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Introduction

THE NEW HAVEN TRIALS

The opening scenes tell us we are in another world. A human head is pitched on a pole in the marketplace. A man is hanged because he is deemed to be the father of a piglet. Other events could happen in any era. A gun explodes, injuring an eye. A woman’s reputation is slandered. All of these events, great and small, occurred at the dawn of American history, in a short-lived colony little remembered today.

We know of these events because they happened as a result of trials held in the New Haven Colony in the middle of the seventeenth century. The trials were remarkable not only because of their subject matter but also because of the way they were conducted and recorded. Following centuries of obscurity, the trials contained in the colony’s records are brought to light in this book.

The most engaging aspect of the New Haven trials is the vivid manner of their reporting. The long-ago secretaries responsible for recording the transactions of the colony were not content to use the dry, succinct language of official documents so common at that or any other time—“John Jones was convicted of murder and sentenced to death.” ¹ Instead, the New Haven secretaries had the skill and genius to put flesh on these bones and fill them with life. We don’t just hear the names of judges and litigants. We sit in the front row and hear the twists and turns of fortune as the participants battle with life and liberty at stake. We see witnesses squirm on the stand when confronted with evidence contradicting their testimony.² We hear the court denounce a defendant (unhappily, a twelve-year-old boy) as “a notorious lying boy, a great offense to the English amongst whom he lives, and a dishonor to the nation to which he belongs” (see chapter 28, “The Milford Arson Case”). We watch the court at its Solomonic best, reasoning with a widow who is about to receive her deceased husband’s entire estate at the expense of his minor children: the court asks her how she would feel if her husband had given everything to her children and nothing to her (see chapter 18, “The Disputed Will”). We observe the court at its bone-chilling worst, ordering a small girl to be publicly whipped and sold into servitude (see chapter 33, “The Burning Barn”). In all these instances, we are spectators watching real dramas involving recognizable human beings, in all their wisdom and in all their folly. The records of the New Haven Colony captured these moments in a way that few judicial documents have ever done.

And then darkness. The records were not written for publication, and their authors could not have anticipated that anyone, at least anyone in future generations, would ever read them. They were written in a close and sometimes difficult seventeenth-century hand on folio sheets and then stored away in the anonymity of a local clerk’s repositories. There, they were almost forgotten, and several years of their contents were eventually lost.³

In 1772, the Connecticut General Assembly passed a surprising archival enactment:

Whereas the first antient [ancient] book of records of this Colony remaining in the Secretary’s office and the first records of the Jurisdiction of New Haven in the office of the town-clerk of the town of New Haven are much worn and decayed, and by constant use in danger of being totally ruined: Resolved by this Assembly, that the Secretary be directed, and he is hereby directed, to procure the said records to be fairly transcribed into some proper book or books to be by him procured for that purpose and laid before this Assembly to be compared and duly authenticated for common use: to the end that the said original ancient records may be safely preserved and used only upon special and important occasions. The Secretary is also directed to receive into his hands and deposit in his office the antient book of records of the Jurisdiction of New Haven now remaining in the office of the clerk of the county court of New Haven county, who is also hereby requested to deliver the same to him accordingly, that the same may remain for publick use in the publick archives of the Colony.⁴

Although the records of the Colony of Connecticut were duly preserved and transcribed pursuant to this act, the New Haven records were not. They remained in the custody of local officials, eventually being placed in a copper box.⁵

There matters stood until 1856. In that year, the Connecticut General Assembly passed the following act:

Resolved, That the secretary be authorized to purchase for the use of the state, two hundred and fifty copies of the proposed publication of the records of the Colony of New Haven, prior to the union with Connecticut, transcribed and edited by Charles J. Hoadly, Esq. Provided, that such publication shall be authenticated by the official certificate of the secretary, as a true copy of the original record; and provided also, that the expense of the same shall not exceed two dollars and fifty cents per volume.

