Crime and Punishment in American History - Lawrence M. Friedman [20]
The colonies were certainly not democracies—they were, rather, autocracies and theocracies—but the leading men did not think of themselves as dictators, and certainly not as aristocrats, born to lead. As we have said, the law was in some respects profoundly popular. The thousands of pages of court records certainly breathe a popular flavor. Ordinary people used the courts, to get justice for themselves, vindication, restitution; and in criminal as well as civil matters. As Bradley Chapin has pointed out, the courts “acted as safety valves for society” with regard to “interpersonal relations.” He refers here to cases of slander, defamation, and assault; often, such cases did not end up with a final judgment. A public “airing of the case” was enough; it “relieved pressure.”1
Colonial Religion and Criminal Justice
Nonetheless, it would be hard to overemphasize the influence of religion—the beliefs of magistrates and leaders—in shaping the criminal codes, in framing modes of enforcement, and, generally, in creating a distinctive legal culture. The criminal justice system was in many ways another arm of religious orthodoxy. This was true everywhere in the colonies; but most strikingly, perhaps, in the Puritan north.
A religious message leaps out of virtually every page of the early Puritan codes. Rules to buttress religious orthodoxy permeate the Laws and Liberties of Massachusetts (1648). The code condemned, for example, Anabaptists as “Incendiaries of Common-wealths & the Infectors of persons” ; if these misguided creatures remained “obstinate” in their false beliefs, they were liable to “banishment.” Heresy was also a crime in Massachusetts. The community had the right to banish believers in “damnable heresies, tending to the subversion of the Christian Faith and destruction of the soules of men.” There was no welcome mat for Jesuits who entered Massachusetts (unless by “ship-wrack or other accident”); on the contrary, they were to be tossed out of the commonwealth. If an exiled Jesuit dared to come a second time, he could be put to death.
The laws against Quakers were particularly virulent in this colony. In 1658, the Massachusetts General Court allowed the death penalty for Quakers who returned after banishment. Quakers were particularly dangerous, since they aimed to “undermine & ruine” authority, making their heresy far worse than mere religious error. Two Quakers were hanged in 1659; in 1661, another Quaker, William Ledra, who had been banished and returned, died on the gallows.2
Blasphemy was another colonial crime. A New Hampshire law defined it as “Denying, Cursing or Reproaching the true God, his Creation or Government of the World,” or “Denying, Cursing, or Reproaching the Holy Word of God, that is, the Canonical Scriptures, contained in the Books of the Old, and New Testament.” Under this statute, a court in its discretion could put the blasphemer in the pillory, whip him, bore his tongue “with a red hot Iron,” or make him stand on the gallows with a rope around his neck3 A Virginia law (1699), aimed at stamping out “horrid and Atheisticall principles greatly tending to the dishonour of Almighty God, and ... destructive to the peace and wellfaire of this ... collony,” made it a crime to deny “the being of a God or the holy Trinity,” or to “assert or maintaine there are more Gods then one,” or deny the truth of Christianity, or the “divine authority” of Old and New Testament .4
In the court records, however, blasphemy does not appear very often. A jury acquitted Gabriel Jones, of Kent County, Delaware, accused of saying, “with a lowd voice... ‘Cursed be My God for Suffering me to live to be so old to be abused by Dennis Dyer.’”5 Perhaps his words struck the jury as pathetic, rather than blasphemous.
Colonial law took the sabbath quite seriously. Sunday was for praying and churchgoing; almost everything else was against the law. Many colonists were taken to task for skipping services. In Salem, Massachusetts, John Smith and the wife of John Kitchin were fined