Antithesis Magazine V1N1
Puritan Jurisprudence: Progress and Inconsistency by John G. McClendonPuritan Jurisprudence: Progress and Inconsistency by John G. McClendon
American Puritans clearly understood that God’s word applies to all of life. Their exemplary lives and faith, contrary to popular myths, are a highpoint of Christian thinking. Puritan legal history specifies some of their loyalties and compromises.
Scholars and laymen today continue their dispute over the degree to which the Puritan colonists influenced American law, morality, and culture, and whether this influence was for good or ill. Yet on one point, all readily agree: the Puritan appellation entered common parlance on both sides of the Atlantic as a pejorative adjective connoting excessive rigidity and austerity in matters of law and morality. Thus, modern English speakers, in recreating an image of the Puritans from this linguistic legacy, commonly perceive the Puritans as persons all too ready to apply their considerable theological skills to splitting even the finest of ethical hairs, all done with an excess of zeal.
In the area of law, this image is supplemented by lurid accounts of witch trials and corporal, public punishments. But is this image of Puritan jurisprudence accurate?
In the following discussion, I wish to present an overview of the New England Puritan legal history. I will show its historical development was both a consistent outgrowth of Reformation theology and the Puritans’ efforts to apply this theology in the development of a legal system for the New World. Yet, by examining of the way in which the Puritans implemented their legal theory in seventeenth-century New England, I will show that the practice of their legal theory was not always consistent with their theology.
This inconsistency was not due to any internal contradiction inherent in either Puritan theology or the Puritan world view. Rather, this inconsistency resulted when the Puritans ignored the precepts of their own Calvinistic philosophy which posited the ultimacy of the revealed authority of Biblical law and instead uncritically smuggled back into their legal thinking ideas assuming the autonomy and primacy of human reason and thought.
This inconsistency occurred precisely at points where the Puritans failed to allow their theology to shape their legal system completely and instead borrowed from the reigning conventions of English legal tradition and thought. Puritan jurisprudence reached the height of its inconsistency when the Puritans: (1) equivocated between natural law on the one hand and Biblical divine law on the other, (2) conflated the concepts of sin and crime in lawmaking and (3) declared penal sanctions contrary to Biblical mandates, thus vesting judges with autonomous and unbridled discretion.
Modern-day jurisprudes generally assume that Puritan legal theory is nothing more than an interesting historical footnote of no continuing relevance. In my concluding section discussing the legacy of Puritan legal thought, I suggest that this assumption is based upon a complex matrix of historical, environmental and philosophical factors, the substratum of which is ultimately religious. This antipathy to Puritan jurisprudence is the result of a shift in the reigning metaphysical paradigm in America from one that posited, at least in principle, the absolute authority of God’s revealed law in Scripture to one that posits the primacy and infallibility of human reason apart from special revelation.
Puritanism Defined
Attempts to define Puritanism have engendered much scholarly debate. The subtleties of this debate may be surmounted and a workable definition of Puritanism found if the term is examined as an ecclesiastical and as a religious term. As an ecclesiastical term, Puritanism refers to the movement for reform which occurred within the Church of England between the time of the Elizabethan settlement of 1559 and the end of the Rump Parliament with the ascension of Charles II to the British throne in 1660. After 1660, the efforts at ecclesiastical reform by Puritan ministers were finally defeated.
The term “Puritan” itself originated as a term of derision leveled at clergy and laity who wanted to “purify” the Church of England of Roman residues and reform the Church after the model of John Calvin’s Geneva.[1] These reformers were not Separatists (as were the Pilgrims of Plymouth) out to start a new church. Rather, they chose to work within the Church of England to effect their reforms.