Resolved, That the copies so purchased be distributed as follows: one copy to the town clerk of each town in this state, to be preserved in his office for the use of the town; one copy to the governor, and to each of the state officers of this state; one copy to the governor of each of the several states and territories of the United States, to be deposited in their several state libraries; one copy to the library of congress; one copy to the Smithsonian Institute; twenty five copies to Mr. Alexander Vattemare for international exchange; and the remainder of the said two hundred and fifty copies to be deposited in the office of the secretary, subject to the disposal of the general assembly.⁶

Charles J. Hoadly, the Connecticut state librarian, took his job seriously. He painstakingly transcribed and printed the New Haven records, retaining the contractions and abbreviations found in the original manuscript, and published them in two volumes. The first volume, covering the years 1638 to 1649, was published in 1857. The second volume, covering 1653 to 1664, was published in 1858.⁷ (The manuscript for the years 1649 to 1653 was lost.)

Prodigious though the effort behind these volumes was, three criticisms of the printed version are in order. First, the retention of the contractions and abbreviations of the original manuscript, however valuable to scholars, makes the end result extremely difficult to read. A modern reader must spend a great deal of time attempting to decipher what is actually being said in the proceedings described. Second, four cases involving sexual matters were redacted from the published work “as containing matters of a nature unfit for publication.”⁸ Third, the limitation of publication to 250 volumes, most of them consigned to scattered government repositories, virtually guaranteed that the records would continue to languish in practical obscurity.⁹ It is hoped that the present work will resolve these issues.

The original manuscript of the New Haven records, consisting of approximately 250 folio-size pages, remains in the archives of the Connecticut State Library.

History of the Colony

A comprehensive history of the New Haven Colony is beyond the scope of this work,¹⁰ but some knowledge of that history is essential to understanding the trials conducted under the colony’s authority.

The Colony of New Haven, which existed from its founding in 1638 to its union with the neighboring Connecticut Colony in 1665, resulted from a lifelong friendship between two English Puritans. John Davenport, a vicar of the English church, and Theophilus Eaton, a wealthy London merchant, were, in Cotton Mather’s indelible phrase, the “Moses and Aaron” of the new community.¹¹

Davenport (1597–1670) was a nonconformist, seeking to conform the church to biblical rules. Puritans like himself fell into disfavor under Charles I, and many of them looked to New England with the idea of founding biblically based communities there. Davenport’s childhood friend Eaton (1590–1658) had become wealthy through trade in Europe and was attracted by the possibilities of additional trade in the new world. “Thus a secular as well as a religious interest prompted the enterprise.”¹²

Under the leadership of Davenport and Eaton, a company of believers and traders sailed for Boston in 1637. Their stay in the Massachusetts Bay Colony appears not to have been congenial, and in 1638 they departed that colony to establish their own settlement at Quinnipiack Harbor on the northern shore of Long Island Sound, the location of modern-day New Haven.

For about a year, the colonists were occupied in building their new town, planting fields, and establishing an uneasy truce with the native inhabitants. In 1639, they turned to the task of establishing the rules by which the “plantation” was to be governed.

On June 4, 1639, the freemen of the plantation, about seventy in number, met in a large barn in New Haven “to consult about settling civil Government according to God.”¹³ It was agreed that “the Scriptures do hold forth a perfect rule for the direction and government of all men in all duties which they are to perform to God and men.”¹⁴ A “fundamental agreement” was made that “Church members only shall be free burgesses, and they only shall choose among themselves magistrates and officers to have the power of transacting all public civil affairs of this plantation, of making and repealing laws, dividing inheritances, deciding of differences that may arise, and doing all things and business of like nature.”¹⁵

On October 25, 1639, seven men “who were in the foundation of the church” met to establish a formal civil government.¹⁶ These pillars of the church proceeded to recognize a “court”¹⁷ consisting of “all those that have been received into the fellowship of this church since the gathering of it” plus members of other “approved” churches.¹⁸ The “fundamental agreement” of 1639 was recognized as the basis of the plantation’s government.

Theophilus Eaton was chosen as “magistrate” for the term of one year. His charge, given to him by Davenport, was that of Deuteronomy 1:16–17: “Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him. Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God’s: and the cause that is too hard for you, bring it unto me, and I will hear it.”

