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THE INDIAN’S NAME

One day after the New Haven court system was organized, the colony made its first arrest and initiated its first case.¹ This case cannot be fully appreciated without some understanding of the extremely hostile relationship between the European colonists and the Native Americans residing in the area at that time. Between 1634 and 1638, these two groups waged a war known in U.S. history as the Pequot War.

In 1637 an Englishman named Abraham Finch had been killed in Wethersfield, then part of the (separate) Connecticut Colony. A Quinnipiac (the English name for the Renapi, an Algonquin tribe in Connecticut) man named Nepaupuck was accused of his murder. Finch was a casualty of a deadly raid on Wethersfield during the Pequot War. The war had formally ended on September 21, 1638, with the Treaty of Hartford, but tensions remained high among the English and Native populations.² The Pequots had lost the war; by the end, about seven hundred Pequots had been killed or taken into captivity. Hundreds of prisoners were sold into slavery in the West Indies. The conflict had embroiled the many tribes in the area including the Niantic, Mohigg, Naragansett, Montauk, and Pequot.

On October 26, 1639, a man calling himself Nepaupuck appeared in New Haven “of his own accord” and, “with a deer’s head upon his back,” presented himself to New Haven’s newly appointed magistrate, Theophilus Eaton. Whether he was, in fact, Nepaupuck was to be the central question in the case. For now, we’ll call him the prisoner. The reference to the “deer’s head upon his back” is one of the only references to attire in any of the records, so it seems significant—though we don’t know whether this detail was to indicate the stature of the man or his difference from the Europeans, or both.

Robert Seely, the colony’s newly appointed marshal, made his maiden arrest by apprehending the prisoner on a warrant and tying him up. Seely had been a neighbor of Finch’s in Wethersfield and was second in command in the Pequot War. The arrest was anything but routine. Aided by a second Native American, the prisoner attempted to escape. The attempt was unsuccessful. He “was again taken and delivered into the magistrate’s power, and … kept in the stocks until he might be brought to a due trial.” The period of pretrial detention turned out to be a couple of days—short by modern standards but a long time to spend in the stocks, hinged wooden boards that locked his feet in place. In the meantime, Seely’s deputy whipped the accomplice who had aided the prisoner.

Two days later, the colony witnessed its first judicial proceeding when the prisoner appeared before the New Haven magistrate and his deputies. The idea seems to have been that the judges would investigate the case and decide whether to refer it to the colony’s General Court for trial. In procedural terms, this was roughly analogous to a modern preliminary hearing, in which a court determines whether there is probable cause for a criminal case to proceed to trial. But the proceeding here seems to have had two somewhat different purposes: to examine witnesses and to persuade the prisoner to admit his guilt.

The magistrate and his deputies examined an unspecified number of Indians; their names and tribal affiliations are not given in the record, so we do not know if tribal allegiance motivated them to testify against Nepaupuck or on his behalf. These witnesses told the judges that the prisoner had murdered one or more Englishmen, cut off their hands, and presented the severed hands to a Pequot sachem, “boasting that he had killed them with his own hands.”

At this point, a witness intending to help the prisoner entered the room. The witness was the prisoner’s kinsman, Mewhebato. As recorded by the court, Mewhebato’s testimony did not go well. “At first he pretended ignorance, but with a distracted countenance, and in a trembling manner. Being admonished to speak the truth, he did acknowledge him guilty according to the charge the other Indians had before made.”

Now it was the prisoner’s turn to testify. The other Indians withdrew, and he was brought in and examined. The question immediately turned to just who he was. He “confessed that Nepaupuck was guilty according to the tenure of the former charge, but denied that he was Nepaupuck.”

At this point, Mewhebato was once again brought into the room. After “some signs of sorrow,” Mewhebato charged the prisoner “to his face that he had assisted the Pequots in murdering the English. This somewhat abated his spirit and boldness.” Another Indian was brought in and said that he had personally seen the prisoner, whom he called Nepaupuck, murder Abraham Finch in Wethersfield. Finally, the rest of the Indians were brought in. They too said that the prisoner was Nepaupuck and that he had murdered one or more of the English.