As a religious term, however, Puritanism has a broader application, and it is in this sense, that this discussion uses the term. As Eusden notes, “The importance of early seventeenth-century Puritanism does not lie in ecclesiology, doctrinal or organizational. We must look to theology and belief and the attendant pattern of life in order to assess the significance and meaning of the movement.”[2] In the social and political implications of Puritanism as a religious movement, the term denotes the goal of Christians both inside and outside the Church of England to implement a thoroughgoing remaking of society and social institutions according to a consistently Biblical world view. The Puritan movement distinctively sought the ideal of a “holy community” and that community was to be:
….an experiment in Christian living which sought to reconstruct the church and every other institution and facet of life in the light of the world view inherent in their Calvinistic theology. That theology demanded that they look anew at the form and nature of government, the community, the family, and to have reformed attitudes toward work and leisure.[3]
Puritan Legal History
1. New England: A Rare Opportunity for Legal Innovation
Although Puritans attempted to reform England’s laws and legal structure during the Puritan Revolution of 1640-1660, those attempts were largely ineffective due to the political, social and religious dynamics of the period.[4] Cromwell’s pluralist vision of letting “a hundred flowers grow” in the garden of English society left the Puritans merely one group among many competing for the hearts and minds of Englishmen. Consequently, the unharvested wilderness of the New World alone enabled the Puritans to construct de novo their experimental holy community according to Biblical principles.
In the Puritan settlements of New England, the Puritans were at last free to break with the legal conventions of their day and implement a legal system consistent with Biblical law. Thus, the true flowering of Puritan legal thought and the problems it encountered in applying that thought to real-life situations are not found among the English Puritans but among the Puritans of New England.[5] And among the New England settlements, it was the Puritans of Massachusetts Bay Colony who innovatively created the legal codes and standards imitated by the other New World colonies, both Puritan and non-Puritan.[6] For this reason, an overview of this colony’s legal history provides the best understanding of the development of Puritan jurisprudence and the problems it encountered.
2. The Golden Age of Puritan Jurisprudence
Massachusetts Bay Colony began on March 4, 1629, when Charles I, only one week before he was to dissolve his last Parliament, granted a royal charter to the Massachusetts Bay Company. The charter placed all judicial authority in the hands of the governor of the Colony, John Winthrop, the deputy-governor and the stockholders or “freemen” of the Company.[7] Winthrop and the freemen were to exercise this authority by sitting as the Colony’s General Court, which the charter invested with the right:
….to make Lawes and Ordinances for the Good and Welfare of the saide Company and for the Government and ordering of the saide Landes and Plantacon, and the People inhabiting and to inhabite the same, as to them from tyme to tyme shall be thought meete, soe as such Lawes and Ordinances be not contrarie or repugnant to the Lawes and Statuts of this our Realme of England.[8]
In 1630, Winthrop arrived at the Bay with one thousand colonists. However, only ten or eleven of the more than one hundred freemen of the Company actually emigrated to the Colony.[9] This meant that political power was concentrated in the colonies in the hands of roughly a dozen men. This almost immediately created problems. Within a year, Winthrop was forced to broaden the Colony’s political base by admitting most of the Colony’s adult males to freemanship.[10] The freemen of each village were given the right to elect the magistrates which, together with the Governor and Deputy-Governor, comprised the General Court. The Court held both legislative and executive powers and sat as the highest and, until lesser courts were created, only court in the Colony’s judicial system. Sitting as a judicial body, the Court claimed complete discretion to pass whatever judgments and sentences it saw fit. It was from this judicial process that most of the Colony’s substantive and procedural law developed during the first decade.[11]
