An anatomy of tyranny: some groundwork for going forward

The following is an excerpt from my Intro to God’s Law and Government in America (also available in Kindle). There is serious, weighty, and detailed history of jurisprudence in here. It may not be easy to work through at first, but it is necessary groundwork for what lies ahead of us. Anyone interested in freedom in America, particularly religious freedom, and especially Restoring America, absolutely must read this material and come to grips with the issues and distinctions involved. It is absolutely crucial to the work we have to do moving forward.

It is also, however, going to push several people into uncharted, and thus perhaps uncomfortable, intellectual territory. The distinctions in legal systems and court procedures, when their implications are understood, will challenge deeply-held views of social and criminal justice as well as policing. It will also, however, be enlightening and motivating in regard to certain aspects of our present tyranny, particularly that which exercises such power over families. Either way, if we are to regain the liberties once established by our forefathers, as well as those entailed but not even envisioned by them, it will be necessary to tip some sacred cows and demolish some intellectual and cultural idols. The alternative is the very type of tyranny for which the Puritan forefathers fled England at the time, only in a purely secularized, refined, and highly potent version—a police-state system I am terming “The Modern Inquisition.”

A lawyer friend of mine proofread this intro when I first wrote it and said it was as important as Berman’s intro to Law and Revolution. That shocked me at the time, but she is right. I don’t say that to toot my own horn or at all to put myself on Berman’s level, but in regard to the importance of the material itself, it is absolutely correct. I will be publishing more on these topics in the future, directing you to other important resources on it.

As I said, this is difficult but crucial material. This article is long, and even what is here is only half of the whole Introduction. You need to read it all, just to get the groundwork to understand where we have come from, where we are at, and where we must go. Please take your time, read this carefully and as many times as necessary. The future of your, and your children’s, and many, many vulnerable people’s freedom depends on it.

***

Tyranny through the Courts

One of the enduring political trends that crossed both civil and ecclesiastical realms was that of jurisdictional and court powers. The New England ministers were the heirs of opponents of the ecclesiastical court system. These “bawdy courts,” as one early opponent called them, derived from the Roman Catholic inquisitorial tradition. They had especially tyrannized Protestants since the dawn of the Reformation, and had grown into a massive revenue machine for the high churchmen and the crony lawyers who had attached themselves to it.

It is difficult to overstate just how intrusive and tyrannical these courts were for the average person. The ecclesiastical courts had jurisdiction over nearly every area of life: marriages, wills, probate, tithes, inheritance of land, alimony, debt, trespasses, defamations, Sabbaths, church attendance, and more. They had the power to sequester property, impose fines, beatings, torture, imprisonment, maiming, and virtually every other punishment short of the death penalty and dismemberment. They also maintained control of licensing and fees in certain areas, for example, printing (censorship) and medical practice.[1] These courts were not common law courts, but administrative “prerogative courts”[2]—meaning they sat to enforce the prerogative of the bishops’ (or on the secular side, the king’s) whims and regulations. Thus they proceeded without a jury, and defendants could be charged upon rumors or gossip, as long as the officials in charge decided to press the case. Procedure, as we will see below, was just as arbitrary, including the fact that cases were conducted in Latin so that the common folk could not have participated in the system even if it favored them to do so.

The church courts in this way were thus constantly harassing individuals for minor issues. They interfered in commerce and credit. They imposed punishments for working on Saints’ Days or for missing church. In one case a parson was fined for acting as a midwife without a license. They mandated segregation of men and women during church services, and a man was fined for sitting in the same pew as his wife. Another was fined for wearing a dirty ruff.[3] Critics pointed out that the Court of High Commission—the supreme ecclesiastical venue—punished laymen for criticizing clergymen “though the thing spoken be true,” incited women against their husbands, sent agents to break into houses, and proceeded arbitrarily with no predictable rules of law.[4]

On top of the miserable annoyance and harassment, the system turned into outright theft and corruption. Bishops had their own police who had little scruple about invading people’s lives and hauling them before the courts for countless offenses. The officers, agents, canon lawyers, and bishops themselves profited highly from the system. Estimates determined that by 1641, there were between 10,000 and 22,000 such parasites connected with the church courts, sucking the public dry to the tune of 200,000 pounds per annum.[5] This, in a day when a single British pound represented roughly a month’s wages for a typical day laborer. Soon it was both fact and public perception that the system was little more than one big revenue-generating machine. Several anecdotes reveal this acknowledgment and discontent. Some of these come from comments made openly in the court, such as one gentleman who condemned it saying, “The judge will find faults enough for money.”[6]

