north of Wales near Chester, England, who had three children also. Together they had several more children.
A short time after this, Eaton moved to Saint Stephens Parish, Coleman Street, London, an area filled with well to do businessman. Eaton fit in perfectly. He had done business with two different Kings, he had served abroad for years, he was connected through his wife's family to several prominent people, he was the epitome of the successful merchant of his day.
Moving to Coleman Street put him back in touch with his childhood friend, Davenport. They already had common ground in their Puritan views on religion. Although not as visible as davenport, Eaton did involve himself in activities which could bring him unwanted official attention. He joined with Reverend John White in promoting a settlement north of Plymouth, Massachusetts. He played an active part in gaining the grant for the Massachusetts Company and was implicated when the Crown brought charges against the founders of that company. He was 1/16 owner of the Arabella, the ship that brought John Winthrop to Boston. Although encouraging and helping others migrate to New England, at first there was no indication that he planned on the trip, but by the second half of the 1630's he and Davenport were preparing for the trip themselves.
When we think of the pioneer movement in the American West, we think of simple farmers packing their family's into a covered wagon and heading out. Eaton was a totally different person. By today's standards he would be a millionaire. He was experienced in the workings of business and was experienced in the workings of the English legal system, as well as that on the continent. He was college educated and lived a wealthy life style. He emigrated when he was in his forties. When he arrived he built a house with 19 fireplaces, large enough that thirty people lived there at one time. He helped set out the original nine squares of New Haven with plenty of room for warehouses and shops, expansion that did not come. This is the man who came to a stretch of empty ground that would become New Haven.
Cotton Mather wrote about Eaton extensively in Magnalia Christi Americana,
calling him the pillar of the New Haven Colony.(24) After his death Davenport wrote "[i]n
the loss of our incomparable Governor and my faithful friend, under which we still bleed,
and, I feare, unto the death of our politique body..."(25) By that time half of the glue
needed to keep New Haven together was gone, and the forces pulling her apart were
strengthening.
The Founding
In 1636 Eaton and Davenport led their group of followers out of England into New England. Their first stop was Boston. Bay Colony leaders proposed a site for the group to settle inland from Boston. The location was not suitable from a business perspective, however. Located far from a river suitable for shipping, and well within Boston's economic sphere, opportunities would be limited. The group decided to look further.
They heard of a place called Quinipiac. There was a good harbor and the local Indians, who were weak as a tribe, were anxious to have Englishmen settle the area to assist them against their enemies who were significantly stronger. Finding the topography suitable, with level land for agriculture, fresh water in abundance, and a harbor for trade, the site seemed ideal. On ***,**, 1637 the main group of settlers arrived to join a few men who had spent the winter there living in dugouts.
This group had no charter from anyone, and basically decided on their own to start a new settlement. It seems strange for a group that espoused the proper relationships between authority and the governed to take it upon themselves to take such an action. Other groups had sought charters or other legal authority before making such a momentous decision, but New Haven was founded with no legal authority.
Davenport preached his first New Haven sermon under a *** tree on **,**, and set
a tome that would continue for many years. The most important force in a Puritan's life
was God, and God had a messenger in New Haven who would preach so as to
influence the moral direction of the colony. Davenport outlived the colony, seeing it
merge into Connecticut in his lifetime, and through the colony's entire life he would
shepherd it through tribulation and trial.
The Fundamental Agreement
Quinipiac started as a theocracy. There must have been some type of agreement under which the settlers came to the new world, but no proof of it's content survive.(26) On June 4, 1639 all the free planters (all men who had invested in the colony) met to discuss what form of government to establish for New Haven.(27) Davenport prayed that those assembled give careful thought to what they were discussing, not to be rash and give their votes to things they did not understand. The first concept that all agreed to was that the scripture hold forth a perfect rule for the direction and government of all men in all duties which they are to preform to God and men as well as in the government of families and commonwealths as in the matter of churches.(28) All present agreed to it.
Secondly they agreed, without dissension, to have a court of magistrates to make and repeal laws, divide inheritances, and all things of that nature, to be ordered by the rules that scripture puts forth. They called this a Plantation Covenant and those present agreed to be bound by it. The assembled planters then agreed to be bound to establish such civil order that would best secure the peace and purity of the ordinances(29) to themselves and their posterity.
The next question proposed to the group, was wether the voting franchise should be restricted to members of the church. After the group had agreed to it, one person objected in this matter, saying that he was not sure that this was a power the free planters should give up.(30) He agreed that civil leaders should be God fearing men, and that such men were most likely to be found in church, that he felt that the power of electing official should be returned to all free planters if things "were nott orderly carryed."
Davenport then told the group that he and the dissenter had spoken previously about his matter, and related to the group the substance of these discussions,(31) and although the vote was already taken, suggested the matter be weighed and voted on again. Again the matter passed. Some others gathered offered that they too had doubts about restricting the vote to church members prior to the meeting(32) but that they were now satisfied that this scheme was God's intent. It was further decided that all future free planters who wished to settle in New haven would have to agree to be bound by this agreement as the original settlers had by the "Free Man's Charge:"
Yow shall neither plott, practise nor consent to any evill or
hurt against this Jurisdiction, or any pte of it, or against the
civill gouerment here established. And if you shall know any
pson, or psons wch intend, plott, or conspire any thing wch
tends to prejudice of the same, yow shall timely discouer the
same to lawfull authority here established, and yow shall
assist and bee helpfull in all the affaires of the Jurisdiction,
and by all meanes promove the publique wellfare of the
same. According to yor place, ability, and opptunity, yow
shall give due honnor to the lawfull magistrats, and shall be
obedient and subjectto all the wholesome laws and orderes.