Robert Newman, Matthew Gilbert, Nathaniel Turner, and Thomas Fugill were chosen as “deputies” to assist the magistrate. Thomas Fugill was also chosen as “public notary.” His obligation in that capacity was “to attend court and from time to time to keep a faithful record of all passages and conclusions of the court.” Fugill’s faithful adherence to this task established a tradition of excellence in reporting that has made the present work possible. Robert Seely was chosen as “marshal.” His charge was “from time to time to warn courts according to the direction of the magistrate, to serve and execute warrants, to attend the court at all times, and to be ready and diligent in his person or by his deputy to execute the sentences of the court.” All officers were to be elected annually at a “General Court” of the plantation to be held during the last week of October.¹⁹

Prior to 1643, the term “New Haven” pertained to the town of that name. After that year, the name referred both to the town and to the more expansive “New Haven Colony.”²⁰ The colony now encompassed a total of six towns: the town of New Haven, the towns of Branford and Guilford to the east, the towns of Milford and Stamford to the west, and the town of Southold on the North Fork of Long Island.²¹

On October 27, 1643, the magistrates and deputies of the six towns entered into a “fundamental order” elaborating on the “fundamental agreement” of 1639. Only “planters” who were members of “approved churches” were to be “free burgesses” with the right to vote. Only church members could occupy positions of “power or trust,” although all free planters would have the right “to their inheritance and to commerce.”²²

The free burgesses of each town were to choose church members to be “ordinary judges, to hear and determine all inferior causes.” This latter term referred to civil cases involving less than twenty pounds and criminal cases involving corporal punishment or minor fines. Appeals from these judges could be made to the Court of Magistrates for the entire jurisdiction.

The Court of Magistrates consisted of the governor of the colony, the deputy governor, and magistrates elected by the free burgesses of the towns. The court was to meet twice a year in New Haven “for the trial of weighty and capital cases” and the hearing of appeals from the ordinary judges of the towns. Its decisions were subject to appeal to the General Court.

The General Court was “the last and highest” for the jurisdiction. It consisted of the governor, the deputy governor, all of the magistrates in the jurisdiction, and two deputies for each town, chosen by the free burgesses of that town. The General Court convened twice a year, on the first Wednesday in April and the last Wednesday in October. Its charge was to “with all care and diligence provide for the maintenance of the purity of religion and suppress the contrary.” It also had the power to make and repeal laws and to execute such laws throughout the colony.²³

The General Court was thus not simply a judicial court of highest jurisdiction. The modern notion, drawn from Montesquieu, of separate legislative, executive, and judicial authorities,²⁴ had no application to the New Haven Colony. The General Court combined all three functions in the same governing body.

Theophilus Eaton was elected governor of the colony. He would hold that position until his death in 1658.

In 1645, the General Court pronounced that “it was agreed, concluded and settled as fundamental law, not to be disputed or questioned hereafter, that the judicial laws of God, as they were delivered by Moses, and expounded in other parts of scripture, so far as they are a fence to the moral law … shall be accounted of moral and binding equity and force, and as God shall help shall be a constant direction for all proceedings here and a general rule in all courts of Justice how to judge betwixt party and party and how to punish offenders, till the same may be branched out into particulars hereafter.”²⁵ We shall see to what extent this official principle actually guided the colony’s jurisprudence.

Prior to 1656, the General Court’s 1645 statement of “fundamental law” provided the official standard by which the magistrates of the New Haven Colony were to be guided in their decisions. No printed compilation of statutes existed. While the biblical standard proved helpful (perhaps too helpful) in some cases—notably bestiality cases, which were governed by specific scriptural edict—it was of minimal practical assistance in the much wider array of cases to which no specific biblical rule applied. The absence of jurisprudential standards gave the magistrates great discretion in deciding cases of the latter description.

At some point in the mid-1650s, the General Court asked the governor to provide for a more detailed set of laws. The records of the General Court for May 30, 1655, state that

the governor being formerly desired by this Court to view over the laws of this jurisdiction and draw up those of them which he thinks will be most necessary to continue as laws here and compile them together fit to be printed, which being done, were now read, considered, and by vote confirmed, and ordered to be printed…. The Court further desired the governor to send for one of the new book of laws in the Massachusetts Colony, and to view over a small book of laws newly come from England, which is said to be Mr. Cotton’s, and to add what is already done as he shall think fit, and then the Court will meet again to confirm them, but in the meantime (when they are finished) they desire the elders of the jurisdiction may have the sight of them for their approbation also.²⁶

The “new book of laws” referred to was the 1648 Code of the Massachusetts Colony.²⁷ That work was enormously influential, inspiring both the Code of Laws published by the Connecticut Colony in 1650²⁸ and the 1656 New Haven Laws.

