First Word

The execution of the law is the life of the law

All societies, whether savage or civilized, have norms which govern the intercourse between men. Law is unavoidable. When two are more people live in proximity to one another some standards of conduct must be recognized, even if tacitly, if they are to experience a measure of peace and prosperity. The question of what type of norms or laws should be enacted to govern human interaction will necessarily be answered. The pressing concern, then, becomes, what standard of justice will the society appeal to. In some cases the society or its leaders self-consciously make appeal to some recognized standard. In some cases law gradually emerges without explicit reference to a standard of justice. But in either case, the law of the society will reflect certain principles or rules that can be traced back to some fundamental standards of justice. The question is not whether there is a standard, but what standard will govern society.

Between the year 1630, when the Massachusetts Bay settlement was established, and 1647, the Puritans of the colony had to come to terms with this question. Unlike many societies and nations before them, they had an opportunity to establish a legal system relatively independent from overt outside influence. Gradually their system of law evolved and in 1648 they established (after seventeen years) a permanent legal code – the first not wholly based upon English Common Law in the New World. Many factors played a role in bringing the work to fruition. This paper will endeavor to discover what had the most influence on this code. What standard did the Puritans employ?

Candidates for the law origin

Three things generally vie for the distinction of being the source of Puritan legal codes: one, English common law and Parliamentary legislation; two, indigenous ordinances created in order to cope with an alien wilderness; three, the Bible and, more specifically, the laws of Moses.

Historians of the Bay Colony have debated the question of which of these three sources had been the most influential. In the course of this debate there have been advocates of each position. J.M. Zane, for example, states that “As soon as the Colonies reached a stage where there was need of any developed system of law, the whole of the English law was introduced in its system of common law and equity, with exceptions that are not important.”¹ Paul Reinsch, on the other hand, writes:

[we] find from the very first, originality in legal conceptions, departing widely from the most settled theories of the common law, and even a total denial of the subsidiary character of English jurisprudence. The earliest settlers…made bodies of law… Not only did these [laws] innovate upon, and depart from, the models of common law, but, in matters not fixed by such codes, there was in the earliest times no reference to that system.²

Contrary to both Zane and Reinsch, Thomas Wertenbaker categorizes the Massachusetts colony as “The Bible State,”³ hinting that all Puritan laws were simply lifted directly out of Scripture. Thus, three historians give three divergent and mutually exclusive answers.⁴ Since the Puritans were a highly literate culture and left a good deal of documentation for posterity to review and analyze, it is surprising that such a disparity of opinion has emerged. One reason for this is, perhaps, how many historians have approached the founders of the Bay Colony and Puritanism is general. It has often been the case that modern commentators have viewed the Puritans as religious zealots who approached legal and cultural questions in a naive and simplistic manner.⁵ This myth, though thoroughly refuted by Perry Miller and others in the mid 20^th century, is still propagated today.⁶ So when historians have turned their attention to Puritan legal codes, they have tended to approach the question of origins in a way that lacks balance and nuance. George Lee Haskins, however, has fortunately corrected this error in his seminal work, Law and Authority in Early Massachusetts.⁷

In it he argues that none of these simplistic answers correspond to early Massachusetts history. The Puritans, he maintains, developed laws from all three sources.⁸ Thus, the amount of influence each of these had on the Massachusetts codes is a matter of degree, in some cases one source prevailed, in some cases others were more important. Building on Haskins work, this paper will endeavor to show (1) that the Puritans did indeed draw upon several sources for law but also (2) that they did not pick and choose their laws arbitrarily but had a clear, though perhaps not universally applied, standard of justice. And this standard was the Bible.

Rather than attempting to conflate all three sources into one long narrative, each will be analyzed separately. First the Biblical influence.

1. Scripture in the Bay Colony Law

When the Puritans aboard the Arbella arrived at Massachusetts in the summer of 1630 there were so many pressing needs (such as building homes and churches, collecting food, clearing land, etc.) that legal matters were necessarily addressed by the magistrates in a peremptory manner. As a result, there was no movement in the first few years to draft a formal constitution. Moreover, John Winthrop, the governor of the colony, had the idea that rulers – being special ministers of God – should be the ones to decide what penalties fit what crime on a case by case basis, and, therefore, no corpus of law was warranted.⁹

For the most part, the freemen were content to let their superiors decide legal disputes in a case by case manner. But as time passed several incidents precipitated uneasiness toward the magistrates and their seemingly unfettered and arbitrary authority. In 1635 Winthrop recorded in his journal that “[t]he deputies [representatives of the freemen] having conceived great danger to our state, in regard that our magistrates, for want of positive laws…might proceed according to their discretions…”¹⁰ The result was a drive to formalize colonial law. Gradually, the magistrates acquiesced to the demands of the freemen and in 1635 the first of many committees was formed to draft a body of laws to govern Massachusetts.