To compound the tyranny, even those acquitted of any wrongdoing faced extortion in the form of court costs—to be paid under threat of excommunication. Examples of such costs ran from three-quarters to a full month’s wages in different cases—again, just to receive a certificate of acquittal! Over time, the fees were gradually raised. When protested, bishops responded that the hikes were necessary because the value of the pound had fallen and they needed the extra revenue to pay the judges and lawyers who worked for them! The hikes lasted decades and withstood attempts of Parliament to reduce them. In fact, when the House of Commons introduced a bill in 1621 merely to publish the table of rates in English—so the people could more widely understand what the courts were doing to them—the bill was squashed.[7]

In 1640, an anonymous pamphlet entitled Englands Complaint to Jesus Christ against the Bishops Canons circulated the following assessment:

The best a surest tenure by which every freeborn subject holds the right and property of his goods is the law of the land. But let the subject be brought into one of their ecclesiastical courts … and be his cause ever so just … they will tear a man out of all his estate. . . . And to the end that the civil state may be subservient to the ecclesiastical church, these ecclesiastics have their oar in every boat, and their finger in every pie, where anything may be plucked from the subject…. None can be sure that his goods are his own, when all, and more than all, are taken from him at one censure, and that at the will and pleasure of the board, without any and against all law.[8]

The following year, the famous John Milton popularized similar remarks:

Two leeches they have that still suck and suck the kingdom—their ceremonies and their courts…. For their courts, what a mass of money is drawn from the veins into the ulcers of the kingdom this way; their extortions, their open corruptions, the multitude of hungry and ravenous harpies that swarm about their offices, declare sufficiently…. Their trade being, by the same alchemy that the Pope uses, to extract heaps of gold and silver out of the drossy bullion of the people’s sins.[9]

Needless to say, Puritans fiercely opposed the system and fought to be rid of it. A battle raged and endured throughout the Puritan era and was a chief reason Pilgrims and Puritans fled England. William Bradford, signatory of the Mayflower Compact and often governor of Plymouth (1620–1657), wrote the history of the colony in his time. He cited the corruption of the ecclesiastical system and the court system as the force behind the persecution of the pilgrims, and the cause of their emigration:

The one party of reformers endeavoured to establish the right worship of God and the discipline of Christ in the Church according to the simplicity of the gospel and without the mixture of men’s inventions, and to be ruled by the laws of God’s word dispensed by such officers as Pastors, Teachers, Elders, etc., according to the Scriptures.

The other party,—the episcopal,—under many pretences, endeavoured to maintain the episcopal dignity after the popish manner,—with all its courts, canons, and ceremonies; its livings, revenues, subordinate officers, and other means of upholding their anti-Christian greatness, and of enabling them with lordly and tyrannous power to persecute the poor servants of God. The fight was so bitter, that neither the honour of God, the persecution to which both parties were subjected, nor the mediation of Mr. Calvin and other worthies, could prevail with the episcopal party. They proceeded by all means to disturb the peace of this poor persecuted church of dissenters, even so far as to accuse (very unjustly and ungodly, yet prelate-like) some of its chief members with rebellion and high-treason against the Emperor, and other such crimes. . . .

When by the zeal of some godly preachers, and God’s blessing on their labours, many in the North of England and other parts become enlightened by the word of God and had their ignorance and sins discovered to them, and began by His grace to reform their lives and pay heed to their ways, the work of God was no sooner manifest in them than they were scorned by the profane multitude, and their ministers were compelled to subscribe or be silent, and the poor people were persecuted with apparators and pursuants[10] and the commissary courts. Nevertheless, they bore it all for several years in patience, until by the increase of their troubles they began to see further into things by the light of the word of God. They realized not only that these base ceremonies were unlawful, but also that the tyrannous power of the prelates ought not to be submitted to, since it was contrary to the freedom of the gospel and would burden men’s consciences and thus profane the worship of God.[11]

As [Nathaniel] Appleton [see the book] preached, over a century after the first arrivals in America, the colonists still highly suspected the tentacles of Roman Catholicism—in regard to church practice and doctrine, of course, but also in regard to jurisprudence. American liberty was exclusively a product of, and inseparably bound to, Protestantism, particularly Puritanism, in the New England mind. Thus, encroachments of nations founded on Roman Catholic models—France and Spain—were taken very seriously in North America indeed (thus King George’s War was not a difficult sell for the Massachusetts people). However, ideological and religious encroachments from within were just as great a danger, if not greater, than outside rivals. Knowing the history of the Anglican church and crown to impose these wicked and unbiblical court systems just as readily and harshly as Catholics did elsewhere, New England Puritans took this issue very seriously, and would fight to maintain as much control as possible over their provincial leaders—appointed by the crown or not.