By October 19, 1655, the governor had completed his task. The records of the General Court for that day state that “the laws which at the Court’s desire have been drawn up by the Governor, viewed and considered by the elders of the Jurisdiction, were now read and seriously weighed by this Court, and by vote concluded and ordered to be sent to England to be printed, with such oaths, forms, and precedents as the Governor shall think meet to put in.”²⁹

The laws of the New Haven Colony were printed in London in 1656.³⁰ Their introductory statement of law, echoing that of the 1648 Massachusetts Code, sets forth their governing principle.

No man’s life shall be taken away, no man’s honor or good name shall be stained, no man shall be deprived of his wife or children, no man’s goods or estate shall be taken from him under Color or Countenance of Authority, unless it be by virtue or equity of some express Law of this Jurisdiction established by the General Court and sufficiently published, or for want of a Law in any particular case, by word of God, either in the Court of Magistrates or some Plantation Court, according to the weight and value of the cause, only all Capital causes, concerning life or banishment where there is no express Law, shall be judged according to the word and Law of God by the General Court.³¹

The 1656 Laws are thus not intended to provide an exclusive codification of legal rules. While printed laws are to govern when applicable, where there is a “want of a Law” the “word of God” will fill in the gaps.

On June 25, 1656, the governor informed the Court of Magistrates that five hundred “law books” had arrived by ship. The books were ordered to be divided among the constituent towns of the colony, for which each town was obliged to pay twelve pence a copy.³²

The 1656 Laws proved to be of little practical consequence. While they may have been consulted behind the scenes, they were rarely cited as authority in the colony’s judicial rulings (see chapter 18, “The Disputed Will” and chapter 20, “The Stolen Silverware”). As far as the New Haven courts were concerned, both before and after 1656, the governing authority was that of the Bible.

THE UNION WITH THE CONNECTICUT COLONY

In 1662, Charles II issued a charter to the Connecticut Colony. Under the charter, the Connecticut Colony, which previously bordered the New Haven Colony to the north, was now bounded “on the South by the Sea.”³³

The 1662 Charter proved to be a deathblow to the New Haven Colony, which no longer enjoyed official existence in the eyes of English officials. A month later, the inhabitants of Southold voted to join the Connecticut Colony. Stamford and Guilford soon followed. Milford left in 1664, leaving Branford and New Haven to hold out to the bitter end.³⁴

The last recorded New Haven trial was conducted in 1663, as recounted in chapter 33, “The Burning Barn.” On December 14, 1664, the New Haven Colony gave up the ghost and sent a letter to the Connecticut Colony seeking “love and union between us.”³⁵ On January 5, 1665, the colonies formally united.³⁶ The New Haven Colony, its government, its laws, and its trials, were now consigned to the dust of history.

The Courts

The New Haven Colony had a three-tiered court system. The Plantation Courts, one for each of the colony’s six towns, formed the bottom tier. The Court of Magistrates occupied the middle rung. At the top of the judicial ladder was the General Court.

The records tell us little about the Plantation Courts. It is clear, however, that each town had one or more magistrates elected by the free burgesses of the town. In addition to their task of trying minor civil and criminal cases, the magistrates “examined” parties and witnesses involved in more serious cases and sent records of those examinations to the higher courts.

In contrast, the records tell us a great deal about the General Court and the Court of Magistrates. They don’t tell us everything we’d like to know, but many details can be reconstructed.

THE GENERAL COURT

The General Court, the highest judicial authority in the colony, was not a “court” in the modern sense of the word. As mentioned, under the 1643 fundamental order, the General Court consisted of the governor, the deputy governor, all of the colony’s magistrates, and two deputies from each of the colony’s six towns.³⁷ The number of magistrates wasn’t fixed,³⁸ so the membership of the court could vary in size. If each town had one magistrate, the court would have twenty members. But some towns had at least two magistrates, so the total number of officials entitled to sit on the court probably numbered about two dozen.