The freemen strongly objected to the magistrates’ complete discretion in lawmaking and in sentencing. As Seventeenth-century men familiar with the summary and discretionary justice of English Chancery Courts and the Star Chamber, they were intensely aware of their vulnerability before the law without a written code of laws to protect them from arbitrary justice. For this reason they demanded that a written code of law be drafted that would clearly state the laws of the Colony as well as provide a hedge against judicial discretion. The freemen were joined in their demands by many of the Colony’s clergy. “They will be like a Tempest if they be not limited,” said Reverend John Cotton of the magistrates.[12] Reverend Thomas Hooker, in a letter to Winthrop, expressed fears that judicial discretion was “a way which leads directly to tyranny.”[13]
Winthrop and the magistrates opposed the movement for a written code, feeling that it was unnecessary and would unduly limit their benevolent paternalism. Winthrop, who trained as a lawyer at the Inner Court and had served as a justice of the peace in England, was especially hostile to the idea. On theological grounds Winthrop maintained that, since the office of magistrate is divinely instituted, magistrates were “God’s upon the earthe” who could act with complete discretion in each case.[14]
To agree in advance on positive applications would impose an impossible rigidity. God’s will would be defeated on the very attempt to carry it out. Much better to leave the magistrates a free hand. Let them search the Scriptures for the proper rule in each case as it alone arose. The decisions would be recorded, and when a similar case arose in the future, the judges could hark back to it and be guided by it. Through just such precedents the common law of England had arisen.[15]
Winthrop also had a politically strategic reason for opposing a written code. The charter granted to the Colony explicitly forbade the colonists from making any laws contrary to England’s. Winthrop feared that if the colonists drafted and published a written code, such a code might draw England’s attention to the differences between the Colony’s laws and those of England.[16] This could lead to intervention by England in the Colony’s legal system. By keeping the Colony’s laws buried in the precedents of individual court decisions, the divergences from England’s laws would be better hidden and less likely to arouse suspicion.
Under continuing pressure from the freemen and ministers, the General Court appointed a committee of four of its members in 1635 “to frame a body of grounds of laws in resemblance to a Magna Charta,” but nothing was produced.[17] The following year, this same committee, now enlarged to include three members of the clergy–John Cotton, Hugh Peter and Thomas Shepard–again was requested to “make a draught of lawes agreeable to the word of God, which may be the Fundamentalls of this commonwealth, & to present the same to the nexte General Court.”[18] One member of the committee–John Cotton–single-handedly drafted a code and presented it to the Court in October, 1636.[19]
Cotton’s code, Moses His Judicials, was a document of ten chapters and represented a major departure from English common law. “[I]ts heavy reliance upon Scripture provides an important illustration of the strong religious influence which infused Puritan thinking about law and the administration.”[20] The chapters on crime and inheritance were drawn directly from the Scriptures and Scriptural proof texts were provided for sections which recapitulated the existing civil code.[21] Civil and due process rights unknown in the common law but found in Scripture were included in the work. Considering that Cotton had no legal training and was not an officer of the Colony, his code displayed a remarkable understanding of the Colony’s government and existing laws. Although, for reasons that are unclear, this code was never enacted into law, it formed the basis for the codes adopted by the colonies of New Haven and Southampton as well as serving as the prototype for the Codes which were finally adopted by the Colony.
In March, 1638, a third committee was appointed to draft a code. In November, 1639, Nathanial Ward, a member of the committee and the minister of Ipswich, submitted his draft of a code of the General Court. Ward had studied law at the Inn of Lincoln and had worked as a lawyer for ten years in England before emigrating to Massachusetts. His code comprised one hundred sections and drew heavily upon Cotton’s earlier draft; Cotton even provided the scriptural annotations justifying the criminal law and penal sanctions of Ward’s code. Section 65 explicitly set forth this code’s Biblical basis: “No custome or prescription shall ever prevaile amongst us…that can be proved to bee morrallie sinfull by the word of God.”[22]