Already made, or wch shall be hereafter made, by lawfull
authority afforesaid. And that both in yor pson and estate:
and whenyow shall be duely called to give yor vote or
sufferage in any election, or touching any other matter, wch
concerneth this common wealth, yow shall give it as in yor
conscience yow shall judg may conduce to the best good of
same.(33)
Law in Early New Haven
The early New Haven legal records not only provide an accounting of the
business of the colony, they provide insight into the society and people who helped start
this country.(34)
Despite a popular belief that Puritans were tyrannical and oppressive, this is not born out in looking at the facts, at least in New Haven. It is easy to point to the Salem witchcraft executions as an example of Puritan over zealousness, but during this time there were over *** executions for witchcraft in England where King *** supported the hunt. Salem had numerous well known executions, Connecticut had eleven executions(35) and New Haven had none. New Haven's avoidance of this evil can in part be attributed to Eaton and Davenport's reluctance to fall into the public hysteria, coupled with the lack of jury trials giving power to the mob.(36) As late as 1692 during the Salem Witchcraft episode, it was Increase Mather and other Puritan ministers whose sermons against the methods of the officials in Salem halted the proceedings.(37) Mather in particular said "It were better that ten suspected witches should escape, than that one innocent person should be condemned."(38)
When Elizabeth Goodman came before the Court of Magistrates on October 17,
1655, there was evidence presented that she was engaged in witchcraft. A barrel of
beer, which she had drank from the previous night, before she apparently became
offended by her host, was found the next mourning to be warm to the touch, and
steamed when the bung was pulled.(39) Previously she had been accused of putting
some kind of spell on her neighbors chickens and cows and was under strong suspicion
of witchcraft, and had been previously imprisoned.(40) The court required a high standard
of proof however, after telling her that there was strong suspicion against her the record
goes on to say "wherefore the court declared vnto her that though the euidenc is not
sufficient as yet to take away her life, yet the suspitions are cleere and many..."(41) A jury
of citizens may have been satisfied with the many and clear suspicions(42)
The Codes of Law in New Haven
There was a movement throughout the English colonies for codification of the law, with a fear of the magistrates powers unless the penalties for violating the law were established by statute.(43) This movement to codification may have well started with the Puritans when still in England prior to settlement of the New World,(44) and not all Puritans agreed with it. Winthrop in the Bay Colony felt that only a few were capable of judging their fellow man, and that they should not be restricted by rules designed by those less fit.(45) Popular sentiment eventually won out, though, and the New Haven Colony collected the laws together in one volume that they had printed up in London.
The original code of New Haven was published in book format in 1656, and few copies still exist.(46) Prior to this new laws were copied into a record book after every court session, and read aloud once a year in a town meeting.(47) In June of 1656 the colony took possession of 500 copies of the code which were distributed to the towns.(48)
Although many people believe that the original settlers came to New England looking for religious freedom, they actually were looking for a place to have a religion just as hostile to other religions as England was, only to have it be their religion that was champion.(49) In furthering this the first section of the law continues the restriction on franchise to members of the church, although non-church members were guaranteed rights of inheritance and all other civil liberties.(50) One hundred and fifty years later this type of situation led to cries of "No taxation without representation" on the eve of the revolution, and even in 1657 this restriction led to many feelings of discontent. The outlying towns were particularly upset with this restriction, and they could be said to be in a state of perpetual revolt, and eventually a good part of the plantation of New Haven itself came to feel it was a restriction.(51)
Many aspects of religion were legislated and enforced by the courts. Fines were provided for not attending church. Heretics could be branded, banished, or otherwise severely punished.(52) There were penalties for disparaging the doctrine of the court,(53) and failing to pay a tax for maintenance of the church,(54)
As opposed to religious class, New Haven had various social classes and lack of
financial status was not a bar. William Peck, worth only LL12, was a freeman as much
as Eaton, and Peck was elected as Deacon of the church.(55) Class structure included
slaves, indentured servants, day-laborers, householders, admitted planters, and
freemen.(56)
Political Structure
The political structure of the New Haven Colony was set out as one colony (remembering that New Haven was not yet a part of Connecticut) consisting of several Plantations. A Plantation was "where there is a church duly gathered, and Freemen orderly admitted,"(57) namely New Haven, Milford, Guilford, Stamford, Southold, and Brainford. Sitting at the head of the political structure was the General Court, which consisted of the Governor, Deputy Governor, the Magistrates, and two Deputies from each plantation. As with many offices inhabitants were elected or appointed to, the code provided for fines for Magistrates and Deputies that were absent from proceedings without good cause.(58) This court had jurisdiction over almost all phases of human activity in the New Haven Colony.