In practice, not all members actually participated in the General Court’s functions. Although the records often fail to describe the court’s composition in individual cases, particularly in the colony’s early years, the roster of the court is sometimes provided. In the 1656 Case of the Farmhand Arsonist (chapter 19), for example, the court consisted of seventeen members: the governor, the deputy governor, three magistrates (one each from New Haven, Milford, and Guilford), and two deputies each from New Haven, Milford, Guilford, Stamford, Southold, and Branford.³⁹

Just as the General Court was not composed of specialized judges, its business was not strictly judicial. There was no strict separation of powers in the New Haven Colony. While the governor had an executive role, he also presided over the upper courts. The General Court combined judicial, legislative, and executive functions. Under the 1643 fundamental order, it had the “power to make and repeal laws and, while they are in force, to require execution of them in the several plantations.”⁴⁰ It could also “hear and determine all causes.”⁴¹ It additionally had the duty to “provide for the maintenance of the purity of religion, and suppress the contrary, according to their best light from the word of God and all wholesome and sound advice which shall be given by the elders and churches in the jurisdiction.”⁴² The court’s business was thus characterized by a wide-ranging array of secular functions along with the combined affairs of church and state.

The records are silent concerning the court’s physical circumstances. There was almost certainly no “courthouse” in the modern sense of the word. By tradition, the court first met in a large barn in New Haven.⁴³ Thereafter, it probably met in a convenient building, such as a church, a house, or a barn. It may have occasionally met outdoors. A record of the February 15, 1660, session of the (much smaller) Court of Magistrates notes that “the season being cold, the Court removed to a private house to consider [the] matter.”⁴⁴

Although the General Court differed from the Court of Magistrates in its responsibility for nonjudicial business, there does not appear to have been a strict practical demarcation in the types of judicial business coming before the respective tribunals. Whatever line there was appears to have been chronological. Broadly stated, the General Court had a significantly reduced judicial docket in the colony’s later years. Each of the twelve trials reported here occurring between 1639 and 1649 was conducted in the General Court. In contrast, only one of the twenty-one reported trials occurring between 1653 and 1663 was conducted in the General Court: “The Farmhand Arsonist,” discussed in chapter 19. The twenty-nine remaining trials from that latter period were conducted in the Court of Magistrates.

THE COURT OF MAGISTRATES

Standing below the General Court in the colony’s judicial hierarchy, the Court of Magistrates consisted of “[all] the magistrates for the whole jurisdiction.”⁴⁵ In addition, the governor and the deputy governor sat on the court ex officio. Because the number of magistrates wasn’t fixed, the court didn’t have a fixed number of members. There were six towns in the colony, so if each town had one magistrate, the court would have eight members (six magistrates plus the governor and the deputy governor). But some towns had more than one magistrate, so perhaps as many as ten or twelve officials were entitled to sit on the court.

However, as we saw with the General Court, the number of officials actually sitting on the Court of Magistrates was significantly smaller than the number of officials eligible to sit. The court presiding over the 1653 Case of the Rhode Island Privateer (chapter 13), for example, consisted of four members: the governor, the deputy governor, and two magistrates.⁴⁶ Sometimes three or four magistrates participated, so a typical Court of Magistrates might contain four to six members.

PROCEDURE

The discussion so far has concerned the formal structure of the New Haven courts. But the modern reader will want to know something quite different. What did the courts look like in operation? If you were transported to a New Haven court by a time machine, what would you see? Who would be in court? Who would speak and when? How did the court reach its decisions? Although the records don’t tell us everything—we don’t know where people sat or what they wore—they nevertheless tell us a surprising amount. Through them, we see a distinctive type of judicial proceeding, one finding no counterpart either in the modern English-speaking world or, for that matter, elsewhere in the world of the seventeenth century.