The first council of magistrates¹¹ failed to produce anything of significance, though. Another committee was ordered the next year with an admonition to “make a draught of lawes agreeable to the word of God, which may be the ffundamentalls [sic] of this comonwealth, & to present the same to the nexte Gen[er]al Court.”¹² This group of magistrates were more successful than the first and the result was the colony’s 1636 code, An Abstract of the lawes of New England.¹³

In it, John Cotton (the committee member and divine who actually wrote the draft¹⁴) not only outlined existing colonial law, but also set forth penal codes and inheritance laws derived almost completely from Scripture. The following samples demonstrate their biblical influence:

If a man have more Sonnes than one, then a double portion to be assigned, and bequeathed to the eldest Son, according to the Law of Nature, unlesse his own demerit do deprive him of the dignity of his Birth right.[an obvious allusion to Esau]

No increase [interest] [is] to be taken of a poore brother or neighbour, for any thing lent unto him.

If a man steale a beast, if it be found in his hand, he shall make restitution two for one.¹⁵

In the chapter on crimes, Cotton numerates twenty offenses worthy of capital punishment, including blasphemy, idolatry, witchcraft, willful perjury, murder, adultery, and sodomy – all of which are derived from the Pentateuch.¹⁶ Moreover, other chapters concerning judicial process, civil leaders, commerce, trespassing, and foreign policy are also peppered with Biblical citations. In fact, out of ten chapters, only one fails to refer to the Scriptures: the chapter which adumbrates the rights of freemen and the machinery of government (i.e. the election of deputies, their duties, when the General Court should meet, etc.).¹⁷ But even here Cotton’s prose exudes with Scriptural undertones, leaving the reader with the general impression that above all else he wanted the honor the biblical law. The document fittingly concludes with a quotation from Isaiah: “The Lord is our Iudge, The Lord is our Law-giver, The Lord is our King, He will save us.”

However, lest one come under the false impression that Cotton’s manuscript was simply lifted from Scripture (one commentator has inaccurately written that it “was based entirely upon Bible texts”¹⁸), it is important to note that many of his laws find no precedence in Scripture. For instance, many of the punishments for “less heinous” crimes are not explicitly Biblical, nor are the provisions for the protection of the colony.¹⁹ Furthermore, chapter V mandates the regulation of prices – something which is prohibited by biblical law.²⁰ But aside from this last type of statute, even laws with no explicit Scriptural warrant were at least thought to be not unbiblical.²¹ Thus, Cotton’s code surely fulfilled the committee’s mandate to “Draft a law agreeable to the word of God.”

This committee draft, however, was not passed by the General Court²² and the colony was still without formal law.²³ So more committees were appointed pursuant to the goal of establishing a colonial constitution; resulting in the next draft for submission in the summer 1641: Nathaniel Ward’s The Massachusetts Body of Liberties.²⁴

This code was provisionally passed for three years by the General Court, after which each of the ninety eight sections would undergo review for final verification.²⁵ As a result, it became the first written law of the fledgling colony. And though it too was never established as a permanent rule (the deputies were not completely satisfied and never passed it²⁶) nearly all of it made its way into the final 1648 code.

The difference between Ward’s draft and Cotton’s is significant. Of the ninety eight sections that constituted The Body of Liberties, the bulk have to do with the freedoms of the burgesses. Because of this, it has the general feel of a bill of rights. Besides this, the code goes beyond the scope of Cotton’s earlier work by extensively laying out judicial rights and procedures that pertained to all men of the colony — thereby filling a lacuna that proved to be a major stumbling block for Cotton’s draft.²⁷ Examples include the right to a trial by jury, the right to appeal and legal representation, protection against double sentencing, and the liberty to have testimony recorded in the public records.²⁸ Furthermore, Ward’s document differs from Cotton’s Abstract by omitting the marginalia consisting of biblical proof texts.

Yet there is much continuity between the two and the latter places as much dependence on the Bible as the former. The list of capital offenses, for instance, is almost identical. In fact, Ward makes an exception to the above rule by citing Scriptural passages in the margins – for the most part, the same ones as Cotton cites. Also, Ward interposes throughout the work many laws which clearly come from the Old Testament. Number 46 states that “no man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereunto.” This is an allusion to Deuteronomy 19:15, although English Common Law had already made recourse to this principle. Laws pertaining to masters and servants also can be traced to the Bible.²⁹ Even the opening section of the code stipulates that if it (or any other body of statutes) fails to list a specific injunction, a man may still be tried for offending a law of God.³⁰ All of this taken together indicates that Ward, like Cotton, placed immense import on Biblical priorities.