The New Haven Code set the first priority for the court as the purity of Religion (Although they did not spell out exactly what flavor of religion it was protecting, I think it's fair to say they were envisioning New Haven Puritanism when they talked about religion), and the suppression of contrary views.(59) Second, to enforce God's laws saying "...the Supreme power of making Lawes, and of repealling them, belongs to God onely, and that by him this power is given to Jesus Christ as Mediator." The code goes on to grant the General Court power over smaller matters "not particularly determined in Scripture."(60) What the code considered lesser matters is rather surprising to us today, but it helps to see how important religion was to realize that the code included war, trade, and civil and criminal appeals from lower courts as of lessor importance.(61)
A second level court, the Court of Magistrates, was put in place to hear capital
cases and important civil trials, as well as appeals from lower courts.(62) The Plantation
Courts, residing on a third level, hear civil cases of less that twenty pound value, and
criminal cases with penalties not exceeding stocking or whipping and up to five pounds
fine.(63) This system of tiered courts of enumerated jurisdictions helped distribute the
workload. It also reduced the burden on the public, as traveling to New Haven from
somewhere like Southold (which was on Long Island) was a lengthy and expansive
proposition.
Church and State
One institution that was lacking was ecclesiastical courts. In England these courts had jurisdiction over probating wills, and matters of marriage and divorce.(64) The New England Puritan founders wanted a separation between the Church and State, two separate entities with different spheres of power, yet able to work hand in hand with each other.(65) The distinction is far from clear. however. The church and the state may have been "separate", but the civil government was organized by the church.(66) In the case of Baptists, who did not believe in infant baptism, they would often turn their backs or cover their ears when the ceremony was performed, and for this behavior could be charged in the courts, imprisoned, or even banished from the colony.(67) Even though it was what we today would consider a situation in the religious sphere, it could be handled by the civil courts. This is not always what happened in practice. Although the puritans were looking for religious freedom, it was freedom to restrict religion to their religion, not freedom for all to worship as they saw fit.(68)
In New Haven, when Governor Eaton's wife, Ann Lloyd Yale Eaton, displayed her disfavor with infant baptism by walking out of the meeting house, she was excommunicated by the membership of the church. She had been given a chance to repent, Davenport tailored sermons to teach on the practice, and elders from the church had come to speak with Ann and talk over her ideological differences with the practice. There was no rush to judgement. She was given time to consider her opinions, and was asked to apologize to the church regarding the matter, but she would not. Finally the case was put before the membership of the church, and as an entity she was excommunicated.
Although the code carried a clear criminal proscription and penalty for this offense, Ann Eaton was not subjected to it.(69) One can only speculate if her status as the governor's wife shielded her from the courts, or if it had been a person of lower means the crime would have been prosecuted. Regardless, she stayed his wife until his death, participated in the community, and the incident had no apparent implications between Davenport and Eaton in their deep personal friendship.
It is interesting to note that although respected and elected governor repeatedly until his death, Eaton had other problems with his family. It was his brother that questioned allowing only church members to vote and hold office when the fundamental orders were proposed early in New Haven's history,(70) and his stepson, David Yale, was detained in Boston to prevent him from returning to England to protest the actions of the New England puritan leaders to the King.(71) Before his eventual return Mr. Yale he had become quite a friend of the Church of England and did not return to New Haven to live, apparently preferring the more tolerant atmosphere of Boston.(72)
Other colonies were quite different from New England. Not all colonies were as
restrictive. By 1649 Maryland had a law forbidding the persecution on religious grounds
of anyone professing to believe in Jesus Christ.(73)
Law and Order
Today every election they speak about the people who do not vote. That wasn't a problem in early New Haven. Voting was not an option. It was mandatory, with provision for absentee and proxy voting because of poor transportation and spread out farms.(74) Other duties were also required. Military service was compulsory for all males sixteen to sixty, requiring them to train six days a year and to keep munitions, firearms, and other needed equipment and supplies in good order at all times.(75) Being late to training, or missing it, or not having one's weapons in good working order were common fair for the lower courts, almost as common a bad fences.
With these obligations came privilege. Protections were provided, namely that:
no mans honour, or good name, shall be stained, no mans person shall be imprisoned, banished, or otherwise punished, no man shall be deprived of his wife, or children, no mans goods, or estate shall be taken from him, under colour of Law, or Countanance of Authority, unlesse it be by virtue, or equity of some expresse Law of this Jurisdiction, established by the Generall Court, and sufficiently published, or for want of a Law in any particular case, by the word of God, either in the Court of Magistrates, or some Plantation Court, according to the weight and valew of the cause, onely all Captiall causes, concerning life or banishment where there is no expresse Law, shall be judged according to the word and Law of God, by the Generall Court.(76)
Further provision was made for requiring at least two witnesses to a crime before a person could be put to death.(77) Some authorities trace the right against self-incrimination from Puritan sources, but no such right existed in the puritan colonies.(78) The right to free speech was not included, though. An individual was not free to criticize the elected officials, however. New Haven was not alone in penalizing those who spoke despairingly of their "betters."(79)
Nor was freedom of association well observed. That all were not dour religious persons is evidenced by the order of the General Court of April 3, 1650, which required the corporal to go outside the meeting house on the Sabbath and Lecture days and take the names of anyone who is standing or sitting outside with an excuse of weakness, is to report these people to the court so that the proper justice may be dealt out.(80)
The New Haven Code provided for a three time looser law. For a first offense burglars and robbers were branded on the right hand with a "B", for a second offense he was branded on the left hand and severely whipped, and for a third offense he would be put to death.(81) Restitution was also required for these offenses, and penalties were more severe if the crime was committed on Sunday, in violation of the Sabbath.