The first thing you might notice is that the New Haven courts sat without juries. The rejection of the ancient institution of the jury, well established in England as well as in the Massachusetts and Connecticut colonies, was apparently made at the suggestion of Governor Eaton.⁴⁷ There may have been practical concerns. Only church members had the right to vote (and consequently the right to sit on juries),⁴⁸ and they were so few in number that it may have been difficult to assemble juries of twelve.⁴⁹ But there were almost certainly philosophical concerns as well. The governing law was biblical, and it may have been thought that the necessary expertise to identify and apply that law reposed in the members of the court. To that end, the General Court was specifically empowered to consult the elders of the churches in the jurisdiction.⁵⁰ Consultations of this description by lay juries would have been more awkward.

The next thing you would notice, at least in the typical case, is the absence of lawyers. In criminal and civil cases alike, even in capital cases or in cases involving young children, persons appearing before the New Haven courts represented themselves. Representation was not legally prohibited, and as the colony’s history progressed, a few persons acting as attorneys appear in the records.⁵¹ But it is unlikely that these were persons with legal training. In a colony populated by believers and traders, persons with legal training were unlikely to be found.

Even when “attorneys” or representatives appeared, they rarely spoke. They simply stood by as the court examined their clients. They never made a legal motion or uttered an objection. In the twenty-four-year history of the colony’s trials, not a single motion or objection is to be found.

You would next notice the behavior of the court. Modern lawyers classify judicial styles as either “hot” or “cold.” A “hot court” asks lots of questions. A “cold court” listens to legal arguments with the silence of an Easter Island statue. The New Haven courts were most definitely “hot courts.” They not only peppered the parties and witnesses with questions but also did not hesitate to volunteer information pertaining to the cases before them.

The questioning process in the New Haven courts was quite unlike that of any court with which we are likely to be familiar. Courts in the English-speaking world ordinarily proceed one witness at a time. Visit a court in Boston or in San Francisco, in London or in Sydney, and the procedure will be the same. A witness will be sworn and questioned by each side. Only when that witness is finished will the next witness be called. The questions will be asked by the lawyers (or, in the absence of lawyers, by the parties). The judge may ask an occasional clarifying question, but by and large, the judge stays out of the fray.

The New Haven courts proceeded differently. Their procedure was much more free flowing and improvisational. The parties and their witnesses appeared together before the court. A claim would be made. The court might begin to hear a witness testify, but before too long, it might ask another witness about what the first witness had just said. Question by question, it would go back and forth between witnesses, sometimes between multiple witnesses. As they heard evidence, the judges would ask the witnesses, in effect, How do you explain this? What do you say about that? Sometimes a witness, a member of the court, or even a spectator would simply pipe up with some new information, and the court would follow up on that as well. In this way, the court could, if all worked well, probe the facts of the case with much greater efficiency than our modern judicial system allows.⁵²

You would also notice that the governor, who presided ex officio over both the General Court and the Court of Magistrates, did most of the talking for the tribunal. Although other members of the court occasionally spoke—sometimes to ask a question and sometimes to volunteer information—the governor asked most of the questions and, after the case had been heard, ordinarily delivered the judgment of the court. Whether by reason of status, learning, or force of personality, the governor dominated the court.⁵³

Other attributes of the New Haven courts would command your attention as well. One is the courts’ frequent reference to pretrial examinations of parties and witnesses. We don’t know exactly how the pretrial system worked, but the practice seems to have been that at an early date, a local magistrate (or sometimes the governor himself) would examine a party or witness and memorialize the witness’s testimony in a written document that would be transmitted to an upper court for subsequent use at trial. The upper court would then read the document and use it as substantive evidence in the case. Sometimes the pretrial statement of a witness would be used to supplement (or contradict) what the witness later said in court, but often it would be used even if the witness was absent from the proceeding.

This procedure—which permeated the practice of the New Haven courts—had significant implications for both the efficiency and the fairness of the proceedings. The efficiency of the system is obvious. A witness’s testimony could be recorded at an early date while his or her memory was fresh and subsequently read by the tribunal without troubling the witness to appear in court. The tribunal could save considerable time as well, since it is much more efficient to read a statement than to question a witness.

