Witches, Wife Beaters, and Whores

Common Law and Common Folk in Early America

Elaine Forman Crane

• Publisher: Cornell University Press
• Year: 2011
• ISBN:
  9780801462740
• Topic: History
• Subtopic: Early American History
• Index: History

The early American legal system permeated the lives of colonists and reflected their sense of what was right and wrong, honorable and dishonorable, moral and immoral. In a compelling book full of the extraordinary stories of ordinary people, Elaine Forman Crane reveals the ways in which early Americans clashed with or conformed to the social norms established by the law. As trials throughout the country reveal, alleged malefactors such as witches, wife beaters, and whores, as well as debtors, rapists, and fornicators, were as much a part of the social landscape as farmers, merchants, and ministers. Ordinary people "made" law by establishing and enforcing informal rules of conduct. Codified by a handshake or over a mug of ale, such agreements became custom and custom became "law." Furthermore, by submitting to formal laws initiated from above, common folk legitimized a government that depended on popular consent to rule with authority.

In this book we meet Marretie Joris, a New Amsterdam entrepreneur who sues Gabriel de Haes for calling her a whore; peer cautiously at Christian Stevenson, a Bermudian witch as bad "as any in the world;" and learn that Hannah Dyre feared to be alone with her husband—and subsequently died after a beating. We travel with Comfort Taylor as she crosses Narragansett Bay with Cuff, an enslaved ferry captain, whom she accuses of attempted rape, and watch as Samuel Banister pulls the trigger of a gun that kills the sheriff's deputy who tried to evict Banister from his home. And finally, we consider the promiscuous Marylanders Thomas Harris and Ann Goldsborough, who parented four illegitimate children, ran afoul of inheritance laws, and resolved matters only with the assistance of a ghost. Through the six trials she skillfully reconstructs here, Crane offers a surprising new look at how early American society defined and punished aberrant behavior, even as it defined itself through its legal system.

CHAPTER 1

In Dutch with the Neighbors

Slander “in a well regulated Burghery”

It is difficult to imagine the Manhattan of soaring skyscrapers as New Amsterdam. In the early seventeenth century, trees blanketed the greater part of the island, while hogs and dogs ran wild in the small town clinging to its southern tip. Occasionally, an agile canine would catch a slow-moving hog and chomp on a porcine ear. Less often, a scrawny mutt would bite an even mangier goat to death. Indians, English, and Swedes threatened from all sides, while the well-being of the Dutch colony rested on soldiers who spent as much time drawing knives on each other as on their enemies. Rich and poor alike scandalously and shamefully engaged in “unseasonable drinking,” so that by 1648 “nearly the just fourth of the city of New Amsterdam consist[ed] of brandy shops, tobacco or beer houses.” Complaints of drunken Indians, cheating, fraud, and smuggling followed the excessive consumption of alcoholic beverages. Tavern fights erupted with alarming frequency, and some unlucky patron—like that unfortunate pig—could lose his ear, albeit to a cutlass rather than to a cur.1

If, as estimated, some five hundred men lived in New Amsterdam prior to the devastating Indian wars of the early 1640s, and if those wars considerably reduced that number to one hundred males in 1648, then it is possible the town may have contained no more than a thousand people and 120 houses in 1656. On the other hand, only a building frenzy would account for the 350 houses said to exist by 1660, although the number of dwellings may have been enhanced by the theft of timber, an ongoing problem.2 For reasons of their own, builders also constructed chimneys of wood and roofs of reeds, a combustible combination not outlawed until 1648. Owners and renters chose to preserve the cleanliness of their interiors by disposing of “rubbish, filth, ashes, and dead animals” in the streets.3

Despite their difficulties, however, the inhabitants of New Amsterdam did not seem starved of either food or material goods. Bakers provided bread, butchers prepared meats, fishermen hooked and netted fish, farmers grew vegetables, and traders/spinners/weavers/tailors sold sheets, pillowcases, garments, and stockings to the local populace. A few women wore pearls, but whether the jewelry arrived by ship from Holland, Brazil, Guinea, the West Indies, or courtesy of the indigenous oyster population is unknown. Beaver skins found their way into the local economy as a trading commodity, a component of the local currency, and as wearing apparel. Sewant (or wampum) and tobacco were mediums of exchange as well.

FIGURE 1. New Amsterdam by Arnoldus Montanus (c. 1625–83). First published in 1671, this view shows New Amsterdam in 1651. Bert Twaalfhoven Collection, Fordham University Library, Bronx, New York.