Theft was punishable firstly by fine, paying to the victim double damages for some items, or other penalty as the court saw fit for cattle and swine. If the perpetrator could not pay the fine, he was to be sold as a servant until he could earn the necessary funds to pay the fine. Children and servants, whose parents or masters would not pay their fine, were publicly whipped.(82)
The first capital crime listed is worshiping any other than the Lord God, followed by witchcraft, blaspheme and cursing God.(83) Other capital crimes listed are willful or premeditated murder, manslaughter, bestiality, homosexuality. or any other kind of sexual activity other that the form "which God has ordained for the propagation of posterity."(84) A rape victim who does not make a complaint was liable in the same manner, but juveniles under fourteen were liable for a lessor penalty.(85) Other capital crimes included Adultery (for the male offender who is involved with a married woman, being silent on the circumstance when the female is single), kidnaping, presenting false witness against a defendant in a capital case, rebellion, children over sixteen cursing or "smiting" their natural parent (although there was a defense for cases where the parent failed to properly educate the child, or treated the child so cruelly that it was done in defense of death or maiming), a son over sixteen in rebellion against the orders of his father or mother who will not repent after chastisement,(86) and incest.(87)
Although all the New England colonies had crimes like adultery listed as capital offenses, in fact only 2 people were ever executed for it, in Massachusetts.(88) A man convicted of fornication could be punished by being made to marry the woman, a fine, corporal punishment, or a combination of the three.(89) Marriage itself was regulated, and married people whose spouses were in England, were required to bring their spouses here, or to go back to them, to avoid falling into sin.(90) It was also illegal to court a girl, or give her gifts, or do anything intended to win her affections, without the permission of her father.(91)
Many lesser moral crime, like lewdness, were committed by servants and workmen. As New Haven's prosperity dried up, and many rootless persons left for more affluent areas, these types of offenses diminished greatly.(92) As with some other violations, gambling was punishable by fine with half of the fine going to the person who turned in the violator.(93)
As far as criminal and civil procedure went, in the early history of New Haven, justice was a quest for the truth. Less than a hundred years later it had evolved into a process much more recognizable to the modern legal student, where lawyers had instituted a system of technical pleadings and the average citizen could not rely on the system to assist them.(94) It also resulted in much of the courts time being spent resolving technical issues and less time looking into the merits of a litigant's case, often with the case being resolved on technical, not factual, matters.(95)
The puritan immigrants had a knowledge of English Common law, but were not bound by it and could embrace those parts they felt were valuable.(96) It wasn't until 1665 that a superior court was held in New Haven for the first time which included a jury in the manner of the English courts.(97) The Puritan New Haven founding fathers saw no need for juries. One Hundred and twenty years later there was an entirely different attitude towards juries, evidenced when congress said:
Neither Life, Liberty, nor Property can be taken from the Possessor, until twelve of his unexetionable Countrymen and Peers, of his Vicinage, who from that neighborhood, may reasonabley be supposed to be acquainted with his Character, and the Characters of the Witnesses, upon a fair Trail, and full inquiry Face to Face, in open court, before as many of the people, as choose to attend, shall pass their Sentence upon Oath against him, a Sentence that cannot injure him, without injuring their own Reputation, and probably their own interest also...(98)
There were no apparent rules against hearsay. One passages states "Mr. Hawley ... now informed the court that Msis. Astwood told him, that her husband Capt. Astwood told her, that Jn Vffoote hath said..." and goes on to give Vfoote's statement.(99) And justice took some other strange forms. A cow was accepted as payment of a ten pound fine, even though the cows were valued at 8 pounds, ten shillings.(100)
In some aspects recognizable in today's real estate notice statutes, the law required recording real estate transactions and mortgages, protecting future buyers when the granter remains in possession and the transaction is not recorded with the court, and provided that a book be provided in each plantation to record these events.(101)
Further economic legislation was also seen as necessary. A free market economy was a foreign idea to the legislature of the New Haven Colony. People were forbidden to take "oppressive" wages or unreasonable prices for goods.(102)
I do not mean to imply the will of the people was not considered by the elected officials. On December 17, 1650, a town meeting was held. There was much dissatisfaction with the crowding of New Haven Town, and all the trouble with fences. The Governor said he did not know the mind of the town in this matter, and he discussed that some people might want to move to Delaware Bay.(103) A roll was called and all present were asked what their thoughts were on this matter.(104) This evidences a deep concern over what people thought about current issues, and a lack of authority of the leaders to make major political decisions contrary to the will of the people.
As another example of social control through legislation, parents were required to educate children, either themselves or through a schoolmaster, to the point where the child could read the bible, the English language, and answer question regarding the doctrine of salvation. Deputies were appointed to examine the children of their plantation, and parents who failed in this regard could be fined, or have their children placed with other people who would educate them. Masters had a similar obligation to their apprentices.(105)
More mundane matters evidence problems we still have today with our neighbors. On March 12, 1654 New Haven passed it's first dog law. Dogs were getting into the sheep, and large packs of male dogs were forming when ever a female went into heat. The law required females in heat to be kept tied so the large packs of male dogs would not be racing around the town chasing her, and no one was allowed to bring their dog to church or court, then allow them to run around outside without an appropriate muzzle.(106)
New Haven and the Native Americans
New Haven's dealing with the Indian tribes was not what many would assume in the early years of the colony. Where the Bay Colony held their land based on a patent from the King, the New Haven pioneers swayed more towards Roger Sherman's ideas, that the lands were in possession of the native Americans.(107) One of the first things done in New Haven was to procure land from the local Indians for the colony site.(108) Some other groups colonizing the New World had little or no regard for the native inhabitants. Spanish settlers subjugated the local populations to slavery to enhance their own financial position.(109) The Puritans looked at the natives as humans with rights and responsibilities, although this attitude was tainted with a feeling of moral superiority and paternalistic attitudes towards the "heathens."