What was gained in efficiency, however, was lost in fairness. A witness’s credibility cannot always be gauged by reading a piece of paper. Parties appearing in court, often with life or liberty at stake, could not confront their accusers. A famous English case tried in 1603 (that was later, by negative example, to inspire the Confrontation Clause of the Sixth Amendment) provides a troubling example. Sir Walter Raleigh was sent to his death by the deposition testimony of a prosecution witness whom he was unable to confront in court.⁵⁴ Had Sir Walter returned from the grave a generation later, he would have recognized the New Haven system all too well.

Viewing the New Haven courts over a period of time, we would also notice a method of decision making quite different from that employed by judges today. Modern judges are expected to be neutral and detached professionals. Their task is to listen to testimony and arguments with open minds and to render judgment only after hearing all of the facts in the case. The New Haven courts had an entirely different view of the judicial task.

Criminal cases began with a presumption of guilt. In practice, this presumption was well nigh conclusive. Toward the end of the colony’s history, the Court of Magistrates acquitted a defendant of the crime of which he had been accused. This was such a novel event that the court was at a loss what to do. It felt compelled to find him guilty of something, and it ended up finding him “guilty of suspicion” (see chapter 31, “The Stamford Murder Mystery”). This problem did not, however, frequently arise. Criminal defendants were routinely convicted. The court’s task was to question the defendant and confront him with the evidence against him until a confession was forthcoming.

This judicial practice had both practical and ideological roots. In practical terms, the colony’s approach was closely connected with the pretrial examination procedure just described. Before a case came to one of the upper courts, a local magistrate would have examined the parties and witnesses shortly after the events in question and written a report of the examination. The members of the upper courts would read the magistrate’s report at the beginning of the trial. At least in their own minds, they knew the facts of the case before they had heard the first witness.

Ideology played a role as well. The colony was governed by biblical law. The judges, who consulted with the local clergy, were not wholly secular magistrates. Their task was to execute the law of God, and part of that task was to punish the wicked. Modern notions of judicial neutrality and the presumption of innocence would have been as alien to them as their judicial attitude is to us.

In civil cases—that is, actions for damages between private persons—the situation was somewhat different. Even though, in theory, biblical law was supposed to apply to these cases as well, in these cases applicable biblical law was difficult to identify. While, as we see in “The Piglet’s Paternity” in chapter 2, a court could determine the biblical punishment for bestiality by consulting the correct verse in Leviticus, this approach was not available in, for example, a dispute between a merchant and a shoemaker as to who was at fault for a supply of faulty shoes (see chapter 9, “The Faulty Shoes”). As a result, the New Haven courts could be admirably creative in devising solutions to civil disputes, such as assembling a panel of experts in the Case of the Faulty Shoes or engaging in Socratic reasoning with a party in “The Disputed Will” case in chapter 18. The New Haven courts, unfettered by judicial precedent, could be surprisingly progressive in these cases—indeed centuries ahead of their time. The General Court’s abandonment of the doctrine of caveat emptor (let the buyer beware) in the Case of the Exploding Gun (chapter 3) and the Court of Magistrates’ solicitude for a mistreated apprentice in the Case of the Brickmaker’s Apprentice (chapter 26) hold up centuries later as examples of wise and humane judging.

However wrong or even preposterous some of the courts’ decisions may seem to modern readers, the trials recounted here are considerably more than a collection of the follies and failures of the past. The New Haven judges were persons of intelligence and learning, working in a differently constructed judicial system and holding a worldview quite different from our own. They, like we, had their professional failures and their professional successes. Modern readers can learn from both.

The People

The New Haven trials are of obvious interest to legal historians, but their importance does not end there. They contain a vivid panorama of the life of the colony. While we read the words of the political and religious leaders of the colony, we also hear a chorus of voices from other strata of society. We hear from pillars of the colony and the church as well as from political and religious dissidents; from merchants and traders; and from rich and poor alike. We hear from persons living in houses staffed with servants and from the servants as well. We hear from farmhands who herd swine and shovel dung. We hear from persons who are gravely injured and persons engaged in grudge matches. We hear from persons who make enemies and persons who fall in love. Importantly, we hear the voices of women and children. Persons of all descriptions appeared before the New Haven courts and had intimate portraits of their lives recorded for posterity.

