AMONG THE CIRCUMSTANCES which led the American Puritans to a practical approach to their doctrine, none was more important than the fact that they were colonials. However clear and dogmatic the dictates of their religion, they did not consider themselves free to construct their political institutions of whole cloth. Their fellow-Calvinists in Geneva several decades before had been limited only by their private aspirations and the demands of their dogma. But even in earliest New England one can see the marks of that colonial situation which would decisively affect all American political thought through the era of the Revolution, and which helped shape the moderate, compromising, and traditionalist character of our institutions.
The effects of this colonial situation can be seen, first, in the widely accepted assumption that there were definite limits which the legislators were not free to transgress—this, in a word, was constitutionalism—and, second, in the idea that the primary and normal way of developing civil institutions was by custom and tradition rather than by legislative or administrative fiat. These were rooted less in a deliberate political preference than in the circumstance in which the New England Puritans found themselves.
In the first charter of Massachusetts Bay Colony in 1629, King Charles had authorized the General Court of the colony to make “all Manner of wholesome and reasonable Orders, Lawes, Statutes, and Ordinnces, Direccons, and Instruccons”—but with the provision that they be “not contrairie to the Lawes of this our Reaime of England.” The colonists, though not lawyers, were of a decidedly legalistic turn of mind; they took this limitation seriously. It was appealed to from all sides, by the ruling clique as well as by the critics and rebels.
The story of the struggle for law in early New England has not yet been fully told. But even what we already know shows that the rulers of this Bible commonwealth were haunted by the skeleton of old English institutions. At every point both rulers and rebels felt bound to assume that an authentic Bible commonwealth could not depart far from the ancient institutions of the mother country. As early as 1635, Winthrop tells us, the deputies were worried that the magistrates “for want of positive laws, in many cases, might proceed according to their discretions.” The remedy which they sought, and which they persuaded the General Court to adopt, was plainly on the English pattern: “that some men should be appointed to frame a body of grounds of laws, in resemblance to a Magna Charta, which … should be received for fundamental laws.”
The legislative history of early New England is the story of successive attempts to provide, first, a “Magna Charta” for the inhabitants of Massachusetts Bay Colony and, later, a handy compilation of their laws. The small ruling group of early New England was not eager to embody its institutions in an all-embracing code. Leaders like John Winthrop doubted the wisdom of confining institutions by a pattern of words; they also doubted their authority. They were hardly more worried that their laws should be “scriptural,” that is approved by the Bible, than that they should be sufficiently English; and that any changes in English laws should have ample warrant in local needs.
We have been almost blind to this side of early New England life. Dazzled by the light they found in Scripture, we have failed to see the steady illumination they found in old English example. For instance, when historians came upon a little work by John Cotton entitled Moses His Judicials, they hastily concluded that since it was Biblical and dogmatic it must have been the Code of Massachusetts Bay. But the evidence shows that his code was never adopted into law, and it may never have been intended to be.
The lawmakers of the colony, to the extent their knowledge allowed and with only minor exceptions, actually followed English example. Their colonial situation made them wary of trying to create institutions according to their own notions, and alert to the need of adapting old institutions to new conditions. They were among the first to take a consciously pragmatic approach to the common law; and it was their colonial situation which gave them the occasion. This spirit was well expressed by John Winthrop in his account of the events of November, 1639:
The people had long desired a body of laws, and thought their condition very unsafe, while so much power rested in the discretion of magistrates. Divers attempts had been made at former courts [meetings of the legislature], and the matter referred to some of the magistrates and some of the elders; but still it came to no effect; for, being committed to the care of many, whatsoever was done by some, was still disliked or neglected by others. At last it was referred to Mr. Cotton and Mr. Nathaniel Warde, etc., and each of them framed a model, which were presented to this general court, and by them committed to the governour and deputy and some others to consider of, and so prepare it for the court in the 3d month next. Two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. [1.] One was, want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive, that such laws would be fittest for us, which should arise pro re nata upon occasions, etc., and so the laws of England and other states grew, and therefore the fundamental laws of England are called customs, consuetudines. 2. For that it would professedly transgress the limits of our charter, which provide, we shall make no laws repugnant to the laws of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression; as in our church discipline, and in matters of marriage, to make a law, that marriages should not be solemnized by ministers, is repugnant to the laws of England; but to bring it to a custom by practice for the magistrates to perform it, is no law made repugnant, etc.