This issue arises in Appleton’s sermon when he objects to the Assembly, on the grounds of “the divine law,” regarding “the laws that require men to purge themselves by their oaths.”[12] Here he is referring to a class of legal procedures derived from the Roman tradition and which were central to the tyrannies of those court systems, and the issue here relates directly to the development of our Constitution’s Fifth Amendment—the protection against self-incrimination. The inquisitorial procedures to which Appleton alludes included “compurgation,” also called “wager of law,” and another famously used against Puritans and dissenters in England, “ex officio oaths.”

Purging the Oaths

Neither of these systems regarded an accused party as innocent until proven guilty as decided by a jury. Rather, defendants were considered guilty until they proved their innocence by swearing oaths. Under the system of compurgation, the accused could only “purge” himself of guilt of the charges by having a number of neighbors or kin, usually eleven or twelve, also swear that they believed the truth of the oath which he swore. The practice was officially abolished for criminal cases very early, in 1164, but persisted widely in civil courts for suits regarding debts, etc., and also in ecclesiastical courts, until the mid-seventeenth century. The practice devolved historically into swearing matches between conflicting parties. Eventually, a class of professional “compurgators,” known on the street as “oath helpers,” arose as witnesses for hire. They hung around the courts and by legend advertised themselves by tufts of straw in their shoes—the original “straw man.”[13] Since there were no penalties for (or procedure for determining) false oaths, the system grew as corrupt as it was inefficient. Looking back on the system from 1769, the great commentator on English jurisprudence, William Blackstone, referred to it as the “scandalous prostitution of oaths.”[14]

Appleton is quick to refute how some people defended this practice by appealing to biblical law (Ex. 22:10). Blackstone himself would, twenty-six years later, trace the practice to this biblical source.[15] But Appleton’s point is to show this view mistaken, for the biblical law regarded a different principle, not compurgation.[16] On their conclusion and criticism of the system, however, the minister and the later giant would agree that the procedure would, in Blackstone’s words, “reduce the defendant, in case he is in the wrong, to the dilemma of either confession or perjury.”[17]

“Ex officio oaths” were based upon the same principles: assumed guilt until innocence was “proved” by swearing an oath to the contrary. The inequity was compounded by the fact that the oath was imposed before any charges were read and without knowledge of what questions would be asked—and any could be asked, whether relevant to the case or not. This, of course, lent itself to fine fishing expeditions in efforts to root out religious dissenters. Once under oath, the poor defendant was required to answer all questions, in writing, and without legal counsel.[18]

This practice had a history even nearer to the Puritans’ cause because it had featured as a tool to prosecute religious dissenters in the English ecclesiastical Court of High Commission and the crown’s equivalent, the infamous Star Chamber. Bishop Whitgift had fiercely defended the institution because the Bishops by themselves did not have the power to torture, but the High Commission did.[19] A person could be charged with any of numerable offenses against church or state. Once in court, they were forced to swear the oath and then be interrogated arbitrarily. If they refused this oath—in essence, if they wished to remain silent—it could be taken as evidence of their guilt, or they could be left in prison indefinitely.[20]

Historically there had been many opponents of such oaths, but perhaps the most famous incident came in the case of the radical Puritan John Lilburne. “Freeborn John,” as he was called, was hauled into the Star Chamber for engaging in unlicensed printing. The Court of High Commission had full control and censorship over all publishing. Lilburne had violated its sensibilities by printing anti-Episcopal literature. Once arrested and in the Star Chamber, Lilburne refused the oath. He was sentenced with the enormous fine of 500 pounds, whipped, and dragged to the pillory. When he would not stop preaching from the pillory, he was gagged. Eventually, he was removed to a miserable solitary confinement in prison, shackled continuously hand and foot. He was only finally freed when Puritans gained control of Parliament in 1640 and demanded his release.