When 1644 rolled around (the expiration date for Ward’s Abstract) the colony was still without a permanent law. It was at this time that an effort was made in earnest to establish a code. Between the years 1644 and 1648 many more committees were formed for this purpose. These groups made a concerted effort to refine, draft, omit from, add to, and reword previous codes. The fruit of their collective labor was the long awaited authoritative document: The Laws and Liberties of Massachusetts, 1648.³¹

Whereas the previous two codes were the products of individuals, the Laws and Liberties was written by a group of men. This being the case, it should come as no surprise that the latter is much longer than its two predecessors – about four times as long as The Body of Liberties.³² It is also a more organized work in that it alphabetically lists rules according to topics; from “Abilitie” to “Wrecks at the sea.”

Like Ward’s reliance of Cotton’s work, the committee members who wrote the 1648 code leaned heavily upon Ward’s draft. So much use was made of The Body of Liberties that whole sections were drawn from it.³³ Examples include the capital laws (which also contain Biblical references), prohibition of barratry, a restriction on executing condemned men within four days of their sentencing, and regulations concerning jurors.³⁴ In fact, the wording of laws concerning arrests and monopolies were simply copied from the earlier corpus.³⁵ More examples can be given, but these should suffice in demonstrating the continuity between the codes.

With this continuity came dependence on Scripture. For since Cotton and Ward paid close attention to biblical commands and the 1648 code paid such close attention to Cotton and Ward, it follows that its authors were also greatly influenced by the Bible. Moreover, the Laws and Liberties make many implicit references to the Scriptures. The forbiddance of usury, for instance, states that its practice is “contrary to the Law of God,” and a regulation against profaning “the Holy name of God” is undoubtedly derived from Scripture.³⁶ And although the code cites no specific Biblical texts (except for capital offenses), the general influence of Scripture is obvious throughout.³⁷

Finally, the most telling evidence in favor of the view that the Puritans were constrained by the precepts of Scripture was a statute under the heading “Prescriptions.” It states: “no Custom or Prescription shall ever prevail amongst us in any moral case to maintein [sic] any thing that can be proved to be morally sinfull by the Word of God.”³⁸ This statement makes a nice précis of the Biblical influence of not only the Laws and Liberties, but of the other codes as well.

Thus it has been demonstrated that the Bible played a major role in early Massachusetts law. Now it remains to be seen what other influences were operative. The English element will be examined next.

2. English Law in the Bay Colony

The English influence can be broken down under two general rubrics. The first is what can be called the passive influence. This is all of the prejudices and biases which the settlers brought with them to the new world. The second influence will be termed the positive influence. This has to do primarily with the charter of the Massachusetts Bay and the repercussions that would follow should the colony decide to depart from its directives. First the passive influence.

The Puritans aboard the Arbella were, among other things, Englishmen. Most were born and raised in East Anglia and had never been outside their homeland.³⁹ Hence it is only reasonable to assume that every area of their lives would be affected, to some degree, by their heritage. And, since English law was very much a part of their heritage, it follows that their laws would probably reflect this fact. Moreover, two of the framers of New England law had received some formal training in the law of England: Governor John Winthrop and Nathaniel Ward.⁴⁰ What is more, it seems likely that the legislators had the aid of standard texts such as Coke on Littleton and Coke on Magna Carta.⁴¹ It is no surprise, then, that when a survey of Puritan law is taken, many of them can be traced to British origins.

Examples of English law that made its way into colonial code’s run as follows. Many sumptuary laws, price regulations, and poor laws were adopted.⁴² One such example is a section of The Laws and Liberties concerning tobacco smoking. The law stipulates where tobacco is not to be taken and imposes a fine of two shillings and six pence upon violators.⁴³ A similar law was already in place in England.⁴⁴ The regulation of prices on goods and services was likewise carried over from the Old World. Set prices on labor, manufactured products, and even meals⁴⁵were antedated by decrees of Tudor and early Stuart monarchs.⁴⁶

Puritans went so far in following their English parents that they even passed a law barring all Jesuits from the colony on pain of banishment for the first offense and death for the second; yet no member of the Society of Jesus had never been known in New England.⁴⁷ Examples like these can be multiplied, but these few clearly show that Puritans were at least somewhat fluent in English law. It is also obvious from above that many of the laws in the 1648 code have their roots in English law.⁴⁸

More than a mere numeration of these laws, though, is the question why each of these was enacted. Were they used because they were English, and that was ipso facto good enough reason to become law? Were they codified because they met a particular need of the moment? Or were they established because of they were deemed to reflect some principle of biblical law? Before attempting an answer, though, one myth must be dispatched: the myth that all Puritan law was derived from English law.