It would be hard to find a better summary of the universal advantages of customary law over the laws of code-makers.
Only a few years later a still more outspoken statement of their legal philosophy appeared. In 1646 Dr. Robert Child and six others presented a petition to the General Court of Massachusetts Bay objecting to many laws of the colony. The petitioners argued that because Massachusetts Bay had made several drastic modifications of English law (for example, in the criteria of church-membership and hence of citizenship), the colony lacked “a setled forme of government according to the lawes of England.” But only a thoroughly English government, they said, was “best agreeable to our English tempers.”
The reply of the New England magistrates expressed their insistent allegiance to English institutions. They offered a full-dress defense of the Englishness of the government they had set up. Indeed, if a desperate historian wanted to forge a document proving that the colonies accepted English institutions as their standard, he could hardly do better than to compose precisely the declaration which the General Court adopted in reply to the Child petition. “For our government itselfe,” the magistrates argued, “it is framed according to our charter, and the fundamental and common lawes of England, and carried on according to the same (takeing the words of eternal truth and righteousness along with them, as that rule by which all kingdomes and jurisdictions must render account of every act and administration, in the last day) with as bare allowance for the disproportion between such an ancient, populous, wealthy kingdome, and so poore an infant thinne colonie, as common reason can afford. And because this will better appeare by compareing particulars, we shall drawe them into a parallel.”
The magistrates printed in parallel columns the English institutions with their New England counterparts listed opposite. They began with the Magna Charta: on the left-hand side were its main provisions; on the right-hand side the “Fundamentalls of Massachusetts,” that is, the corresponding provisions of colonial law. Next came the leading rules of English common law; arranged opposite were their counterparts in the Massachusetts “Fundamentalls.” This exhibit proved more than any argument.
The legislators did confess their weaknesses. They explained that they were mere “novices” in the law, and “therefore such faileings [as] may appeare either in our collection of those lawes, or in comforming our owne to that patterne are to be imputed to our own want of skill. If we had able lawyers amongst us, we might have been more exact.” If they had not succeeded in producing an American replica, it was certainly not for any lack of will to do so. But there had not been much time, and they had been poor in professional legal talent. “Rome was not built in a day,” the magistrates reminded the Child petitioners. “Let them produce any colonie or commonwealth in the world, where more hath beene done in 16 yeares.”
The most important of the early compilations of Massachusetts law was The Book of the General Lawes and Libertyes of 1648 which was to be the basis of later legislation and which influenced the laws of other colonies, including Connecticut and New Haven. The preface published by the General Court apologized for the inadequacy of the compilation both as a reproduction of English institutions and as an adaptation to colonial conditions.
We have not published it as a perfect body of laws sufficient to carry on the Government established for future times, nor could it be expected that we should promise such a thing. For if it be no disparagement to the wisedome of that High Court of Parliament in England that in four hundred years they could not so compile their lawes, and regulate proceedings in Courts of justice &c: but that they had still new work to do of the same kinde almost every Parliament: there can be no just cause to blame a poor Colonie (being unfurnished of Lawyers and Statesmen) that in eighteen years hath produced no more, nor better rules for a good, and setled Government then this Book holds forth: nor have you (our Brethren and Neighbours) any cause, whether you look back upon our Native Country, or take your observation by other States, & Common wealths in Europe) to complaine….
The Puritans of Massachusetts Bay said that they started from “the lawes of God” rather than the laws of Englishmen. Yet in their eyes, the two seemed happily to coincide:
That distinction which is put between the Lawes of God and the lawes of men, becomes a snare to many as it is mis-applyed in the ordering of their obedience to civil Authoritie; for when the Authoritie is of God and that in way of an Ordinance Rom. 13.1. and when the administration of it is according to deductions, and rules gathered from the word of God, and the clear light of nature in civil nations, surely there is no humane law that tendeth to common good (according to those principles) but the same is mediately a law of God, and that in way of an Ordinance which all are to submit unto and that for conscience sake. Rom. 13.5.
Their satisfaction was as great as that of Sir William Blackstone a century later and of conservative English lawyers ever since, in discovering that scriptural law and/or natural law happened already to be embodied in the English rules.
Scholarly dispute as to whether early New England law was primarily scriptural or primarily English is beside the point. For early New Engenders these two turned out to be pretty much the same. Very little of their early legal literature attempted to construct new institutions from Biblical materials. They were trying, for the most part, to demonstrate the coincidence between what the scriptures required and what English law had already provided.