Lilburne was not alone. The ex officio oath had been used broadly to attack religious dissenters in general:

[T]he Courts of Star Chamber and High Commission used it to root out religious dissidents. Suspects would be brought to court and required to answer under oath what they really thought about the official Anglican religion. Those who refused to answer under oath were deemed guilty and punished. Since these courts were royal prerogative courts apart from common-law courts, there was no right to a jury trial. Lying to the court in such cases was not a viable option for persons with sincere religious convictions. An oath called upon God to witness the truth of what was said, and not to speak truly meant risking eternal damnation. The oath was a powerful inquisitorial device in the hands of the state and was regarded by its critics as the moral equivalent of torture.[21]

The folly of these inquisitorial courts was widely known and condemned. Historian Christopher Hill notes the common acknowledgment that trials by oath are counterproductive because criminals would hardly mind swearing a false oath on top of their crime: “the oath was only valuable to conscientious offenders. . . . Real criminals would presumably not stick at a little perjury.”[22] Meanwhile, witnesses as highly profiled as Thomas Cartwright, Francis Bacon, and Edward Coke had undergirded the common law right to remain silent. This gave Puritan opponents more than the ammunition they needed to condemn these Court methods. In the words of Cartwright, oaths were required “neither by the laws of God nor man.”[23]

The abolition of such Courts was brief, however, during the Puritan ascendancy. When Charles II returned in 1660, the Courts were revived. Although the resurrected versions were not as powerful as before, they still existed. As long as ecclesiastical courts and episcopal, or Catholic, monarchs remained, the threat remained for the colonies.

Nevertheless, it never truly escalated beyond a threat. Neither compurgation nor ex officio oaths were practiced in the Colonies.[24] What could account for Appleton singling out this issue in 1742? McManus and Helfman note that “English Puritans who had direct experience with the oath brought their hatred of it to New England.”[25] When Governor Winthrop even carelessly used the phrase ex officio for a case of alleged sedition, though he said he meant it in an entirely different and innocuous manner, public outrage forced the clarification. The court’s decision four years later included an express prohibition on the use of ex officio oaths.[26] A couple years later, Bradford’s history of Plymouth recalls, advice received from ministers regarding certain capital crimes shows the establishment held the message dear, too. Examples contain explicit denunciations of ex officio procedure as inapplicable, one warning “it is not safe, nor warranted by God’s word. . . .”[27] It was not any impending measure, therefore, it would seem, any more than traditional suspicion still alive among the heirs of the Puritan fathers that led Appleton to remind the Assembly of his day against inquisitorial procedure—a feared and loathed icon of “popery.”

It is no wonder, then, that we find the exact same themes exercising the more famous of the colonial figures throughout their lives. The old threat had never died—either in the civil realm, or even totally in the ecclesiastical realm. Thus, an aging John Adams recalled in a letter to Jedidiah Morse:

Where is the man to be found at this day, when we see Methodistical bishops, bishops of the church of England, and bishops, archbishops, and Jesuits of the church of Rome, with indifference, who will believe that the apprehension of Episcopacy contributed fifty years ago, as much as any other cause, to arouse the attention, not only of the inquiring mind, but of the common people, and urge them to close thinking on the constitutional authority of parliament over the colonies? This, nevertheless, was a fact as certain as any in the history of North America. The objection was not merely to the office of a bishop, though even that was dreaded, but to the authority of parliament, on which it must be founded. The reasoning was this. . . [I]f parliament can erect dioceses and appoint bishops, they may introduce the whole hierarchy, establish tithes, forbid marriages and funerals, establish religions, forbid dissenters, make schism heresy, impose penalties extending to life and limb as well as to liberty and property.[28]

This was certainly consistent with Adams’s early publications provoked by the Stamp Act. In his Dissertation on Canon and Feudal Law, he breathed fire against these systems:

Since the promulgation of Christianity, the two greatest systems of tyranny that have sprung from this original, are the canon and the feudal law. . . .