Recall that J. M. Zane contends that Massachusetts imported their codes from British common law in toto. This contention is refuted by the simple fact that nobody in the colony had extensive knowledge of all areas of English law. The combined knowledge of common law in the settlement (i.e. the combined memory of Ward and Winthrop) was far short of exhaustive – even if Coke’s legal manuscripts on law were available. Thus where either knowledge or memory was insufficient, the colonialist had to make recourse to something other than English law. Of course, one can modify this thesis and maintain that where there were lacunae the magistrates would at least try to reason what English law would most likely prescribe. But this is speculative and is not supported by any documentary evidence. Add to this the fact that much of their law was of Biblical origin (as per the previous section), and the whole “transplantation” thesis proves untenable. The Puritans did not simply codify English law in their constitutions and legal statutes.

Turning now to the positive influence of England on Massachusetts law, it is of little wonder that the main source of friction came from the colony’s Charter. In it, one small proviso drastically limited law-making power. The charter reads:

…it shall and maie be lawfull to and for Governor or Deputie Governor and such of the Assistants and Freemen of the said Company for the tyme being as shalbe assembled in anyof their Generall Courts…to be specially sumoned and assembled for that purpose…from tyme to tyme to make, ordeine, and establishe all manner of wholesome and reasonable orders, lawes, statutes, and ordinnces, direcc[i]ons, and instructions not contrarie to the lawes of this our realme of England…⁴⁹

Thus, from the very beginning, the Puritans were under constraint not to depart from British codes, less they provoke the wrath of the Stuart crown.

From the wording of the Charter one gets the impression that the British Isles had a clear, written body of statuary codes. This was just not the case, though. Aside from common law -an unwritten accumulation of judicial decisions which set precedents for future cases – and parliamentary statutes, England also had a surfeit of other legal sources. There were the local courts that dated back to feudal lords of Medieval times. These were courts that the monarchy gave authority to litigate minor infractions and civil suits, each having its own set of rules and punishments. The Church of England also had a corpus of law which it enforced through the ecclesiastical tribunals. Besides these there were various other courts that had special jurisdiction in areas such as commerce and merchants as well as royal courts that looked after the king’s prerogatives such as the infamous Star Chamber.⁵⁰ Taken together, “the lawes of this our realme of England” were anything but a set of clearly defined set of statutes and regulations. And, thus, what constituted an abrogation or contrary law was to a large degree a matter of interpretation, giving the Puritans a good deal of room in which to maneuver.

Despite this inherent murkiness, some things were contrary to English law no matter which one was looked to. As has been noted above, many Puritan laws were carried over from their homeland. But many of them were novel. Two in particular were especially repugnant to British legal sensibilities.

The first was the New Englanders’ rejection of primogeniture. English law flatly stated that all land of a deceased man was to be bequeathed to his firstborn son.⁵¹ Over against this, The Laws and Liberties states “…that when Parents dye intestate, the eldest son shall have a double portion of his whole estate reall…,” implying that he was not to get the entire estate.⁵² There is some debate as to why the Puritans departed from common law at this point. Some have argued that this change was due pragmatic reasons. But much more likely, the Puritans were trying to follow the deuteronomic principle of limited primogeniture.⁵³ Whatever the reason, the law constituted a definite break from English tradition.

The second statute that went against common law was the institution of civil marriages. Again, English law was clear on this point: the sacramental function of marriages was to be sanctioned solely by the Church of England. However, the 1648 code mandates, “That no person whatsoever in this Jurisdiction shall joyn any persons together in Marriage but the Magistrate…”⁵⁴ Thus, civil marriages were mandated. There is no debate as to why the Puritans enacted this law: they were following their fellow Calvinists in Holland who argued that the only marriage ceremony recognized by Scripture was civil.⁵⁵

Both of these laws and many others⁵⁶ have no precedent in Anglo-Saxon jurisprudence. Moreover, each was clearly contrary to English law. How, then, did the Puritans justify them in lieu of the injunctions of the charter?

In the early years of the colony, the policy of the magistrates was simply not to formalize any body of law. Instead, they (the magistrates) ran the colony as they saw fit.⁵⁷ Winthrop summarizes his plan:

For that it would professedly transgress the limit 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.⁵⁸

In so doing they could avoid unwanted English intrusion. This strategy generally paid off, but in skirting the Scylla of British encroachment, they ran smack into the Charybdis of the desire of the Freemen to have a written law. Thus a dilemma.

Fortunately for the magistrates, auspicious events back in England attenuated their predicament. Throughout the 1640’s Charles I was in constant danger of civil war with the Puritan-controlled Parliament, and with the king’s eyes turned inward to his own problem, the colonists had a much freer hand to make laws contrary to the realm of England.⁵⁹ Thus, with the threat of British sanctions removed, the magistrates were able to capitulate to the Freemen.