We have at least one valuable witness on this matter. Thomas Lechford had had some legal training in England, and although he was in Massachusetts Bay only from 1638 to 1641, those were the crucial years when the Body of Liberties of 1641 was put together. Partly through his own forwardness and partly from the scarcity of legal talent in the colony, he was intimately connected with its legal history. But, because neither his theology nor his method of persuading jurors was orthodox, the magistrates disbarred him and censured him for meddling in church affairs. These and other irritations led him to return to England permanently, where in 1642 he issued a little book, Plain Dealing: or Newes from New-England. Its object (stated on the title-page) was to give “A short view of New-Englands present Government, both Ecclesiasticall and Civil, compared with the anciently-received and established Government of England.” Lechford—an unsympathetic, if not actually malicious, observer—was distinguished from his contemporaries by some legal knowledge and by personal experience with New England institutions. His book is an informed, though not dispassionate, account of deviations, which he eagerly sought out, of New English from Old English laws.
Lechford’s main complaint was, of course, about the churches of Massachusetts Bay. On the one hand, their membership requirements were too strict: it was not enough for a person to be of blameless conduct or to subscribe to the articles of faith. The applicants for church-membership had to satisfy the Elders and then the whole congregation of “the worke of grace upon their soules, or how God hath beene dealing with them about their conversion …. that they are true beleevers, that they have beene wounded in their hearts for their originall sinne, and actuall transgressions, and can pitch upon some promise of free grace in the Scripture, for the ground of their faith, and that they finde their hearts drawne to beleeve in Christ Jesus, for their justification and salvation …. and that they know competently the summe of Christian faith.” This procedure, Lechford observed, was evil—even inhuman—for sometimes a master would be admitted and not his servant, sometimes the servant alone, sometimes a husband and not his wife, sometimes a child and not his parent. The effects of these restrictions were far-reaching since no one could be a “freeman” of the colony unless he had been admitted to the church. And only “freemen” could vote or hold office.
On the other hand Lechford thought the government of New England churches was too democratical, for there were no bishops, and how could a church be well-ordered where in effect every church-member was a bishop? Yet this was precisely what the congregational organization amounted to. “If the people may make Ministers, or any Ministers make others without an Apostolicall Bishop, what confusion will there be? If the whole Church, or every congregation, as our good men think, have the power to the keyes, how many Bishops then shall we have?”
Although the congregational churches of New England never acquired a bishop, even before the end of the 17th century their practical, compromising spirit had led them to modify the strict requirements for church-membership to which Lechford and other English critics objected. By the ingenious doctrine of the “Half-Way Covenant,” first officially proposed in the meeting of ministers in 1662, they created a new class of church-membership for those who had not had the intense “converting experience” but who were descended from those who had had the experience. In this way they kept the church-benches filled without abandoning their ideal of a purified church where only “Visible Saints” could be full members.
A careful look at Lechford’s criticism of the laws of New England impresses one with how little they deviated from English practice. Even these deviations were easily explained by life in a wilderness colony, and would be removed as soon as the New Englanders could manage it. His first objection was the “want of proceeding duly upon record”—the legal proceedings were carried on orally rather than by exchange of documents. According to Lechford, this tended to make the government arbitrary, depriving the parties and judges of a clear understanding of the issues and making it more difficult to formulate precedents. His second objection, akin to the first, was the prohibition of paid attorneys and advocates. He declared hired lawyers “necessary to assist the poore and unlearned in their causes, and that according to the warrant and intendment of holy Writ, and of right reason. I have knowne by experience, and heard divers have suffered wrong by default of such in New England…. But take heede my brethren, despise not learning, nor the worthy Lawyers of either gown, lest you repent too late.”
Both these divergences from English practice were due to the lack of trained lawyers. Lechford himself was one of the very few men of legal training in Boston; even judges were commonly untrained in the law. Complex legal documents could not be drawn, nor professional legal counsel given, except by trained lawyers; and, for all practical purposes, such were not to be found in New England.