By the former of these, the most refined, sublime, extensive, and astonishing constitution of policy that ever was conceived by the mind of man was framed by the Romish clergy for the aggrandisement of their own order.[29]

By the latter, Adams added, “the common people were held together in herds and clans in a state of servile dependence on their lords, bound, even by the tenure of their lands, to follow them, whenever they commanded, to their wars, and in a state of total ignorance of every thing divine and human, excepting the use of arms and the culture of their lands.”[30] But neither of these was as wicked as when they combined together. Adams continues:

But another event still more calamitous to human liberty, was a wicked confederacy between the two systems of tyranny above described. It seems to have been even stipulated between them, that the temporal grandees should contribute every thing in their power to maintain the ascendency of the priesthood, and that the spiritual grandees in their turn, should employ their ascendency over the consciences of the people, in impressing on their minds a blind, implicit obedience to civil magistracy.[31]

It was only when “God in his benign providence raised up the champions who began and conducted the Reformation”[32] that these powers began to be challenged and overcome. And since America had been established by the heirs of these champions, and had by the Appleton’s time (Adams’s boyhood) come to exemplify the best fruits of that Reformation, the reader can certainly understand why the particular issue of “popery” in regard to courts and jurisdictions was so central to the fears of our ministers and civic leaders.

Vice Admiralty Courts

After the Seven Years’ War (French and Indian War), King George had moved to pay off his national war debts by increasing taxation in the colonies. The Stamp Act was part of this, and was mentioned by Adams at the end of his Dissertation as evidence that the crown intended to reduce the colonies to feudal slavery. What is usually less discussed is the prior Sugar Act, or American Revenue Act, which was the first to explicitly state that its purpose was not merely to regulate trade but to raise revenue. Toward this end, the Act established a vice admiralty court in Halifax, Nova Scotia, for the purpose of cracking down on alleged smugglers evading customs. The vice-admiralty courts were modeled upon the same Roman Civil system: they allowed no right to jury trial and they presumed guilt.

Vice-admiralty courts had been used frequently throughout the British Empire since the beginning of the Puritan era though not without resentment, for example, in Massachusetts as early as the 1690s.[33] In general, merchant classes approved of their efficiency for particular types of cases, but common law courts historically reserved the right to prohibit individual cases in admiralty. This led to a centuries-long struggle between the two courts within the British system, especially as trade increased and the crown gradually attempted to expend the admiralty jurisdictions. But when the crown began to use them as tools of usurpation of the colonists’ rights, the backlash followed.

The American Act [Sugar Act] of 1764 put a wholly new coloration on this phase of the vice admiralty’s business, and marks the beginning of serious colonial opposition to the British system of administration and customs control. The Act not only was the first measure designed primarily to raise revenue rather than to regulate commerce, but it clarified the jurisdictional situation by making clear that violations of it and of all the Acts of Trade could be prosecuted in the vice admiralty courts.[34]

The issue of our legal system arises in the second of our three sermons as well. James Dana speaks as if he has just read Adams’s sentiments regarding the combination of the ecclesiastical and civil systems:

Whether civil or religious usurpation hath been greatest is difficult to say. Tyrannical rulers have generally favored the views of tyrannical ecclesiastics, in return for the services these have rendered them. Together they have deluged the earth in blood. A better reason cannot probably be given for the late establishment of popery by a British parliament, while the protestant religion, founded in principles of liberty, is barely tolerated.[35]

Speaking this in 1779, Dana was probably not referring to the earlier Sugar Act, but more likely to the more recent Quebec Act (1774). After the Boston Tea Party, Parliament had passed four punitive Acts which came to be known as the “Intolerable Acts” in the colonies. These blockaded the port of Boston, overtook the government of Massachusetts (in theory), required the quartering of British soldiers in people’s homes, and removed certain court trials to England (making defense difficult if not impossible for many colonists). The admiralty issue just described compounded the colonists’ anger with these Acts. But the Quebec Act added even further objectionable measures.

With the Quebec Act (or British North American Act), the crown took the additional step of resurrecting the ecclesiastical courts issue as well. The Act was bad enough in that it enlarged the Province of Quebec at the expense of lands already chartered to the U.S. colonies. On top of this, however, was the establishment of state-enforced tithing for the Roman Catholic Church, the reallowance of Jesuit missionaries, and most importantly for our purposes, the reintroduction of French civil law courts—a classic instance of that old Roman civil system which the Puritans had come to North America to avoid.

This reestablishment of both ecclesiastical and civil law courts Dana condemned as the legacy that had already deluged the earth in blood. And we can understand that he certainly expressed the sentiments of most of the colonists. It was feared that this Act foreshadowed what George III would not hesitate to do in the American colonies as well. Indeed, only a couple years later, this grievance was enshrined in Jefferson’s list in the Declaration of Independence:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies. . . .