3. Indigenous Law in the Bay Colony

It is left, now, to turn to indigenous laws, laws that find no precedents in either the Bible or English tradition. And this can be accomplished in summary fashion since most of the historical background has been covered in the first two sections. The following is a smattering of indigenous laws.

One of the most striking novelties of Massachusetts law was the freedom it gave for traveling. The Body of Liberties, for example, states that “Every man of or within this Jurisdiction shall have free libertie…to remove both himselfe, and his familie at their pleasure out of the same…”⁶⁰ English law strictly regulated travel abroad, though, requiring a writ from the king himself.⁶¹ Another original law was the prohibition of Husbands beating their wives and masters beating their servants – two things English law did not generally condemn.⁶² Moreover, Puritans also had a record of extraordinarily fair treatment toward all plaintiffs and defendants in courts of law. Robert Twombly and Robert Moore, for instance, cite that though prejudice against blacks existed in Massachusetts, they were not mistreated in the courts.⁶³

Example of indigenous laws that have to do with their geopolitical environment include, among others: a 1642 magisterial decision to ban the sales of firearms to Indians;⁶⁴ the prohibition of Episcopal and/or Presbyterian forms of church government;⁶⁵ a reward of 10 pounds for any man who kills a wolf;⁶⁶ and prohibition on protracted visitations without permission from the magistrates (this was precipitated by Anne Hutchinson and the Antinomian Controversy).⁶⁷ Other examples include the regulation of fur trade and commerce with Indians and elaboration of government functions and structure.⁶⁸

As law developed, it became progressively detailed — so much so that many of the regulations in the Laws and Liberties sound overly pedantic (not to mention humorous) to modern ears. Examples include specific admonitions to inn-keepers and potential drunkards (two whole pages full!) and a statute outlawing the game of shuffle-board.⁶⁹ In Cotton’s relatively brief Abstract one can find a few laws of strictly provincial concern.⁷⁰

One should not read too much into the ad hoc nature of these however. Many of these statutes were what Puritans considered adiaphora, matters indifferent. And when a certain problem arose than called for immediate attention, the Puritans of Massachusetts felt no hesitancy in enacting makeshift laws if they were deemed neutral toward their theological priorities.

Evaluation

Before drawing conclusions as to what standard the Puritans ultimately judged laws by, it is incumbent upon any student of English Puritanism to get clear as to precisely why these men and their families set sail for a strange and uncertain world; for if their motives, intents, and goals are understood, then the expedition of these same motives, intents, and goals will no doubt be,ceteris paribus, the driving force of the society.

There were several reasons for their emigration.⁷¹ For one, many Puritans believed God’s judgment upon a harlotrous England was imminent, and, as a result, they must flee from the coming wrath and preserve a remnant. An example of this evil boding is found in a letter Winthrop wrote to his wife in May of 1629; in it he warns, “the increase of our sinnes giues vs so great cause to looke for some heauye Scquorge and Judgement to be comminge vpon us.”⁷² Another reason for leaving was economics: land and wealth, both scarce and hard to come by in England, were thought to be had in abundance in the New World.⁷³ Also, disgust over Archbishop Laud (Winthrop once referred to him as “our great enemy”⁷⁴) and his suppression of Puritan ideas gave them little hope of ever reforming the Church of England; a goal which was a prerequisite for receiving God’s blessing.⁷⁵

Taken together, these motives add up to a necessary condition for the Puritans to depart to Massachusetts, but by no means do they function as a sufficient one. This can be demonstrated by the fact that Puritans could have gone to more familiar places on the continent if the three aforementioned reasons were the sum of their goals. Holland, for instance, allowed Puritan expatriates to do business and conduct their own church services in its land.⁷⁶ Scotland, through the labors of John Knox, had converted to Presbyterianism in 1560 and, thus, was genial to their English cousins. And even Lutheran Germany could have served as a refuge.⁷⁷ Why did they go to the Americas then? To fulfill their raison d’etre: they left to establish a society that fully comported with Scripture’s mandates.

Anybody even remotely acquainted with early colonial Puritanism is familiar with John Winthrop’s declaration that the Massachusetts Bay Colony was to be a “city upon the hill.”⁷⁸ In “Christian Charity” (a work written while on board the Arbella), Winthrop elaborates on this theme:

[W]ee are a Company professing our selues fellow members of Christ…for the worke wee haue in hand, it is by a mutuall consent through a speciall overruleing providence, and a more then [sic] an ordinary approbation of the Churches of Christ to seeke out a place of Cohabitation and Consorteshipp vnder a due forme of Government both Ciuill and ecclesiasticall…The end is to improue our lives to do more seruice to the Lord…⁷⁹

And in letter to Puritans in England, also written on board the Arbella, he declares:

…yet we desire you [leaders in the Church of England] would be pleased to take notice ofthe principals, and body of our company, as those who esteeme it our honour, to call the Church of England, from whence wee rise, our deare Mother…[we] shall alwayes rejoyce in her good, and unfainedly grieve for any sorrow that shall ever betide her, and… sincerely desire and indeavour the continuance & abundance of her welfare, with inlargement of her bounds in the kingdome of CHRIST IESVS.⁸⁰

These two passages nicely demonstrate one aspect of what Edmund Morgan has termed “the Puritan Dilemma.” Namely, the dilemma of whether to stay in England to fight the good fight of faith, or to set up a model society which the mother country could emulate. Of course Winthrop and his followers chose the latter. He did not think of himself as abandoning England: his, and other Puritan leaders’ main motivation for setting off to Massachusetts was to establish a government under which godly churches and godly men could flourish; and where he and his fellow sojourners could provoke their motherland to jealousy and thereby bring it to repentance.⁸¹

With the reason for Puritan emigration in mind, it is easy to see that, ostensibly at least, they relied on the Bible to govern every area of life; even in the area of legal codes. This, in turn, gives prima facie plausibility to the first category: the Bible was their standard. The burden of proof falls on the other two alternatives.

Bradley Chapin, in his examination of Colonial penal laws, asserts that of Massachusetts statutes, 41.2% had English origins, 20% were indigenous, and 38.8% were drawn from the Bible.⁸² Assuming his numbers are accurate, this alone refutes the notion that the Puritans were monolithic in drawing upon sources for law – at least in the area of criminal activity. But it also raises a question as to whether the Puritans really did use Scripture as their standard. For almost two-thirds (61.2%) of their laws had no direct sanction from the Bible. The following passage from Haskins is helpful in dealing with this problem.

Although a number of the colony’s laws were based upon the Old Testament, and although several laws were enacted to meet the needs of a wilderness community, there was also a very substantial reception of various forms of English law during the early period. Yet to assert that much of the law of the colony was substantially English provides no answers to the further and vital questions: how much, of what sort, and why?⁸³

How much, of what sort, and why? The latter is the question of immediate concern. Why – by what standard? – did the Puritans enact the laws they did?

When it is asserted that the Bible was their standard, it does not necessarily mean that the Puritans looked for a Scriptural verse to justify every single law. Rather, it can also mean that they made sure all laws were Scriptural. This difference between the two is subtle, but telling.

When arguing against codification of penalties, John Winthrop, for example, based his appeal on the Bible. However, he did not point to any passage. Instead he cited that the Torah had only a limited number of set punishments for specific crimes and, thus, God had implicitly left sentences of other crimes to the discretion of leaders. So Winthrop: “I would knowe by what Rule we may take vpon us, to prescribe penaltyes, where God prescribes none.”⁸⁴ Furthermore, when laws were passed that had no precise antecedent in Scripture (such as the visiting laws and commerce statutes) they were generally Biblical in spirit. That is, they helped facilitate enforcement and/or execution of other more established laws.⁸⁵ Finally, many laws were thought to be neutral and, therefore, acceptable. But if a law was deemed contrary to Scripture the Puritans of Massachusetts were swift to reject it. As stated above, no laws contrary to the word of God were countenanced.⁸⁶

Hence, the Puritans were anything but simplistic in their legislation; the lawmakers were, for the most part, well educated and used many sources in establishing statutes. The idea that they were too backward to draw upon more than one corpus of law is unwarranted due to the sophisticated nature of Puritan thought. They felt free to draw upon sundry legal traditions and, when necessary, had no qualm with enacting ad hoc legislation in order to deal with immediate problems.

At a foundational level, though, the Bible was the ultimate court of appeal for the Massachusetts Puritan of the early 1600’s; it was the final arbiter between good law and bad. If a statute was perceived to go against Scripture (such as the cases of primogeniture and ecclesiastical marriage), it was summarily dismissed, ipso facto. So while the charter of the colony stated that no laws should be contrary to the realm of England, the operating assumption of the Puritans was that their covenant with God came first. And if this meant having to reject a decree from the king himself, the Puritans were willing to do so. Hence, in respect to law their credo can be stated by a slight but significant rewording of the charter: “our colony shall establish laws not contrary to God’s holy Word.”

Notes

1. J.M. Zane, The Story of Law (New York: 1927), 358. Cited in George Lee Haskins, Law and Authority in Early Massachusetts (New York: Macmillan, 1960), 5.

2. Paul Samuel Reinsch, “The English Common Law in the Early American Colonies,” in Select Essays in Anglo-American Legal History, vol. I (Boston: Little, Brown, and Co., 1907), 369.

3. Thomas Jefferson Wertenbaker, The Puritan Oligarchy: the Founding of American Civilization (New York: Charles Scribner’s Sons, 1947) 41-77.

