Studies in Legal History

Essex County, 1629-1692

David Thomas Konig

• Publisher: The University of North Carolina Press
• Year: 2004
• ISBN:
  9780807863435
• Topic: Law
• Subtopic: Legal History
• Index: Law

Distinguished by the critical value it assigns to law in Puritan society, this study describes precisely how the Massachusetts legal system differed from England's and how equity and an adapted common law became so useful to ordinary individuals. The author discovers that law gradually replaced religion and communalism as the source of social stability, and he gives a new interpretation to the witchcraft prosecutions of 1692. Originally published 1979. A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

Chapter 1: English Law and Puritan Society

The Legal and Social Foundations of Order, 1629–1640

When the Puritan settlers of Salem gathered to organize the first church of the newly chartered Massachusetts Bay Colony in August 1629, they signed a covenant that they hoped would be their guide “in all causes, as well Ecclesiasticall as Politicall.” Drafted by John Endecott and their minister Samuel Skelton, it declared their goal of establishing a society based on Christian communalism—on mutual “watchfulness and tendernis”—and was typical of covenants to be written for virtually every town and congregation in the early years of the colony.¹ Yet no matter how fervently the Puritan founders wished and strove for a society ruled by such religious confraternity, they discovered that only thirty of the two hundred persons living at the Bay actually signed when it was presented to them. Church members were a minority of a population that included many people unsympathetic to reformed Congregationalism as well as others who had migrated to the New World to escape all types of authority. Among the latter, as Nathaniel Ward described those at Ipswich, were “ill and doubtfull persons” who not only refused to be bound by communal ideals, but who spent their time “in drinking and pilferinge.”²

Communalism—whether drawn from ecclesiastical or secular sources—was thus an ideal of behavior and regulation to which Massachusetts society might aspire, but the colony’s founders recognized that in Massachusetts, no less than in England, it was an ideal that required outside mechanisms of support if it was to assure the stability of their communities.³ Wisely, therefore, they drew upon their English experience to create a system of local government that possessed the powers necessary to impose order and discipline. Their product closely resembled the oligarchical patterns of English county or borough government whose justices of the peace and courts of quarter sessions were of proven effectiveness.

Effective governmental institutions were a preoccupation of early modern England, and especially so among Puritans. Although they opposed the crown’s efforts to force an objectionable religious conformity upon them, they supported and encouraged efforts to bring stability to a disordered society.⁴ To one contemporary observer, English communities seemed beset by thieves, drunkards, “common hedge-breakers, common peace-breakers, raylers, and sowers of discord between neighbours, keepers or haunters of baudy houses, common scolds,” and the ubiquitous vagabond. The wandering poor were most worrisome, for the enclosure of common fields had dispossessed thousands and produced a population of menacing “sturdy Beggars” who streamed into London or wandered about the countryside. Many of these “night-walkers and day-sleepers” turned to crime as a way of life, and their numerous illegitimate offspring were a heavy drain on local institutions of relief. Seventeenth-century English thought was conditioned by these realities and was, not surprisingly, pervaded by fear of crime and anxiety about social instability.⁵

Vast economic and demographic changes had produced these symptoms, but Puritans attributed them to the innate depravity of the human personality. “We know,” wrote Calvin, “that man is of so perverse and crooked a nature, that everyone would scratch out his neighbor’s eyes if there were no bridle to hold them in.”⁶ The “bridle,” such that it was translated into governmental institutions, was to be wielded by the elect —that is, by those who had been redeemed by God’s grace. Indeed, the elect were under an obligation to impose restraint upon the unregenerate. John Winthrop, who had been named governor of the colony a few months before sailing to the New World in March 1630, was not self-serving when in mid-Atlantic he lectured his fellow emigrants on the “charity” involved in enforcing discipline among the unredeemed. Winthrop’s subject was the “love” that bound a society together and through which man acted “to manifest the worke of [God’s] Spirit.” But the seventeenth-century Puritan concept of Christian love differed from the benign concept that would govern nineteenth-century democratic and egalitarian utopias. While many of the latter—products of a post-Enlightenment culture—presupposed man’s equality and goodness, Winthrop and the Massachusetts Puritans distrusted man’s nature. They saw the need, as an act of love, to rescue it from sinfulness. Winthrop was stating the generally accepted view of society when he said that there always would be people “highe and eminent in power and dignitie.” It was these people, he submitted, who had an obligation to be the stewards of society, and one of their responsibilities—in fact, the one he listed first—was “upon the wicked in moderateing and restraineing them.”⁷

The task of “moderateing and restraineing” the unregenerate would require every tool available to the Puritans. Ecclesiastical discipline was one method, but it was recognized that true reformation required that Puritans “adjoyne the sword to defend the word” of Scripture and reformation.⁸ As one Lancashire minister said, directing his remarks to that county’s justices of the peace, “Ministers are the mouth of the Church, [and] where we see abuses ... we may ondly reprove and complaine. You have power to correct. A mutual help may worke a better reformation.” It is noteworthy that this plea was directed to the justices of the peace, for it was upon them that the Puritan reformers placed their hopes for the reformation of society. Why was that so? The English legal system during the Tudor and Stuart periods was vast and complex, a system of overlapping and sometimes conflicting jurisdictions that ranged from the central courts at Westminster to the wide variety of manor and village courts. Similarly, the social and economic conditions of early-seventeenth-century England were heterogeneous and varied. Yet Puritan reformers— clerical and secular alike—emphasized the role of the justice of the peace, for it, above all other local legal institutions, had weathered the effects of social and political change and had demonstrated a power and a flexibility lacking in the others.⁹ In spite of the symbolic value of the feudal and communal institutions, Puritan leaders placed great responsibility on the justice of the peace. The reasons for this increasing reliance are worth examining in detail.