The “free System of English Laws” was common law in which jury trials and presumption of innocence ruled. “Arbitrary government” refers to what our preachers called “popery”—the old Roman systems. The “neighbouring Province” refers of course to Quebec, and the fear that this was a model and platform from which to impose the same in the American colonies is clear.

Manslaughter

The legal system issue arises finally in our third sermon as well. Samuel Langdon finds that popery had invaded the substance of the law itself. Speaking of the Mosaic judicial laws, “by the far the greater part” of which “were founded on the plain immutable principles of reason, justice, and social virtue, such as are always necessary for civil society,” he comes to the law against murder. He comments:

In particular, murder stands foremost among capital crimes, and is defined with such precision, and so clearly distinguished from all cases of accidental and undesigned killing, that the innocent were in no danger of punishment, and the guilty could not escape. And if we still pay regard to this divine law, which is evidently founded on reason and justice, the modern distinction of manslaughter must be rejected as a popish invention, contrived and added in times when superstition reigned and claimed a power above all laws.[36]

While this may sound a bit backwards to us today—why, after all, would distinguishing “manslaughter” from murder be associated with popish “superstition”?—it actually had a fairly long history directly related to the clash between the Puritan desire for biblical law (which Dana presses) and the same old foe of the Roman-style ecclesiastical-civil law complex.

Note that this objection arises for Langdon in the midst of a discussion of biblical law. Mosaic judicial law distinguishes between accidental killings (in which the party remains innocent of murder), and at-fault killings which may occur in various forms. At-fault homicides—whether through malice or negligence—were treated essentially the same.

In the civil law tradition, however, two major differences had been introduced—one tied to the law itself, the other tied to the privilege obtained by the ecclesiastical courts. First, a distinction was introduced between non-accidental homicides that had been premeditated and those that had not. For example, a person who “laid in wait” for his victim, planned his attack, then pounced on him in surprise and killed him will have committed premeditated murder. This would be treated and punished in sharp contrast with a case where two guys got into a fist-fight and one hit the other and killed him.

Under biblical law, these two cases could both be considered murder. Whether you planned the killing or not, it could be regarded as murder without distinction. The only distinction maintained in biblical law was if a killing was purely accidental. This view was held by most of the Puritans that opposed the ecclesiastical-royal court complex in England. This was true from the first flight to America all the way up until, obviously because of Langdon’s objection, the U.S. constitutional ratification era. There was, however, serious interaction, debate, and jurisdictional struggle within that long historical window, 1620—1789.

Second, the Roman tradition carried with it a curiosity purportedly based on Old Testament ceremonial law which had been appropriated originally to protect the Pope’s clergy from prosecution in civil courts. This tradition was called “benefit of clergy.” Over time, in regard to cases of non-premeditated homicide, it came to be applied to greater numbers of people: first, the nobility, then all literate people. As literacy was proved by reading Psalm 51, people began to memorize Scripture for the occasion. Thus the benefit eventually was transferred to all who declared “benefit of clergy.” The central idea of this “benefit” was to have you case removed from a secular court into a church court where the death penalty could not be imposed and penalties could be less harsh. The “benefit” in alleged “manslaughter” cases was the same, and obviously allowed a guilty party to escape the death penalty. “Manslaughter” cases were punished in such instances by a mere branding on the hand.

Puritans, however, saw the obvious injustice in the system—of letting off murderers with a minimal penalty, and creating a class of hypocrites claiming “benefit of clergy.” It was a nothing less than the Roman church being allowed a path to negate God’s law.

The practice was not only opposed in England, but was carried into direct institution in the American colonies. Though the New England colonies had originally founded themselves largely upon the law of Moses, the gradual efforts of the crown to establish control led to new charters and new legal systems by the 1690s. This included the “popish” systems and legal distinctions. Thus, Massachusetts governor Thomas Hutchison argued to a grand jury in 1765:

I don’t know a nation in the world that makes that distinction between murder and manslaughter which the English do. It was not made in this country before the charter 1691 for our forefathers founded their laws upon the law of Moses which makes no such distinction.[37]

Hutchinson was an ardent royalist and supporter of the royal prerogative over colonial courts and law. As such, he was advancing this argument as a criticism of the previous Puritan administrations. Maintaining the English legal distinctions for him meant manifesting the “benignity of English law.”[38]