4. One may object and ask if these are necessarily contradictory. The answer to this can only be given in the context of how the respective historians state their case. All three write in unqualified terms and all three do not lend much (if any) freight to the other positions – with the possible exception of Reinsch who does hold out a stick to Biblical laws. Thus, as far as these historians are concerned, these positions are contradictory.

5. See, for example, Vernon L. Parrington, The Colonial Mind, 1620-1800 (New York: Harcourt Brace Harvest Book, 1927).

6. Perry Miller, The New England Mind: The Seventeenth Century (Cambridge: Harvard University Press, 1939). Perry Miller, The New England Mind: From Colony to Province (Cambridge: Harvard University Press, 1953). See also, Edmund S. Morgan, The Puritan Dilemma: The Story of John Winthrop (Boston: Little, Brown and Co., 1958).

7. George Lee Haskins, Law and Authority in Early Massachusetts (New York: Macmillan, 1960).

8. Haskins, see Chapters IX, X, and XI respectively for Puritan use of all three source.

9. See his “Discourse on Arbitrary Government,” John Winthrop, Winthrop Papers vol. IV (New York: Russell & Russell, 1929), 468-487.

10. John Winthrop, Winthrop’s Journal, “History of New England,” 1630-1649, vol. I (New York: Barnes & Noble, Inc., 1908), 151.

11. The members of the first committee were “The Goun[er] (John Haynes), Deputy Goun[er] (Richard Bellingham), John Winthrop, & Tho: Dudley, Esq” – all magistrates. Records of the Governor and Company of the Massachusetts Bay in New England, ed. Nathaniel Shurtleff (Boston: William White, 1853), 147.

12. Mass. Records I, 174. Cited in Haskins, 24.

13. John Cotton, An Abstract of the Lawes of New England in John Cotton, the New England Way (New York: AMS Press Inc., no date).

14. For an overview of John Cotton’s life and work see Larzer Ziff, The Career of John Cotton: Puritanism and the American Experience (Princeton: Princeton University Press, 1962).

15. Abstract, Chap. IV no. 6, Chap. V no. 6, and Chap. VIII no. 6. Each of this has a reference from Scripture and latter reads almost identical to Ex 22:4: “If the theft be certainly found in his hand alive, whether it be ox, or ass, or sheep; he shall restore double.” (ASV)

16. Abstract, Chap. VII.

17. Abstract, Chap. II.

18. James T. Adams, The Founding of New England (Boston, 1921) n. 64 at 211. Cited in Haskins, 126.

19. Abstract, Chaps. III and VIII.

20. Gary North, Puritan Economic Experiments (Tyler: ICE, 1988), 22-40.

21. See Greg L. Bahnsen, Theonomy in Christian Ethics (Phillipsburg: Presbyterian and Reformed Publishing Company, 1977), 549-557.

22. There are no transcripts of why the code was not enacted, but Haskins speculates that the reason is that it was not “sufficiently comprehensive.” Haskins, 126.

23. But the draft did have a large impact on future standards and whole sections of it were carried over to the final 1648 code. This is especially true of capital offenses. Compare chapter VII of cotton’s work with the section on capital laws in the 1648 document, for instance. Also Cotton’s law did make its way to the New Haven colony where it became the settlement’s basic code.

24. Nathaniel Ward, The Massachusetts Body of Liberties, in Edmund S. Morgan, Puritan Political Ideas, 1558-1794 (Indianapolis: The Bobbs-Merrill Co., Inc., 1965), 177-202. For an account of what took place in the interim see Haskins, 126-128.

25. Body of Liberties, 98.

26. Haskins, 131.

27. Body of Liberties, 18-57.

28. Body of Liberties, 29, 36, 26, 42, and 38.

29. Compare 87 to Ex. 21:26 and 88 to Ex. 21:2-6 and Deut. 15:12-18.

30. Body of Liberties, 1.

31. Laws and Liberties of Massachusetts, 1648, with an introduction by Max Farrand (Cambridge: Harvard University Press, 1929).

32. Ward’s draft constitutes 26 pages whereas the Laws and Liberties covers 44 oversize pages.

33. For a table which parallels the similarities of the two works see The Colonial Laws of Massachusetts, ed. W.H. Whitmore (Boston, 1889), 21-24.

34. Compare sections 94 (capital offenses), 34 (barratry), 44 (rights of condemned), and 49 and 50 (jurors) in The Body of Liberties with their respective sections in Laws and Liberties.