New Amsterdam was ethnically and religiously diverse. Unlike their New England neighbors, who were far more homogeneous, the Dutch in Manhattan rubbed elbows with French, Spanish, Portuguese, Swedish, and English inhabitants on a daily basis. Jews, Catholics, and Baptists established homes there as well. Enslaved Africans contributed to the labor force, and the Dutch maintained an uneasy relationship with the Indians who surrounded—and outnumbered—them. Given this assortment, it is easy to conjure up a baffling babble of languages as people went about their business or paused for a short conversation. It would be too much to say that the Dutch welcomed this diversity, but the inhabitants did coexist surprisingly well, given time and place. Local ordinances played no role in promoting such coexistence; the Dutch West India Company demanded it in the interests of a flourishing trade. If, thousands of miles from Amsterdam, the colonists could claim a small degree of local power, the Dutch West India Company trumped that power with long-distance authority. In turn, the colonists were resigned to using ethnic and religious slurs in an occasional display of one-upsmanship.

The elite governing body of New Amsterdam understood all too well the volatility of the small community and was committed to taming it in the interest of good government. In its early years, theft, violence, and a general immorality among soldiers were “matters of serious consequence,” which could not “be tolerated.” Indeed, “leading a scandalous life” was “highly dangerous” in an “infant Republic.” That they thought of themselves as a republic suggests a desire to emulate the world they left behind; but whether infant republic or trading outpost, no matter—for the next several decades the authorities drove home the same point: physical violence and unbecoming behavior were offenses “not to be tolerated in a well ordered province.” To the end of their half-century rule, burgomasters and schepens (aldermen) attempted to confine the community to people worthy of living “in a well regulated Burghery.”4

Slander was among the many wrongs that needed to be addressed. Thus, the small coterie of settlers was put on notice that “speaking ill of someone” or using “bad and unbecoming language” would not be tolerated “in a well ordered place,” a utopian vision that remained an aspiration rather than a reflection of the current state of affairs. Nevertheless, it was commonly held that “injurious and foul words” undermined authority, ruined reputations, and destroyed honor. Furthermore, as the unruly inhabitants were reminded, such language was “directly contrary to the customs and provisions of the laws.”5

The laws that governed New Amsterdam were the same laws that governed the colony of New Netherland as well as the provinces in the Netherlands. These laws rested on the writings of Hugo Grotius, a legal scholar who, in the course of a much-quoted treatise, defined defamation as “wrongs against honour,” or “the good esteem in which others hold us.”

All persons are liable for defamation who by word of mouth or in writing, in a person’s presence or absence, secretly or openly, make known anything which impairs another’s honour, though what he says be true, except when information is given to the authorities with a view to the punishment of a crime.6

According to Grotius, in order to compensate someone who had been defamed, the person liable for the injury was ordered to admit guilt, pray for forgiveness, declare that the statement was untrue, and confirm that he or she “knows nothing of the person defamed but what is upright and honourable.” If the statement was true but “improperly brought forward,” the defamer was required to declare that he or she acted inappropriately. In addition, character repair demanded compensation, which consisted of “honorable and profitable reparation for the insult—honorable, by acknowledging that he is sorry for having insulted the plaintiff, begging forgiveness of God, Justice and the plaintiff; and profitable by paying a fine,” the amount of which would be determined by the court.7 Reputation and remuneration were inseparable, although awards usually went to the poor or the church rather than to the victim.

The court in New Amsterdam adhered strictly to these guidelines. It did so because disorder was disruptive of good government, and good government required justice. To the Dutch, and to the inhabitants of New Amsterdam who abided by Dutch law, justice was “the foundation of the Republic.” The court consistently equated “a well regulated place” with one “where justice is administered.”8 And the delicate balance between justice and order could only be maintained by emphasizing the community over the individual. In short, it was better that an “evildoer be punished than that a whole country and community suffer through him.” Punishment was a deterrent—“an example to other violent and disorderly persons.” If fines, house arrest, or corporal punishment proved unconvincing, banishment awaited unrepentant transgressors “in order that the few people here in New Netherland may live together in peace.”9

Justice was a priority in the English colonies as well, and they similarly meted out punishment as a deterrent. In both Dutch and English colonies, however, the concept of “justice” was still in a rudimentary stage. Seventeenth-century religious scholars were surely aware of the biblical axiom (embedded in later Anglo-American jurisprudence) that favored the innocent over the guilty. This tenet originated in the book of Genesis and a conversation between Abraham and God in which God, in a surprising twist, deferred to Abraham’s reasoning on the subject. But seventeenth-century magistrates were more concerned about the corruption of a community by an individual, and more fearful of God’s wrath if an evildoer went unpunished. As a result, both Dutch and English authorities in the 1600s ignored the biblical injunction and privileged the group over the individual as they dispensed “justice.” It was left to Enlightenment thinkers to revert to scripture. As William Blackstone concluded in his magnum opus: “the law holds that it is better that ten guilty persons escape, than that one innocent suffer.” Voltaire subscribed to the same principle.10 Thus, eighteenth-century commentators appear to imply that it was better to jeopardize society by freeing a potential recidivist than to punish an individual innocent of wrongdoing.