It is evidenced that the settler's had some regard for the process of buying land from the Indians. Milford and New Haven had a border dispute as to where the border actually was. The suggestion offered by the New Haven Court was to appoint a committee, to work with a committee from Milford and establish boundary line. They were directed to first speak with the Indians to get as much information as possible as to where the bounds lay.(110) There would be no need for this unless those in New Haven thought they had contracted with the Indians for particular land. Questioning the natives was to determine who had former title in a sense, and to see the borders of the land conveyed.(111)
The court was more than willing to investigate wrongs done to the Indians. On June 29, 1653 the court ordered that guns taken from some Indians in Southold be returned. When some tried to argue that the guns were taken because the Indians had "not carried it well" meaning not in a safe manner, and that those who seized them wanted a half value of the guns, as was normal for many actions taken by citizens for the public good, the court would not allow it and ordered all the guns returned and told that no public quarrels were to be started with the Indians on such matters.(112)
On June 25, 1650, a native called Wash complained to the court that a sailor had hired him to guide him to Totoket, ad when he asked for payment, the sailor first tried to short change him and when he objected, the sailor assaulted him and broke his arm. The Court had two surgeons examine Wash and they confirmed his arm was broken. The sailor denied the story, saying he offered Wash what he paid him, and that he defended himself when Wash attacked him. The court asked Wash if he would take payment in satisfaction, but Wash wanted the sailor to pay for the medical expanses. The court placed the sailor in prison until he was bonded out.(113) The incident shows a court of white settlers willing to take the word of an Indian over that of another white man.
The court specifically held an Indian, Thomas Hopwell, to a lessor standard on March 25, 1657. telling him that if he has been an Englishman he would have been treated harsher.(114) Nor was this an isolated case.
In July of 1651 Goodwife Holt complained that a Connecticut Indian came into her
house when only her son was home and stole a pair of new stockings worth 5 schillings.
He denied it before the governor earlier, but now confessed and apologized. The court
pointed out that the Indian did not know of the law of treble restitution, and only required
him to pay 5 schillings, the value of the stockings, (she had regained the stockings) and
was spared corporal punishment.(115)
My Brother's Keeper
Puritan punishment was not only directed towards wrongdoers. Those of the community who knew of other's wrong doing and allowed it in a situation they could control were also punished. In the May 28th Magistrate's Court in New Haven William Ellit and Hannah Spencer were brought to justice because of "vncleane, filty cariages betwixt them."(116) They had sexual relations while on William Benfield's boat. Ellit was additionally charged with enticing Spencer to a marriage without permission of the person in charge of her. For these crimes Ellit was sentenced to be "severly whipped" and to pay forty shillings, while Spencer had to attend Ellit's whipping and pay 10 pounds.(117)
Benfield, who was in charge of the boat on which the crimes took place, was also charged for allowing Ellit and Spencer to go alone into the Cuddy after learning the had been having illegal relations, and for allowing Ellit to propose marriage to Spencer without the consent of those which had "the dispose of her."(118) For these crimes Benfield was fined 5 pounds,(119) a not insignificant sum.
In that same court session John Knight was charged with having homosexual relations with a fourteen year old boy, and other "filthyness" with Mary Clarke, and having previously been convicted of similar crimes he was sentenced to hang.(120) James Clarke and his wife, parents of Mary Clarke, were not penalized, but were admonished by the court because they were told that Knight was involved with their daughter and did not notify the authorities.(121)
Goodman Judson and his wife were also singled out. They had assured the Clarkes that when Mary was around Knight would be sent away, and If he and she were both there, they would not be left alone, but witnesses testified to several occasions where the Judson's broke their trust of caring for the Clarke's daughter, allowing her to be alone with Knight, knowing his "filty disposition," and counseling Mary to conceal the crime.(122) For this William Judson was fined 10 pounds "that it may be a warning to gouernors of families to be more carefull and watchfull ouer the charge and trust they take vpon them."(123)
To prevent men from falling into temptation, the Colony made a law requiring
married men whose wives were still in England, or another colony, to bring them to New
Haven within a certain time, or to leave the colony. In one case, a William Gibb was
brought to court for a violation. He said he was ignorant of the law, so the court had the
law read to him to acquaint him with it, and was told that there was a LL20 fine involved
if he violated it.(124)
Confession is Good For The Soul
On January 7, 1650/51 the Court heard the case of Thomas Langden. He was charged with "disorderly Intertaining of young men in his house at vnseasonable times in ye nights to drinke wine, strong watter, and take tobacco..."(125) Other witnesses had testified previously of their participation in these events, owning up to them, but Langden did not grovel to the court. He said he saw no evil in it and "if they were in old England they could sing and be merry."(126) The court considered the effect on the plantation and the write up of the case stresses that he was unrepentant. The court warned him that the "miscariage is exceedingly great and may produce mischeivous effects in a plantation," and went on to warn him it deserved corporal punishment and a large fine, but then mentioned it was his first offense so the fine would only be 20 schillings.(127)
In October of 1651 the daughter of Captain How(128) was brought before the court for being a profane swearer. Among her crimes were saying that the scripture was not worth reading, that she swore by God, that she swore "by the bottom of her soule," and said to her mother "a pockes of ye devill what ayles this madd woman."(129) When asked if she would own up to her sin and show repentance she boldly refused and desired it might be proved, at which point several witnesses testified about her actions and she was held guilty. She was fined 10 schillings and ordered publicly whipped, suitable to her years.(130) As further proof that youth was not a shield consider Jacobus Loper, a twelve year old servant, who was convicted of arson and perjury. A fine of 200 pounds was levied, and if he was unable to pay it he was to be sold as a servant.(131)
Contrast this to the normal course of event when someone was charged with a crime. In April of 1651 John Wood was charged with stealing a pig, butchering it, and selling the meat in Milford, lying to the buyers where the meat came from. In court he confessed to all, adding he found the pig in the woods and it had been bitten by a wolf, and he lied to people who saw it before he killed and butchered it. In court after confessing he apologized and "desires to be humbled for it befoer God and his people."(132) He was ordered to make treble restitution to the owner of the pig and pay the court 10 schillings for lying.(133) This is far more typical of the attitude of those accused of crimes before the court.