Reading carefully, we learn that the New Haven Colony, regardless of its official theology, was far from a peaceful assembly of religious folk living quiet lives of biblical virtue. However strict the colony’s political and religious rule, turmoil seethed beneath the surface. Church members dissented from the colony’s political and religious rule. Women rebelled from the church and its teachings. The colony’s young people (no surprise to us!) strayed from its official teachings and had premarital sex. More disturbingly, the colony’s economy was built on the labor of women, servants, and children. In scenes that could be drawn from the novels of Dickens, young children were forced into indentured servitude. There are many dark tales in the records, but cases involving the brutal oppression of children are the darkest of all.

This Book

All of these stories (with the exception of redacted sexual matters) appear in the printed records of the nineteenth century, but their original format, even when printed, makes them challenging to read. Contractions, antiquated spellings, and obsolete words abound. Familiarity with the Bible is presumed. Trials are interspersed with the records of legislative and executive business of the colony. Specific trials are sometimes interrupted by other business of the tribunal and must be pieced together from the larger record.

Once the trials are located in the records and the vocabulary and spelling are mastered, the narrative is not always clear. While the records can wonderfully capture the drama of a moment, they can also maddeningly omit key words and phrases in a speech and fail to identify (or occasionally misidentify) the speaker. Sometimes it is difficult to determine who is the person speaking or who is the person being discussed. Every effort has been made to resolve these difficulties, but some problems have proved intractable. Particularly vexing passages are discussed in endnotes accompanying the cases.

The New Haven trials have been previously known and accessible only to a handful of academic specialists. The goal of this book is to make these historic treasures accessible to the general public. To that end, each of the thirty-three cases recounted here is reported in two parts. The first part is a retelling of the case in modernized and intelligible English, with explanatory endnotes where needed. The second part is a commentary on the case.

The aim of the retold cases (indeed the enterprise of the entire book) is to do for the New Haven trials what the great English historian F. W. Maitland hoped to do for the medieval Year Books: “to hasten the day when they will once more be readable, intelligible and—we do not fear to say it—enjoyable.”⁵⁵ The dual aspirations are to modernize the language of the original records and, at the same time, to retain the original’s distinctive voice. These are conflicting goals, imperfectly realized. The difficulty is something like that of translating Chaucer into modern English. No translation will ever do complete justice to the original, but the more readable the modern version is, the more likely it is to depart from the original. The translator strives to retain as much of the original language as possible but with the knowledge that if the original language is simply repeated verbatim, the goal of modernization will be lost.

The titles, headings, introductory material, notes, and commentaries are mine. The notes explain difficult words, phrases, and references. The commentaries discuss the respective trials from a modern legal perspective.

The thirty-three trials recounted here have been culled from a larger number of trials reported in the records. Numerous short trials, briefly stating, for example, that specific persons were convicted of specified crimes or that certain persons were granted divorces or inheritances, are omitted because they shed little light on larger issues. It has also been necessary to omit a number of more lengthy trials because of the exigencies of publication. It is hoped that it will be possible to publish additional trials in the future.

When you read these cases, you will have the satisfaction—and, it is hoped, the pleasure—of discovering a treasure trove of informative and provocative source materials previously known only to a handful of academic specialists. But four cases involving sexual matters occupy an even more rarified category. “The Milford Bestiality Case” (chapter 15), “The Youth Sex Cases” (chapter 17), “The Attempted Bestiality Case” (chapter 22), and “The Lecherous Swineherd” (chapter 32) have never been printed, and the handwritten manuscript that records them has been locked in government vaults for centuries. With the exception of the seventeenth-century secretaries who wrote them and the nineteenth-century librarian who refused to print them, the number of people who have seen these cases must be few indeed. When you read, for example, “The Lecherous Swineherd” (chapter 32), with its Hardyesque tale of a swineherd’s seduction of a young servant girl, you will have the excitement of knowing that you are among the first to have read this story in centuries.

The New Haven trials are a great and endlessly interesting heritage. As Maitland said of the Year Books, “They come to us from life.”⁵⁶ It is hoped that this book will enable these endlessly interesting cases to come to life again.