Before 1647, the director-general of New Netherland and his council oversaw legal disputes and criminal proceedings; between 1647 and 1653 arbitrators assisted them. When municipal government was established in 1653, New Amsterdam instituted a more formal court system as well. The schout (who wore two hats as sheriff and prosecutor), two burgomasters (who acted as co-mayors), and five schepens (the equivalent of aldermen) heard cases on what was roughly a weekly basis.11

Slander prosecutions dotted the calendar from the beginning. Between 1638 and 1649, the court heard approximately 82 cases; settlers brought roughly 129 defamation actions before the authorities between 1653 and 1674.12 In her pathbreaking article on slander in seventeenth-century Maryland, Mary Beth Norton unearthed and analyzed 145 defamation cases during the seventeenth century in a colonywide population that was far larger than the town of New Amsterdam.13 One hundred six of those cases took place between 1654 and 1671, when Maryland law applied fewer restrictions on slander suits than it had in the past—or would in the future. In other words, this study and Norton’s closely parallel each other chronologically, albeit not numerically: 129 cases in New Amsterdam versus 106 in Maryland during the same two decades.14 Marylanders may have been more respectful to each other than New Amsterdammers, or more likely to shrug away speech that impaired their honor. On the other hand, the rural nature of Maryland may have scaled back the contact between people that gave rise to abrasive language.15 Whatever the reasons, residents of New Amsterdam were considerably more thin-skinned when it came to accusations that undermined their reputations.

But the quantity of cases is not the only difference between New Amsterdam and Maryland. Cross-sex slandering was more evident in New Amsterdam than it was in the upper South. The words “rogue” and “knave,” for instance, used interchangeably to mean someone corrupt or underhanded, were hurled at men only by other men in Maryland, but the records reveal nine women verbally accosting men with the same words in New Amsterdam. Adding rascal, cheat, thief, or a general accusation of dishonesty to the list increases that number by five.16 A “despoiler” (who was also a “bloodsucker”) ups the count by one more, making fifteen verbal assaults by women against men out of a total of thirty-nine nonsexual slanders. Clearly, women in New Amsterdam were not as reticent about slandering men as were their southern sisters. Nine men took enough offense at the accusations to respond with defamation suits.17

During the same period (1653–74) in New Amsterdam, twenty-one men accused other men of being rogues, knaves, thieves, and/or scoundrels and villains. Moreover, both men and women employed colorful language to exaggerate their accusations. A man was not only a rogue, but “a rogue of rogues” or a “consummate rogue,” a clear escalation of the charge. He was not just a villain, but a “squint-eyed villain.” Non-sexual slanders by men against men also included such creative expressions as Indian dog, spitterbaard, black pudding, “Dutch pock face,” and devilish Jew, a medley that hints at ethnic and racial equality when it came to meting out slander.18

Unlike in Maryland, no women were defamed as witches in New Amsterdam. This is unsurprising, since persecution of alleged witches in Holland ended at the beginning of the seventeenth century, even as the rest of continental Europe continued to hunt them down.19 At the same time, accusations of theft parallel Norton’s findings: in the eight cases where women were defamed by accusations of theft, six of the defamers were female. Nevertheless, Dutch women were accused of stealing a more diverse assortment of articles than the plain vanilla textiles purloined elsewhere. Pork sausages, livestock, beaver skins, decedents’ estates, gold rings, and tinware were among the items that unaccountably disappeared along with the usual linens.

Sexual slanders also chart differently in New Amsterdam. According to Norton’s table, eleven Maryland women were called whores, with accusers divided among seven men and four women.20 In New Amsterdam, at least twenty-seven women suffered that insult (or words to that effect) between 1653 and 1674, with the slur (or some combination containing the word) being uttered by sixteen men and eleven women.21 Thus, although the male/female ratio of accusers is roughly equivalent in both places, the total number of slander accusations involving the word “whore” was considerably higher in New Amsterdam—and relatively more so considering its smaller population. Ten women in New Amsterdam sued their defamers directly, and of those particular defamers only two were men. Thus, women were more likely to sue other women for sexual insults, which speaks either to the relative importance of female accusations or a hesitation about taking on male defamers.

In New Amsterdam, men were often the objects of sexual slanders as well, the insults mouthed by men in all but two of twelve cases between 1653 and 1674.22 Men were charged with being a cuckold (or a cuckold by implication), a bastard, a bigamist, an adulterer, a whore’s son, or even a “hoore and Burthen’s whore” (a possible reference to a beast of burden).23 In the ten cases where one male defamed another, both plaintiff and defendant were male. In the two remaining cases, a man sued a woman who had acc...

Table of contents

• Acknowledgments
• Introduction
• 1. In Dutch with the Neighbors
• 2. Bermuda Triangle
• 3. “Leave of[f] or Else I Would Cry Out Murder”
• 4. Cold Comfort
• 5. He Would “Shoot him upon the Spott”
• 6. A Ghost Story
• Epilogue
• Notes