Likewise, in September of 1652 an assault case came before the court. A verbal
dispute between Thomas Beech and Edward Camp turned into an assault when Beech
was walking home and Camp overtook him, threw him down, and hit him with a
"cudgell." The injuries were readily apparent to those that saw him later. The problem
was that there were no witnesses to the assault and Camp would not confess. The
Governor felt the only way to clear the case was for Beech to make his statement after
taking an oath and proceeded to show him the dangers of perjury in such a case when a
friend took Camp aside. The next step would have been for Camp to take an oath and
deny the charge. Apparently this put the fear of God into Camp, literally, and he
confessed to his crime. He was fined, in addition to paying Beech for his lost wages,
twenty schillings for disturbing the peace, and told the fine would have been much
higher except for his seasonable confession.(134)
Slander
The Courts spent much time on cases of slander. The general attitude was that a slander was a lie that injured other people, and the court looked at what was said, who heard it, and the truth of it.
One case involved an Ambrose Sutton who told his friends he had been out with Margaret Cadwell after dark and he could have done anything he wished to. Witnesses were called to testify about his statements, who it was said to, and about the truth of the statement. When all was brought out it was a case of someone trying to sound important to his friends by elaborating on the truth. For his troubles Ambrose had to pay 40 shillings to the victim and 20 to the town. (135)
The legal terminology of today was in use in slander cases also. Another case
involved the testimony of Mrs. Higenson, who said that Mrs. Newman said Goodwife
Fuller entertained a young man in her husband's absence and made him breakfast. The
court then inquire of Mrs. Higenson how the statement "came to be published," using a
term still in use today. She replied that the Elder's wife was present. Any implication
that a woman was less than honorable was treated seriously, and when Mr. Fuller
testified he related that the young man was there because he had invited him. Mr.
Newman was fined for his wife's behavior.(136)
Afterwards
It is fair to say Davenport died thinking his great ambition was a failure. When New Haven was absorbed into Connecticut by charter from the King many of the residents of New Haven were relieved. Davenport, who had fought tooth and nail at every step, saw it as the final gasp of what was to be the city on the hill shining as a beacon to lead the world to the true path. In a letter to the Governor of Massachusetts he wrote "You see my zeal for preserving Christ's interest in your parts, though in New Haven Colony it is miserably lost." Eaton saw New Haven as the future commercial center of Long Island Sound, and gateway to northern New England. By the time of his death he must have realized that fences to keep cows and pigs out of the corn were foremost on the average citizen's mind. The two pillars of New Haven could not have been satisfied with how their endeavor turned out.
It is only by looking at the larger sense we can see if there are triumphs also. A large sense of the Connecticut Yankee draws from a Puritan Heritage. The legal system evidenced by the records left to use show a justice that did not shirk to deal with transgressors, but looked also with mercy on those who seemed contrite, and appeared to have learned their lesson. Harsh punishment was justified by repeated transgressions, and crimes of a nature that showed to the people of the day a depraved indifference to what was right.
From our vantage of over 350 years, many of their attitudes are particular. Watching your neighbor to see if he transgresses. Husbands being responsible for their wives criminal fines. An ordinance against proposing to a girl or trying to gain her favor without her father's permission. Capital punishment for religious transgressions.
Our view point is stilted though. New Haven of the 1600's was a different society. There was concern over a girl's good name, even a serving girl. Most of the crimes were reasoned to be for the good of the Colony as a whole. Although Juries were not allowed, the justice handed out seemed reasoned and fair. By looking the Colony of New Haven we can see some of the influences that led to our present system. Perhaps in that Eaton, Davenport, and the Colony of New Haven was more successful than they could ever have appreciated.
1. It is almost forbidden to say "our past" today, because so many of us come from backgrounds far removed from the Puritans of New Haven. But it was these individuals who brought some of the ideas to these shores that evolved into the political underpinnings of the United States. It was the tensions that Puritan Society espoused that led to great tensions between different generations tat helped shape ideas of the will of the people. The origins of New Haven and New England are valuable as an aid in understanding how our country, and our political system developed, because that directly effects the lives we live today.
2. Hereinafter NH Col. Rec vol. 1.
3. Hereinafter N.H. Col. Rec. vol. 2.
4. Hereinafter N.H. Town Rec. vol. 1 or 2.
5. Although I decline to cite a particular page in the town records, open volume 1 to almost any page and before long you will find mention of someone being fined for having a defective fence that was not repaired after being warned by the fence watcher.