The section on criminal law especially displayed the influence of Biblical law in its departure from the common law. Crimes which were capital offenses in the Bible–idolatry, witchcraft, blasphemy, murder, bestiality, sodomy, adultery, kidnapping and perjury resulting in the execution of an innocent person –were capital offenses in his code.[23] This was a major departure from English common law, where the number of capital crimes amounted to about fifty during the seventeenth century and rose to well over one hundred in the eighteenth.[24] This code, referred to as The Body of Liberties, was finally accepted by the General Court. The name perhaps is significant: “Viewed as a whole, it resembles a bill of rights of the type which was later to become a familiar feature of American state and federal constitutions.”[25]
Further tinkering and fine-tuning of The Body of Liberties resulted in the production of the Lauues and Libertyes Concerning the Inhabitants of Massachusetts, which served, with minor revisions in 1660 and 1672, as the basis for civil and criminal law in the Colony until the eighteenth century. This code was laid out in the alphabetical form familiar to lawyers of the day and has been described as “a lawyerly piece of work.”[26] Its biblical borrowings and departure from the common law are likewise apparent, as in its prohibition against “inhumane, barbarous or cruel” punishment and the limitation of corporal punishment to no more than forty lashes.[27]
3. The End of the Golden Age
The era of Puritan legal innovation lasted until approximately 1700. Political turmoil at home kept England so preoccupied with her own problems that she was unable to pay much attention to errant colonies abroad. However, occasional attempts were made during this time to bring Massachussetts into line. In 1664 a four-man commission appointed by Charles II arrived in Boston intending to act as a royal court overriding the Colony’s courts. Upon encountering solid resistance from the colonists, the commission abandoned its mission and returned to England.[28]
In August of 1677, the Attorney-General and Solicitor-General of England condemned the laws of the Massachusetts Bay Colony in a work titled Objections to the Laws of New England.[29] In 1684, the Court at Chancery in England annulled the Colony’s charter and, in 1686, James II, in an attempt to tighten his grasp on the recalcitrant colonies, combined New England, New York, and New Jersey into one vice-royalty. The colonists were outraged by this and were glad when James was dethroned in the Glorious Rebellion of 1688. The following year, William and Mary recognized the original colonial charters and, in 1692, granted a new charter to the newly combined colonies of Massachusetts Bay and Plymouth. While admiralty courts and a new court of appeals were set up, nothing was done to alter the local practice of law.[30]
In 1700, England’s Privy Council asked the governors of the American colonies to report on their court procedures. The reports submitted revealed an embarrassing amount of divergence in law between the colonies and from English common law. With political turmoil behind it, England now took actions to regularize the legal systems of the colonies. These actions were largely successful in Massachusetts due to changes that had been occurring within the Colony itself.
The succeeding generations of Puritans lacked the religious fervency of their foreparents. This gradual loss of loyalty to distinctive Puritan tenets led later Puritans to adopt a conventionalism that saw no conflict between English common law and Biblical law. By the Eighteenth century, the commentaries of Blackstone and treatises of Coke had replaced the Bible as the Puritan’s primary source of legal theory.[31]
The Bible: The Source of Puritan Legal Theory
The main distinction of Puritan jurisprudence is its reliance upon the Bible as the source of its laws and principles of adjudication. This is not to say that it did not borrow liberally from the civil and common laws of England. However, even when it borrowed, the imported elements still had to pass Scriptural scrutiny in order to assure they were not contrary to Biblical principles. As heirs of the Protestant Reformation, the Puritans were, in a theological sense, the original proponents of “original intent.” They believed that, since God had spoken authoritatively in Scripture, revealing His will for humanity, Scripture should be the ultimate standard by which all human tradition, knowledge and laws should be judged. Any laws or legal traditions contrary to Scripture were therefore to be repudiated as the products of sinful man and not God. For this reason “[t}hey felt perfectly justified in putting God’s law above all other law.”[32]
The Puritans totally relied upon the authority of Scripture because of the Puritan doctrine of sin. According to this doctrine, the fall of Adam resulted in the distortion of all of man’s attributes including his powers of reason. Thus, man’s rationality, a reflection of the imago Dei, could not be trusted to provide undistorted knowledge. Reason had to be in submission to the Word of God in order to be profitable for guidance.