The magistrates of New England were soon to remove the differences of which Lechford complained. The Body of Liberties of 1641 (Liberty No. 27) provided that if the plaintiff filed a written declaration, the defendant was to have “libertie and time to give in his answer in writeings, And soe in all further proceedings betwene partie and partie.” A law of 1647 which described the evils to which Lechford referred, went still further, requiring such a written declaration to be filed in all civil cases in due time before court opened, so that the defendant would have time to prepare his written answer. But such procedures could not be legislated into being if the community lacked qualified persons to put them into practice. Therefore this requirement was omitted from later compilations of the laws, and it was decades before written “pleadings” (the technical documents which lawyers exchange during a lawsuit) became common. Meanwhile, the absence of written pleadings sometimes gave New England litigants the advantage of having their cases judged on their substance, while English lawyers and judges might quibble over the forms of documents. Increasing commerce and the growing number of men with legal training soon led the legislature of Massachusetts Bay to remove Lechford’s other objection: by 1648 it had become legal to employ paid attorneys.
Legal proceedings of the early years give us the impression of a people without much legal training and with few lawbooks who were trying to reproduce substantially what they knew “back home.” Far from being a crude and novel system of popular law, or an attempt to create institutions from pure Scripture, what they produced was instead a layman’s version of English legal institutions. The half-remembered and half-understood technical language of English lawyers was being roughly applied to American problems. Much remains to be learned of the law of those days; and the very characteristics we have described (the lack of written pleadings, for example) handicap the historian. Cases were not printed; judges did not give reasons for their decisions. Even in the 1670’s judicial precedents (English or colonial) or English statutes were not yet being cited.
But the colonists did use the peculiar technical resources of English law, even while employing them handily for many novel purposes. In the records of the decisions of the Suffolk County Courts between 1671 and 1680, about eighty per cent of the civil suits were framed as “actions on the case.” That was one of the classic English “forms of action” which had had a specific technical meaning, and hence only limited use. English lawyers had been trained to consider the “action on the case” as a highly specialized piece of legal artillery, suitable only for shooting at a particular species of game; American lawyers who lacked the advantages (and prejudices) of a good professional training were successfully employing it to hit almost any kind of creature in the woods. In this (as in their casual attitude toward the written pleadings of a case) they were, from the point of view of a modern lawyer, far in advance of their age. But for the historian of American institutions this is less important than two other facts: (1) New Englanders were using this half-understood technical language of English law to express an English message; the rights which they protected were fundamentally English legal rights—what in England would have been protected by an action of “covenant,” or “debt,” or “ejectment,” or “trespass.” (2) New Englanders, by using this language after their own fashion, thought they were being English. They were more conscious of the fact that they were speaking English than that they were speaking with an American accent.
Whenever the rulers of New England found themselves and their laws under attack, their first defense was to show how closely their rules adhered to those of England. The General Court of Massachusetts Bay always argued that the coincidence of New English and Old English laws was remarkable. When hard pressed they went on to argue that even the apparent deviations from English law were themselves justified by the laws of England, under which “the city of London and other corporations have divers customs and by-laws differing from the common and statute laws of England.”
The scarcity of English lawbooks troubled them. The General Court on November 11, 1647 “to the end we may have the bettr light for making and proceeding about laws” ordered the purchase of two copies each of six technical English legal works: Coke on Littleton, The Book of Entries, Coke on Magna Charta, New Terms of the Law, Dalton’s Justice of the Peace, and Coke’s Reports. The form of early Massachusetts legal documents (deeds, powers of attorney, leases, bonds, partnership agreements, etc.) suggests that they were copied from the same handbooks which guided English lawyers.
If we do not look at the form or language of their law but at its substance, we are again impressed by how few changes were made in New England. The most dramatic and most obvious were in the list of capital crimes. To those crimes punishable by death under the laws of England, the colonists by 1648 had added a number of others, including idolatry (violations of the First Commandment), blasphemy, man-stealing (from Exod. 21.16), adultery with a married woman, perjury with intent to secure the death of another, the cursing of a parent by a child over 16 years of age (Exod. 21.17), the offense of being a “rebellious son” (Deut. 21.20.21), and the third offense of burglary or highway robbery. These were clear cases where the laws of Scripture were allowed to override the laws of England.
But before we attach too much significance to these deviations, we must remember that in the law of capital crimes, both Englishmen and Americans were accustomed to the greatest divergence between practice and theory in those days. In England the merciful fictions of “benefit of clergy” nullified the letter of the law; in New England the practice of public confession perhaps accomplished a similar result. All this, of course, made the New England modifications of the criminal law still less significant. This was a realm where people were accustomed to unenforced rules and where Scriptural orthodoxy could be purchased with the least change in the actual ways of daily life.