6. While it is not my intent to discuss the Puritan movement and it's history in any length, a brief description helps put Early New Haven in perspective. The material here is drawn from Francis J. Bremer, The Puritan Experiment: New England Society from Bradford to Edwards, (University Press of New England, Hanover, NH)(1995).
7. Id. 6-10.
8. Id. 13-14.
9. I use the term "man" to denote humankind. In fact there were more female Puritans than male Puritans. Id. at 20.
10. Witte, John, Blest be the Ties That Bind: Covenant and Community in Puritan Thought, 36 Emory L. J. 579, 590 (1987).
11. Id.
12. Id at 592.
13. Id.
14. Atwater, Edward E., History of the Colony of New Haven to it's Absorption into Connecticut." Rand, Avery and Co., Boston, 1881 at 38.
15. Id at 24.
16. McCarthy, Finbarr, Participatory Government and Communal Property: Two Radical Concepts in the Virginia Charter of 1606. 29 U. Rich. L. Rev. 327, 370 (1995).
17. In New Haven's case it was mostly for naught. A ship was built to take the young colony's excess to England to trade. Loaded with trade goods, Davenport's manuscript, and some of the leading individuals from the colony, it sailed away to England and was never seen again. An attempt to set up a trading post to capture the fur trade with the Indians in southern New Jersey led to it being burnt out by the Dutch, who said they were in Dutch territory, with the loss of all their stock. An attempt to run an iron works failed miserably. In the end, to a large extent, the colony became agrarian instead of the dominant force over Long Island Sound that the founders had envisioned.
18. Chapin, Bradley, Criminal Justice in Colonial America, 1606-1660. Athens, Ga., University of Georgia Press, 1983 at 8.
19. The biographical material on davenport is taken from Franklin B. Dexter, "Sketch of the Life and Writings of John Davenport," Papers of te New Haven Colony Historical Society v.2 at 205-238 (1877).
20. Disputes over the baptism of the children of non-church members is the same issue which led to great discord in New Haven years later, and led to Davenport's eventual decision to leave there for Boston.
21. Unless otherwise indicated the majority of the information on Eaton's background comes from Simeon E. Baldwin, Theophilus Eaton: First governor of the Colony of New Haven. Papers of the New Haven Colony Historical Society, vol. 7 at 1-34 (1908).
22. New England Historical and Genealogical Register vol. 38 at 29.
23. Baldwin citing "Letter to James I, Calendared in the Report of the Deputy Keeper of the Public Records of Denmark for 1884, Appendix II, p.48."
24. Cite
25. Letter from John Davenport to John Winthrop the Younger. November 11, 1657 reprinted in Letters of John Davenport, Isabel McBeath Calder, ed., Yale University Press, 1937. Original at Yale University Library.
26. Mitchell, Mary Hewitt, History of New Haven County, Connecticut. The Pioneer Historical Publishing Co., Boston, 1930 at 37.
27. The description of the meeting is the first recorded action of the settlers after the signing of the treaty with the natives. It is at N. H. Col. Rec. Vol. 1 at 1-19
28. The wording is paraphrased and modernized.
29. "Ordinances" was commonly used to refer to the rules of scripture. To attend ordinances was to attend Sunday sermon or Wednesday's church service.
30. At this time the Church had not yet been formed.
31. The substance of these discussions is not recorded.
32. It is obvious that the concept had been discussed previously among the settlers.
33. N. H. Col. Rec. Vol. 1 at 4.
34. Blake, Chronicles at 154.
35. McManus at 212. In Connecticut three others fled before a verdict could be reached, and three others had jury convictions overturned by the courts. Only seven of 24 cases resulted in not guilty verdicts, and two of those were cases against a woman who was convicted on a third charge, but had it overturned by the court. Id.
36. Levermore, Charles H., The Republic of New Haven, John Hopkins University, Baltimore, 1886 at 30.
37. Young, Martha M., The Salem Witch Trials 300 years later: How Far Has the American Legal System Come? How Much Farther Does it Need to Go? 64 Tul. L. Rev. 235 (1989).
38. I. Mather, Cases of Conscience Concerning Evil Spirits Personating Men (1693, 1974 reprint).
39. NHCol at 451-452.
40. Id at 152 and N.H. Town Rec. ii. 174, 179.
41. Id.
42. Elizabeth Godman had problems with being suspected of witchcraft many times. On a previous occasion she said at court that she wished to attend church, but was not allowed because she was suspected of witchcraft. She said she was in great need of God because at night she saw strange apparitions and lights about her head, and strange sights that frightened her. When asked why she didn't have someone stay with her at night, she said she was afraid some hurt would come to them and she would get the blame. N. H. Col. Rec. Vol. 2 at 175.
43. Cahn, Mark D., Punishment, Discretion, and the Codification of Prescribed Penalties in Colonial Massachusetts. 33 Am. J. Legal Hist. 107, 108 (1989).
44. Id at 110.
45. Id at 121.
46. New Haven's Settling in New England And Some Lawes for Government. Livewell Chapman, London, 1656. In citing to the original code I will refer to page numbers in ****, which is somewhat easy to gain access to.
47. Mitchell at 43.
48. NHCol at 186.
49. Atwater, Edward E., A History of the Colony of New Haven to it's Absorption into Connecticut, Rand, Avery and Co., Boston, 1881 at 226.