Stated in this form, Puritan legal theory seems elegantly simple. Yet this very simplicity of form concealed problems. For when the theory was applied to specific situations it became clear that the Puritans had not resolved several underlying problems in their theory: the relationship between civil law, natural law and divine law; and the exegetical question of what constitutes immutable divine law, the range of judicial discretion in sentencing, and a blurring of the distinction between sin and crime. These problems reveal that the Puritans were not completely consistent in their claims that Scripture was the authoritative standard. In these areas, they returned to human wisdom as a standard apart from Scripture.
Civil Law, Natural Law and Divine Moral Law
One tension existing in Puritan jurisprudence was the relationship between civil law, natural law and divine law. Following Calvin, the Puritans rejected the Schoolman’s conception of natural law as a law existing in nature that could be discovered by reason. Natural law was instead “apprehension of the conscience which distinguishes sufficiently between just and unjust, and which deprives men of the excuse of ignorance, while it proves them guilty by their own testimony.”[33] Thus, natural law is a sense of equity and justice placed in the conscience by God that was not wholly lost in the fall, and it is from this sense of equity and justice that the civil laws of all nations are framed. Civil law, then, is grounded in this natural law. This natural law in turn is grounded in and subject to the fuller revelation of the divine moral law revealed in Scripture. So a hierarchical relationship exists between the three types of laws, going from civil law (bottom), to natural law, to divine law (top).
The tension arose over the exegetical question of what laws in the Bible were civil laws and what laws were divine laws. Again following Calvin, the Puritans divided the Mosaic law of the Old Testament into three parts. First, the ceremonial law was concerned with the particularly religious rites of Israel. All Puritans agreed with Calvin that, in interpreting the Old Testament in light of the New, these laws were prefigurements of the work of Christ clearly fulfilled by him and thus no longer obligatory. Second, the moral law, as summarized in the Decalogue, prescribed universal ethical norms. This law all Puritans held to be immutable and therefore permanently binding upon all humanity as the basis of both natural and civil law. Third, the judicial law served as the civil law of Israel and contained the penal sanctions for crimes. Most Puritans agreed with Calvin that civil law varied from age to age and from country to country, and thus the judicial law was relevant only to Israel.[34]
Thus, for example, while the legal codes (civil law) of nations might justifiably disagree with the Mosaic judicial law and amongst themselves on the manner in which murder is to be punished, the internal natural law of equity and justice would compel all to agree that murder is a violation of the moral law, and this violation deserves some form of punishment.
Judicial Discretion and Punishment
The problem with this view can be seen when one realizes that equity and justice run not merely to the notion of what constitutes a crime but also to the proportionality of the punishment meted out in relation to a crime. In order for there to be equity in punishment, no crime can receive a penalty which it does not warrant. Equity will determine what constitutes an appropriate or an excessive, cruel or unusual penal sanction for a particular crime. The Mosaic law, therefore, did not bifurcate between the equity of the crime and the equity of its associated sanction, and indeed this equity of the Mosaic lex talionis has historically been acclaimed as a major advance over the penology of ancient Israel’s neighbors. Thus, since the equity of Scriptural penology cannot be detached from the equity of what Biblical moral law deems a crime, the view that the moral law was still valid while its attendant penalties are not, cannot be sustained exegetically.
This view is also flawed logically. On the one hand, the Puritans held that Scripture was the highest authority. This same Scripture sets forth an authoritative standard of equity and justice in its penal sanctions. On the other hand, the Puritans maintained that natural law was that equity and justice which God placed within the individual’s conscience. There are three problems here. First, how is it that the sense of equity which God provides in the conscience could be different from His equity which He reveals in Scripture? Second, how can one continue to maintain that Scripture is the supreme authority, if the natural law equity resident in the individual’s conscience can sit in judgment of Scriptural equity? Finally, if the natural law sense of equity with regard to punishment can vary significantly from culture to culture, how can the very notion of equity be preserved, since at the heart of that notion is the repudiation of arbitrariness? Significantly, this issue was the subject of debate by two of the finest minds of Massachusetts Bay colony: John Winthrop and John Cotton.