Over the preceding centuries, many legal institutions that once had had the primary responsibility for resolving conflict or controlling disorder had sunk slowly into insignificance. The Tudors, for example, had sought to eliminate all vestiges of the feudal order that might challenge their control of the state, and they gradually reduced the power of the old sheriff’s tourn. At one time the most important instrument of social control and local administration, by the mid-fifteenth century the tourn had lost to the justices of the peace much of its power to hear and determine cases; by the end of the Tudor period it had declined still further, to the point that it was rarely the agent of “even the most elementary police tasks.”¹⁰

But Tudor political opposition was hardly necessary to cause the decline of many other institutions, as the steady process of social change eroded the power of local courts that had been available for hundreds of years. These were the manorial courts leet and baron, as well as institutions of the village, hundred, and county. All were products of the Middle Ages and had relied on community pressures to be effective. Though Tudor policy did not destroy the local courts, social and economic change reduced the force of the pressures that had guaranteed their efficacy. To be sure, there were backwaters in the varied English social and legal geography where the relatively stable, interdependent community retained its full powers, but its greatest decline had occurred in areas where Puritanism—partly in reaction—was most influential. The strength of these courts had been the ideal of unanimity that governed the medieval manor. In conformity to the needs of common field husbandry, decisions had to be collective. Tenants had to decide which crops to plant in the field where their individual strips of land lay or which part of it should be left fallow; these were collective decisions that, once made, had to be recognized by all. Similarly, the tenants acted in a body to discharge their obligations to the lord, such as yoking their oxen together to plow his demesne. Repeatedly working in proximity with each other, they were neighbors who had known each other all their lives and were aware of whatever happened in their community.¹¹ Manorial institutions reflected this familiarity and collective effort in their procedures. Attendance at the manorial courts was mandatory for all tenants, both to confer legitimacy on their decisions and to bring forward all persons who could contribute information and guide them.

Theoretically, the courts leet and baron were distinct bodies, but in practice they were often combined. Leet jurisdiction was concerned with public nuisances and “evill members, and persons of ill behaviours that are dangerous to their neighbours.” The lord’s steward sat there as judge, presiding over a “presentment jury” elected from among those in attendance.¹² This body combined the functions of discovery, indictment, trial, and sentencing. Though some manors empaneled two juries—a grand jury for indictment and a petit or traverse jury for trial—most empowered a single group to perform all of these tasks. Once a presentment was made by a unanimous jury, explained a seventeenth-century treatise, “it is said to be as Gospell, and no Traverse lyeth to it, but in some speciall case, as when it doth concern freehold.” After these jurors had accused and convicted, they then set the penalty. This amercement or fine was set by “afferers,” who might be the entire jury or a few chosen from among them.¹³

Like the court leet, the court baron had been established to make justice available to villeins “at their own doors.” Its purpose was not to “enquire of any offence against the State,” but rather “to take care and inquire of causes concerning the Mannor,” and it handled matters pertaining to the lord’s own rights as well as to disputes among his tenants.¹⁴ The court baron was truly an instrument of, by, and for a manor’s residents, for the steward presided only on matters concerning the lord’s rights or conveyance of freehold among copyholders. In all other cases, this court was conducted by twelve “suitors” chosen from the manor; they alone decided disputes over refusals to keep promises or pay debts, up to the value of forty shillings. When manorial management required it, they might make bylaws for the regulation of manorial business and set penalties for the violation of these laws.¹⁵

Although suitors of the court baron had little legal expertise and lacked the authority of the lord’s steward to enforce their decisions, they possessed other strengths. For example, the weight of tradition was a guide to the rules that should be followed. In addition, their process of making decisions, like that of the leet, drew heavily upon the community’s acquaintance with the parties. If, for instance, a man were accused of taking another’s livestock as his own, he might bring to court a dozen neighbors to attest to his honesty; their “oath helping,” or “wager of law,” was sufficient to acquit him of the demand. This system worked well in a society in which a community trusted the knowledge a man’s closest acquaintances had of him and in which patently false swearing would be uncovered sooner or later.¹⁶

The medieval manorial courts therefore rested mainly, but not exclusively, on the community itself to be effective—for bringing actions, making decisions, and finally for enforcing their orders. Enforcement was the crucial element in the structure of local justice, and it was at that point that the ideal of unanimity was only as effective as the seigneurial power available to support it when challenged or defied. This was also true of the communal courts of the villages, which were instruments of regulation for social units that included more than one manor. Particularly in East Anglia, many “village communes” co...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Author’s Note
• Chapter 1: English Law and Puritan Society
• Chapter 2: Real Property Litigation
• Chapter 3: Outsiders and Subgroups
• Chapter 4: From Communalism to Litigation
• Chapter 5: The Court and the Community
• Chapter 6: Challenges to the Law
• Chapter 7: Law, Magic, and Disorder
• Chapter 8: Epilogue
• Bibliography
• Index