Other cases show, however, how this “benignity” actually opened the door to broader abuses. In Connecticut, for example, one Daniel Gard killed a man in a fist-fight. The court indicted him for murder, but the jury moved to apply the English legal distinctions for manslaughter. The judges were powerless to overturn this, but not to impose penalties to the highest degree still available. As a result, Gard was sentenced to “symbolic hanging” in which he stood roped in the gallows for an hour. He was then removed and whipped with 39 lashes, then incarcerated until he could pay the costs of his prosecution and commitment.[39]

In colonies more dominated by the Episcopal Church, the “popish” court remedies and benefit of clergy were applied in a wider variety of cases and for a longer period of time. Virginia, for example, formally codified the principle in 1732. Branding of the hand was practiced at least until the late 1790s for “clergyable” felonies, including manslaughter, bigamy, maiming, and grand larceny. Other instances existed, too, but were phased out more quickly. The branding, however, was always subject to addition penalty: “Justices frequently added a whipping or time in the pillory to branding.”[40]

Opponents of the system knew from English history that the loophole for leniency inherent in the system meant that criminals would naturally abuse it. One historian notes just that:

The means was now available to laymen who could read to save themselves from the gallows by having their cases moved to ecclesiastical courts. But the door was also open to wholesale abuse of the system, particularly in view of the fact that common law courts developed in practice the doctrine that all felonies (except treason) were clergyable for the first offense. The possibility that heinous criminals in significant numbers could go virtually unpunished and be free to break the law again prodded Parliament to remove from benefit of clergy serious crimes such as murder, rape, arson, burglary, robbery, horse-stealing, and so on.[41]

The fact that the plea had been open for such extreme felonies when under high church influences certainly would have alarmed opponents, even if colonial practice had not gone that far. In Puritan minds—always suspicious of the powers of such courts—that last sentenced would always have ended, “. . . yet.”

Opposition would cling to the view that Mosaic Law maintained the distinctions God desired, and that even in the toughest of cases these could prevail to protect the innocent and convict the guilty. An interesting illustration of this lies in the case of Mercy Brown of Wallingford, Connecticut. Mercy killed her adult son, but the question was raised as to her sanity before the act. She was known to have been “craz’d” and “distracted”—meaning insane.[42] This was the first case in American history of an insanity plea. How the case proceeded, however, in the interesting part.

The jury convicted her of murder, but forestalled sentencing due to the uncertainty of her mental condition. They appealed to the General Court and others in the colony for advice in this difficult circumstance. A well-known royalist minister, Gershom Bulkeley, argued that colonial law (close to biblical law) must be overruled by English law allowing for broader distinctions. Even the modern reviewer comments that “scripture provided little instruction.”[43] He nevertheless also relates what may well have been the deciding factor in ultimately withholding the death penalty. “Among the files of the General Court is preserved a petition submitted by the prisoner’s husband advancing an altogether different argument on her behalf.”[44] That petition appealed not to the English distinctions, but to Mosaic Law:

According to the law of God and the kingdom no person is guilty of murder unless malice premeditated be proved or legally implied…. I humbly Pray therefore that as the laws of God, the laws and statutes of this kingdom, have provided an asylum or place of Refuge for the manslayer who slays not through guile, but God delivers into his or her hand, that so by the wisdom and mercy of this Court such methods may be used in the business before you….[45]

The reviewer, who had already largely dismissed scripture, nevertheless comments on this plea: “The argument is distinctly biblical, advancing for the court’s consideration the texts from Exodus and Numbers dealing with sudden, inexplicable (save to God) but accidental killings. . . .”[46] Considering that this unique type of plea came during the General Court’s period of advice-taking, the reviewer would have us acknowledge its likely influence:

It is not unreasonable to suggest that the Assistants might have found this argument altogether more persuasive than Bulkeley’s assertion that they could not sentence her to death owing to their mishandling of trial procedures or lack of jurisdiction over the felony in the first place. The chief virtue in Samuel Brown’s petition was its assumption that the resolution of the case was yet findable in scripture and, hence, in conformity with the colony’s code of laws.[47]

And this consideration brings us to the most important point upheld within each of these three sermons—and many more like them. That is, the adequacy and application of Mosaic Law for modern societies.

***

For more, order your copy of God’s Law and Government in America (also available in Kindle) to get the whole.