Winthrop, arguing in a recognizably Thomistic vein, but citing Scripture for support, maintained that “law” and “penalty” were totally different concepts; the former was eternal and binding, the latter temporary, and belonging to the magistrate’s discretion. John Cotton, on the other hand, believed that the judicial laws of the Pentateuch, in which God had further elaborated upon the moral laws of the Ten Commandments and had prescribed penalties for their breach, were of a force in civil society equal to that of the laws of the Decalogue.[35]
In this debate, Cotton, the theologian, was more consistent with Calvinist theology than Winthrop the lawyer. Winthrop’s purpose in propounding his view was obvious: he wanted to allow magistrates to individuate punishments according to the criminal and not the crime.[36] This practice is explicitly prohibited in Scripture, however, which demands that punishments be meted out without regard to the person of the criminal.[37]
“Sin” and “Crime”
By allowing judicial discretion in the application of sanctions contrary to those called for in Scripture, Puritan jurisprudence blurred the distinction between sin and crime. Yet maintaining this distinction is critical. From the vantage point of Scripture, all crimes are sins, but not every sin is a crime.[38] A sin is a violation of a commandment of God while a crime is a violation of a law of God that applies to the ordering of society. What distinguishes the two is that, while a sin and a crime both demand a divine penal sanction in order to vouchsafe the righteousness and justice of God, a crime requires a second sanction in order to protect the order and justice of society. This double sanction, then, is what distinguishes a crime from a sin.
As long as Biblical penal sanctions are held to be binding, the difference between sins and crimes is maintained. However, once these penal sanctions are dismissed as no longer relevant, the difference between sins and crimes disappears. When this occurs, all sins become fair game to be declared crimes. This is indeed what happened in the Puritan colonies of New England, as a plethora of laws were passed criminalizing behaviors which were never criminal in Scripture. Drunkenness, idleness, gossiping and many other moral sins were made criminal and a whole range of behaviors previously thought to be punished only by God or, if a church member, subject to church discipline, became subject to civil punishment.
Rather than looking to the Biblical sanctions as imposing an upper limit on the number of sins which were also crimes and therefore subject to judicial punishment, the biblical sanctions, if anything, were viewed as a minimum threshold and a starting point from which additional sins could be criminalized. Inevitably, this led to compromising the functional separations of the state from the church in Puritan society.
The Puritan Legacy
To say that Puritan legal thought left no enduring legacy on American legal thought would be inaccurate. Scholars agree that Puritan legal thought left its mark on American law. But they disagree on whether its influence was positive or negative. On the positive side, Historian C. Gregg Singer points to the influence of Puritan thought on the framing of the Constitution and its strong affirmation of a government of law and not of men.[39] On the negative side, the American jurisprude Roscoe Pound found a Puritan bogeyman lurking behind many of the defects in the legal system of his day.[40] Overall, however, Puritan jurisprudence appears to have quickly vanished as a serious legal theory. What caused its disappearance?
Several reasons account for its disappearance. A change in population dynamics diluted their original Calvinistic consensus when non-Calvinist immigrants arrived in the New World. This created a loss in Puritan political influence. Deism, Arminianism and Enlightenment ideas began chipping away at the foundations of Puritan theology. Calvinism was subjected to relentless ridicule and attack and became a favorite whipping-boy of the intelligentsia during the nineteenth century.[41] Even anti-semitism might have played a part as when, in 1851, a Committee of the General Court of Massachusetts finally discarded the old Puritan legal code, repudiating it as the “Jewish Code.”[42]
Second, part of the fault must be apportioned the Puritans themselves. The famous “Puritan work ethic” brought great wealth to many Puritans.[43] Striving after material riches began to supplant the original striving after spiritual riches and holy community. Wealth also brought respectability, and in grasping this respectability, Puritans dropped their role as prophetic critics of social mores and assumed an easy conventionalism toward them. In philosophy, Puritans allowed their love of reason and logic to subordinate revelation, as, for example, the Cambridge Platonists, who were almost all Puritans.