At that point, the prisoner, “being by the concurrence of testimony convinced, confessed that he was the man named Nepaupuck.” He further “boasted that he was a great captain, had murdered Abraham Finch, and had his hands in other English blood. He said he knew he must die and was not afraid of it, but laid his neck to the mantle-tree³ of the chimney, desiring that his head might be cut off or that he might die in any other manner that the English should appoint.” At this point, he “was returned to the stocks, and as before a watch was appointed for his safe custody.”

The General Court met the next day. The trial before this court was more summary than the hearing before the magistrates. The prisoner was “brought to the bar and examined as before.” He reverted to his original story. He was not the Nepaupuck who had committed the murder. But, once again, the other “did accuse him to his face.” The prisoner then “confessed that he had his hand in the murder of Abraham Finch, but yet he said there was a Mohawk of that name that had killed more than he.” At this point, another Indian “affirmed to his face” that the prisoner had killed a number of other men as well. The prisoner was now asked “if he would not confess that he deserved to die.” He replied, “It is weregin.”

We don’t know what “weregin” means; early historians of the New Haven Colony suggest that it means “It is known” or “So be it.” The court was satisfied. Having “such pregnant proof,” it “proceeded to pass sentence upon him according to the nature of the fact and the rule in that case, he that sheds man’s blood, by man shall his blood be shed.” The convicted man’s head was cut off the next day and pitched upon a pole in the marketplace.

This brief tale with its bloody conclusion arises from a dramatic clashing of cultures. The opening scene is cinematic and tragic. A seventeenth-century Native American, with his customary religious beliefs and attire, confronts a newly arrived group of European settlers professing the standards of the Bible. The settlers prevail, and the Native American ends up with his severed head pitched on a pole in the settlers’ marketplace.

The underlying legal questions raised by this proceeding are equally compelling. By the standards of modern criminal trials, the proceedings here were stunningly inadequate. To begin with the most obvious shortcoming, there was no jury to be found, in spite of the fact that the right to trial by jury had already been established as a cornerstone of English justice for centuries. The “court” had no trained judges. It was, instead, an assemblage of the leaders of the local theocracy, elected to that position a couple of days before and presiding over their maiden case. There were no attorneys. There was not even legal jurisdiction in the modern sense. The murder that was the subject of the trial had occurred in Wethersfield, which was part of the (separate) Connecticut Colony. A modern court, hearing these facts, would simply send the prisoner to the jurisdiction where the crime had been committed.

At first blush, we have something closer to the proverbial judgment of Solomon than to a trial in the modern sense. Everyone knows the story of Solomon and the baby (1 Kings 3:16–28). Two prostitutes each claim to be the mother of an infant. The king hears them out and says, “Bring me a sword.” He orders the child divided in two, with half given to each claimant. The false mother thinks this is just fine. The real mother pleads for the child’s life. By hearing both sides, without benefit of jury or counsel, the truth becomes manifest.

The judges professed themselves to be biblical men and would doubtless have been flattered by the comparison to Solomon, although it seems what was really at work can be compared to a military tribunal exercising the colony’s need to make an example of the accused murderer. Yet there are traces of actual law peeking through the underbrush.

There is biblical law, to start. The punishment meted out is, we are told, expressly dictated by “the rule in that case,” namely, “Whoso sheddeth man’s blood, by man shall his blood be shed” (Genesis 9:6). This use of biblical law conforms to a resolution adopted by the colony a few months previously that “the Scripture holds forth a perfect rule for the direction and government of all men.”

But there are traces of nonbiblical law as well. The court, after all, called itself a “court,” and there was plainly an attempt to give both the preliminary proceeding and the ensuing trial some form of legality. The prisoner was arrested on a “warrant,” although we don’t know who signed the warrant or what it said. There was a formal “charge.” The accusers confronted the prisoner “to his face,” a privilege famously denied to Sir Walter Raleigh in England earlier in the same century. Each tribunal heard the prisoner speak in person. And the proceedings were officially recorded in notes that we can read today.

What we have is a new form of trial. It isn’t the trial by jury mandated by the English law of the time. It’s nothing like the elaborate legal proceeding required by modern American law. And it’s not a “biblical” trial either. We have instead a newly improvised proceeding created to fit the felt needs of the newly founded colony. As we examine more cases, we’ll see how this experiment in legal procedure developed.