35. Compare sections 33 and 9 of Ward’s draft to the wording of the 1648 law.

36. Laws and Liberties, 51 and 45. Cf. Ex. 20:7.

37. See Haskins, 141-162 for detailed discussion of Biblical influence on the 1648 code.

38. Law and Liberties, 45.

39. Wertenbaker, 1-40.

40. Haskins, 132 and Morgan, 12-13.

41. The magistrates ordered copies of Coke’s works on common law in November of 1647, whether they arrived in time is a matter of debate. Haskins argued they did. See Haskins, 137 and 179. See also Mass Records II, 212.

42. Haskins, 178.

43. Laws and Liberties, 50.

44. Haskins, 178.

45. Mass. Records I, 79, Laws and Liberties, 26, 27, Mass. Records I, 214.

46. G.W. Prothero, Select Statutes and Other Constitutional Documents Illustrative of the Reigns of Elizabeth and James I (Oxford: Oxford University Press, 1894), 50.

47. Mass. Records II, 193.

48. For a detailed discussion of English law in Massachusetts see Haskins, 163-188.

49. “The Charter of the Colony of the Massachusetts Bay in New England,” in Mass. Records, 16.

50. For courts besides those of common law see, William Searle Holdsworth, “The Development of the Law Merchant and its Courts,” in Select Essays in Anglo-American Legal History, 289-331.

51. Haskins, 170.

52. Laws and Liberties, 53.

53. Deut. 21:15-21. See also Haskins, 170-171.

54. Laws and Liberties, 38.

55. Haskins, 194.

56. See Haskins, 189-192..

57. This does not mean, however, that they ran it arbitrarily. See Winthrop’s “Discourse in Arbitrary Government” in Winthrop, WP IV, 468-487.

58. Winthrop, WJ I, 324.

59. See Roger Lockyer, Tudor and Stuart Britain, 1471-1714 (New York: St. Martin’s Press, 1964), 268-296, for an account of England in the throws of civil war.

60. Body of Liberties, 17.

61. William S. Holdsworth, A History of English Law, vol. I (London, 1956), 230.

62. Haskins, 196.

63. Robert C. Twomby and Robert H. Moore, “Black Puritan: The Negro in Seventeenth-Century Massachusetts,” William and Mary Quarterly vol. 24 no. 2: 224-242.

64. Mass. Records II, 16.

65. Laws and Liberties, 19.

66. Mass. Records I, 304.

67. Mass. Records I, 196.

68. Haskins, 116.

69. Laws and Liberties, 29-31 and 24,

70. These include restrictions on selling land to aliens and the probate of wills. See Abstract, section IV.

71. Persecution was not one of them. For though the Puritans were disappointed about the Elizabethan settlement, which never translated into the ecclesiastical reform the Puritans had expected from the Protestant monarch, and were further frustrated by set backs by the reigns of James I and Charles I ( the latter of whom being responsible for the appointment of their nemesis Laud to the archbishopry of Canterbury), they were never again oppressed as they were under “Bloody Mary’s” tenure. See Lockyer, chapters 9,11, and 12 for a general account and M.M. Knappen, Tudor Puritanism (Chicago: University of Chicago Press, 1939), 163-216, for a detailed narrative of the Puritans’ relationship with Queen Elizabeth.

72. Winthrop, WP II, 91.

73. Haskins, 22, 23. Morgan, however, disagrees with Haskins, but offers no documentary evidence to support his claim. See Morgan, TPD, 35.

74. Winthrop, WJ II, 31.

75. David B. Rutman, Winthrop’s Boston (Chapel Hill: The University of North Carolina Press, 1965), 19. For a discussion on Laud’s relationship with the Puritans see H.R. Trevor-Roper, Archbishop Laud 1573-1645 2d ed. (New York: Macmillan, 1962).

76. Morgan, 181-2.

77. Puritans had been in Germany in both Henrician exiles and during Queen Mary’s reign, and could have, no doubt, found refuge there even in the 17th century. See Knappen, 51-71 and 103-117.

78. Winthrop, WP II, 295.

79. Winthrop, WP II, 292-3. Cited in Haskins, 20.

80. Winthrop, WP II, 232.

81. For a general overview of other leaders’ thoughts as to the reason for emigrating to Massachusetts see, Rutman, 3-22. See also Morgan, 34-44 and Ziff, 36-70 for a thorough examination of motivations for Winthrop and Cotton respectively. See also Avihu Zakai, “Theocracy in New England: The Nature and Meaning of the Holy Experiment in the Wilderness,” Journal of Religious History, 133-151.

82. Bradley Chapin, Criminal Justice in Colonial America, 1606-1660 (Athens: University of Georgia Press, 1983), 5.

83. Haskins, 7.

84. Winthrop, WP IV, 477.

85. An example of this is their regulation of the sale of alcohol: they did this for the express reason of obeying the Bible’s proscription on drunkenness. See Laws and Liberties, 29-31.

86. Laws and Liberties, 45.