Underlying all of the explanations for the decline in Puritan influence is a shift in religious paradigms. In each case, the Puritan’s paradigm of the inadequacy of human reason apart from its restoration in Christ and submission to the law of God as revealed in Scripture is replaced by a paradigm that posits the self-sufficiency of human reason apart from revelation. Rather than God being absolute, the Puritans absolutized reason or the state; thus reason or the state became the gods and ultimate authority of the system. This paradigm shift has striking consequences from generation to generation, as one grandson of a Puritan minister, for example, confidently asserted that “The Common Law is not a brooding omnipresence in the sky but the voice of some sovereign or quasi-sovereign.”[44]
Conclusion
From this brief discussion, we can see that the Puritans themselves were not entirely consistent in applying biblical law to the sphere of civil law; neither did they entirely agree when they applied Biblical law to society. As Haskins observes:
Even when they professed and appear to be following God’s word most literally, they were influenced by their English inheritance, intellectual as well as legal, and by pragmatic or expedient considerations growing out of the conditions of settlement, the same kind of eclecticism that was motivated, guided, and made coherent by the distinctive ethic that marked Puritan scholarship generally is clearly apparent in the shaping of Massachusetts law. For all their reverence for the scriptures, the colonists almost never enacted literal bible texts as law before those texts had passed a rigorous logical justification.
The Bible in Massachusetts was an indispensable touchstone, but not the cornerstone of Puritan legal thinking. Central as was its position in Puritan life and thought, it was only one influence among many in a rich cultural heritage which was quickened by the challenge of new problems in a new land.[45]
Yet for a time, the New England Puritans implemented Biblical law into their civil laws to a degree unparalleled at any time in history. Two observations can be made regarding this achievement. First, by adopting Biblical law, the Puritans actually created a criminal code less severe than that of their English contemporaries. Second, it is not in their adherence to Biblical law that Puritans ought to be criticized today. Rather, it is in those laws they promulgated regulating personal dress and behavior which exceeded the scope of Biblical law that has tarnished their legal legacy in the eyes of their posterity.
Notes
[1] Kevan, Ernest, F., The Grace of Law, A Study of Puritan Theology (London: The Carey Kingsgate Press Ltd., 1973), p. 17.
[2] Eusden, John D. Puritans, Lawyers and Politics in Early Seventeenth-Century England, (n.d.: Archan Books, 1968), p. 18.
[3] Elniff, Terrill, I., The Guise of Every Graceless Heart, Human Autonomy in Puritan Thought and Experience, (Vallecito, CA: Ross House Books, 1981), p. 18.
[4] See generally: Prall, Stuart, E., The Agitation for Law Reform During the Puritan Revolution, 1640-1660, (The Hague: Martinus Nijhoff, 1966).
[5] Singer, C. Gregg, A Theological Interpretation of American History. 2nd edition (revised), (Philadelphia: Presbyterian and Reformed Publ. Co., 1964, 1981), p. 9.
[6] Haskins, George, L., Law and Authority in Early Massachusetts, A Study in Tradition and Design, (New York: Macmillan Co., 1960), p. 120.
[7] Hall, David, D., The Faithful Shepard, (Chapel Hill: Univ. of North Carolina Press, 1972), p. 137.
[8] Record of the Governor and Company of Massachusetts Bay, 6 Vol. (ed. N.B. Shurtleff; Boston, 1853-54), Vol. I, p.12.
[9] Haskins, p. 26.
[10] Hall, p. 137.
[11] Haskins, p. 119.
[12] Morgan, Edmund, S., The Puritan Dilemma, The Story of John Winthrop, (Boston: Little, Brown, 1958), p. 164.
[13] Hall, pp. 141, 42.
[14] ibid., p. 138; Haskins, p. 120.
[15] The Puritan Dilemma, p. 168. Apparently, Winthrop did not realize that this same precedential effect of these decisions could in turn operate to “tie the judge’s hands” just as surely as a written code would.