50. N.H. Code at 567.
51. Blake, Henry T., Chronicles of the New Haven Green, Tuttle, Morehouse & Taylor Press, New Haven, 1898 at 52.
52. NHCol at 590.
53. NHCol at 588.
54. NHCol at 588.
55. Mitchell at 42.
56. Evermore, Chronicles at 35.
57. N.H. Code at 568.
58. NHCol at 568.
59. NHCol at 569.
60. 60 HCol at 569.
61. NHCol at 569-570.
62. NHCol at 570.
63. NHCol at 570-571.
64. Hall, Timothy L., "Roger Williams and the Foundations of Religious Liberty", 71 B. U. L. Rev. 456, 463(1991).
65. Id.
66. Atwater supra note# at 227.
67. Id. at 464.
68. ?? supra not # at 226.
69. cite for Ann's trial. Indeed she remained wife to the governor to his dying day, though barred from attending church services.
70. cite colony records.
71. cite.
72. Atwater, Supra note # at 120.
73. McConnell, Michael W., The Origins and Historical Understanding of Free Exercise of religion., 103 Harv. L. Rev. 1409, 1426 (1990).
74. N.H. Code at 567-568. One method used was for a voter to indicate "in the affirmative, by putting in an Indian Corne, or in the Negative, by putting in a Beane,..."
75. NHCol at 602.
76. NHCol at 571-572.
77. NHCol at 572. Interestingly, although many of the laws reflect practices in place before the establishment of the code, the first white man put to death was *** *** who was executed for bestiality after a pig gave birth to a stillborn offspring which apparently strongly resembled the defendant. It seems they both had one eye and there were similarities between their skin complexions When confronted and jailed, *** confessed after being told that confession could save him. He was not told confession would save him in God's kingdom, not New Haven. There were no witnesses against him, and he was executed based on numerous witnesses who observed his confession. This occurred many years before the code was adopted.
78. Moglen, Eben, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-incrimination., 92 Mich L. Rev. 1086, 1087 (1994).
79. Eldridge, Larry D., Before Zenger: Truth and Seditious Speech in Colonial America, 1607-1700, 39 Am. J. Legal Hist. 337, 338 (1995).
80. N.H. Town Rec. vol. 1 at 13.
81. NHCol at 575.
82. NHCol at 575.
83. NHCol at 576. Although the code provided for capital punishment for these crimes, no one was executed for blasphemy or Sabbath breaking. Blake, Chronicles at 158.
84. NHCol at 576-577. The use of "manslaughter" is the modern usage. In the code manslaughter is defined as the taking of a life in defense of oneself, another, or property when no means other than deadly force will do. Id at 599.
85. NHCol at 577.
86. NHCol at 578.
87. NHCol at 593.
88. McManus, Edgar J., Law and Liberty in Early New England, The University of New England Press, 1993 at 174.
89. NHCol at 590.
90. NHCol at 600.
91. NHCol at 600.
92. Levermore, Republic at 141.
93. NHCol at 590.
94. Mann, Bruce H., Law, Legalism, and Community Before the American Revolution., 84 Mich. L. Rev. 1415, 1427 (1986).
95. Id.
96. Wenig, Mary Moers, The Marital Property Law of Connecticut: Past, Present and Future, 1990 Wis. L. Rev. 807, 835 (1990).
97. Atwater, Edward, ed., "History of the City of New Haven to the Present Time" W.W. Munsell and Co., NY, 1887 at 235.
98. Address to Quebec (Oct. 26, 1774), in Journal of the First Congress 60.
99. NHCol at 211.
100. NHCol at 230.
101. NHCol at 584-585.
102. NHCol at 604.
103. For a more detailed discussion of New Haven's misadventures on the Delaware Bay, in the area of present day Salem and Fairfield, NJ, see Epher Whitaker, "New Haven's Adventures on the Delaware Bay," Papers of the New Haven colony Historical Society vol. 4 at 209-231 (1888).
104. N.H. Town Rec. vol. 1 at 40.
105. NHCol at 583-584.
106. N.H. Col. Rec. vol. 2 at 164-5.
107. Hall, Supra note #.
108. cite nh rec.
109. Williams, Robert A., Jr, The Medieval and Renaissance Origins of the Status of the American Indian in Western Legal Thought., 57 S. Cal. L. rev. 1, 37-39 (1983).
110. N.H. Town Rec. vol.1 at 25.
111. N.H. Town Rec. vol. 1 at 25.
112. NHCol at #10.
113. N.H. Town Rec. vol. 1 at 36-37.
114. NHCol at 208.
115. N.H. Town Rec. vol. 1 at 57.
116. N.H. at 134.
117. Id at 136.
118. Id.
119. Id.
120. Id at 137-139.
121. Id. at 137.
122. Id at 137-138.
123. Id at 138. Part of the court's concern was that by concealing the activities "his sinn went on and Gods wrath might haue broke out against the place for ye same..." Id.
124. N.H. Col. Rec. Vol. 1 at 165.
125. N.H. Town Rec. vol. 1 at 40.
126. Id.
127. Id.
128. Her first name is not recorded.
129. N.H. Town Rec. vol. 1 at 66.
130. Id.
131. NHCol at #268-269.
132. N.H. Town Rec. vol. 1 at 50-51.
133. Id at 51.
134. N.H. Town Rec. vol. 1 at 112.
135. N. H. col. Rec. Vol 1 at 192-193.
136. N. H. Col. Rec. Vol 1 at 232.