Notes:

[1] Christopher Hill, Society and Puritanism in Pre-Revolutionary England, 2nd Ed. (New York: Schocken Books, 1967), 303, 306.

[2] Cf. Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Harvard University Press, 2006), 306–313.

[3] The frilly-laced collar characteristic of the eras of Elizabeth and James I. For all these points see Hill, Society and Puritanism, 310.

[4] Hill, Society and Puritanism, 350.

[5] Hill, Society and Puritanism, 329.

[6] Hill, Society and Puritanism, 323.

[7] Hill, Society and Puritanism, 308.

[8] Quoted in Hill, Society and Puritanism, 298.

[9] Quoted in Hill, Society and Puritanism, 298–299.

[10] Officers of the ecclesiastical courts.

[11] Harold Paget, ed. Bradford’s History of the Plymouth Settlement, 1608–1650 (New York: E. P. Dutton and Co., 1909), 3–4, 6–7. Cf. Christopher Hill, Society and Puritanism in Pre-Revolutionary England, 2nd Ed. (New York: Schocken Books, 1967), 322.

[12] See p. XXX below.

[13] The “straw man” connection is made by Boston University Law Professor and blogger Ian Pilarczyk, “What Is A ‘Straw Man’?” November 16, 2011,  (accessed January 21, 2015).

[14] William Blackstone, Commentaries on the Laws of England (Chicago and London: University of Chicago Press, [1769] 1979), 4:362.

[15] Blackstone, 3:342.

[16] See pp. XXX below.

[17] Blackstone, 3:342.

[18] Leonard W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (Chicago: Ivan R. Dee, [1968] 1999), 129.

[19] Durham Dunlop, The Church Under the Tudors (London: W. Kent and Co., 1881), 222, 247. Cf. Edward Peters, Inquisition (New York: The Free Press, 1988), 140–141.

[20] Christopher Hill, Society and Puritanism in Pre-Revolutionary England, 2nd Ed. (New York: Schocken Books, 1967), 407.

[21] Edgar J. McManus and Tara Helfman, Liberty and Union: A Constitutional History of the United States, Volume 1 (New York: Routlege, 2014), 21.

[22] Hill, Society and Puritanism, 384–385.

[23] Hill, Society and Puritanism, 401.

[24] Wilbur R. Miller, The Social History of Crime and Punishment in America: An Encyclopedia, 5 vols. (Thousand Oaks, CA: SAGE Publications, Inc., 2012), 5:2002.

[25] Edgar J. McManus and Tara Helfman, Liberty and Union, 21.

[26] Edgar J. McManus and Tara Helfman, Liberty and Union, 21–22.

[27] Massachusetts Historical Society, Collections of the Massachusetts Historical Society, Vol. 3, Ser. 4 (Boston: Little, Brown, and Co., 1856), 390, 396.

[28] Adams to J. Morse, December 2, 1815, in The Works of John Adams, 10 vols., ed. by Charles Francis Adams (Boston: Little, Brown and Co., 1856), 10:185. Adams repeats the sentiments in later letters to Hezekiah Niles, Feb. 13, 1818, and William Tudor, July 9, 1818, in Ibid., 286, 288, 327.

[29] Adams, The Works of John Adams, 3:448.

[30] Adams, 3:450.

[31] Adams, 3:450.

[32] Adams, 3:451.

[33] L. Kivin Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction,” The American Journal of Legal History, 6/3 (Jul. 1962): 258.

[34] L. Kivin Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction,” The American Journal of Legal History, 6/4 (Oct. 1962): 356.

[35] See pp. XXX below.

[36] See p. XXX below.

[37] Quoted in David H. Wrinn, “Manslaughter and Mosaicism in Early Connecticut,” Valparaiso University Law Review 21/2 (Winter 1987): 304.

[38] Quoted in Wrinn, 304.

[39] Wrinn, 309.

[40] Linda Rowe, “The Benefit of Clergy Plea,” (accessed January 28, 2015).

[41] Rowe, “The Benefit of Clergy Plea,”  (accessed January 28, 2015).

[42] See Collections of the Connecticut Historical Society, Vol. 3 (Hartford: Case, Lockwood, and Brainard, Published for the Society, 1895), 229–232.

[43] Wrinn, 314.

[44] Wrinn, 314.

[45] Quoted in Wrinn, 314. I have modernized the spelling and conventions in this quotation.

[46] Wrinn, 314.

[47] Wrinn, 314–315.