[16] Winthrop journal entry of September, 1639, Winthrop Journal: History of New England (ed. J. K. Hosmer, New York, 1908), 2 Vol., Vol I, pp.323, 324.
[17] Winthrop journal entry of May 6, 1635, Journal, Vol I, p. 151.
[18] Quoted in Haskins, p. 124.
[19] Winthrop journal entry of October, 1636, Journal, Vol. I, p. 196.
[20] Haskins, p. 125.
[21] Bahnsen, Greg, L., “Introduction to John Cotton’s Abstracts of the Laws of New England”, The Journal of Christian Reconstruction, Vol. 5, No. 2, Winter 1978-79, p. 79.
[22] Body of Liberties in Kavenaugh, Keith, W. ed. Foundations of Colonial America: A Documentary History, Vol. 1 (New York: Chelsea House Publishers, 1973).
[23] Body of Liberties, Section 94 “Capitall Lawes.”
[24] The Puritan Dilemma, p. 171.
[25] Law and Authority in Early Massachusetts, p. 129.
[26] Wolford, Thorp, L., “The Laws and Liberties of 1648: The First Code of Laws Enacted and Printed in English America, Boston University Law Review, Vol. 28, Nov. 1948, p. 431.
[27] ibid. p. 446.
[28] Hilkey, Charles, J., “Legal Development in Colonial Massachusetts 1630-1686,” Columbia Universities Studies in History, Economics, and Public Law, Vol. 37, No. 160, 1910, p. 160.
[29] ibid. p.144.
[30] Stoebuck, William, B., “Reception of the English Common Law in the American Colonies,” William and Mary Law Review, Vol. 10, No. 393, Winter 1968, p. 408.
[31] Corwin, Edward, S., “The Higher Law” Background of American Constitutional Law, (Ithaca: Cornell University Press, 1955).
[32] Wolford, p. 430.
[33] Calvin’s Institutes. 2:8:2, quoted in Potter, Mary L. “The Whole Office of the Law” in the Theology of John Calvin,’ The Journal of Law and Religion, Vol. 3, No. 1, 1985, p. 126.
[34] ibid. p. 128.
[35] Haskins, p. 161.
[36] The suggestion has been made by Zanger [“Crime and Punishment in Early Massachusetts,” William and Mary Quarterly, 3d series, Vol. 22, July 1965] that the reason for this was pragmatic. An intense manpower shortage in the Colony, coupled with a shortage of currency, led to the penalties actually imposed being less.
[37] Deuteronomy 19:13,21; 25:12; Hebrew 10:28.
[38] Flaherty, David, H., “Law and Enforcement of Morals in Early America” in Law in American History, ed. Donald Fleming and Bernard Bailyn, (Boston: Little, Brown, 1971), p. 208.
[39] Singer, C. Gregg, A Theological Interpretation of American History. 2d edition (revised), (Philadelphia: Presbyterian and Reformed Publ. Co., 1964, 1981), p. 19.
[40] See: Pound, Roscoe, The Spirit of the Common Law (Boston Beacon Press, 1963).
[41] For an excellent account of this see: Smith, Gary Scott. The Seeds of Secularization: Calvinism, Culture and Pluralism, 1870-1915 (Grand Rapids, Michigan: Christian University Press, 1985).
[42] Rushdoony, Rousas John, The Institutes of Biblical Law, (Nutley, New Jersey: The Craig Press, 1973), p. 790.
[43] Miller, Perry and Johnson, Thomas. The Puritans. (revised), Vol. 2. (New York: Harper & Row, 1963), pp. 370-94.
[44] Holmes. (dissent) Southern Pacific Co. v. Jensen, 224 U.S. at 222 (1917).
[45] Haskins, p.162.
John McClendon has two B.A.’s (Westmont – Philosophy/Religion; U.C. Irvine – Russian) and a J.D. from the University of Southern California. He is a senior editor of Antithesis.
