the process and the outcome, however, bear little resemblance either to modern notions of justice or even to contemporaneous notions of English justice. As in the trial of Nepaupuck, there were no jurors or attorneys to be found. Once again, a high premium is placed on confession by the accused. But the preliminary hearing before a tribunal of magistrates that we saw in the trial of Nepaupuck has disappeared. The magistrates now visited the prison and, joined by the marshal, browbeat the prisoner into confessing.
The record of Spencer’s trial is of particular legal interest for the light it sheds on the use of the oath. The testimony originally given against Spencer was unsworn. After Spencer had heard this testimony and denied it, the witnesses were sworn and testified again, this time under oath. This practice stands in contrast to long-standing tenets of English law, requiring prosecution (although not defense) witnesses to be sworn. Perhaps due to the admonition of Matthew 5:34 and the memory of English legal repression directed against them, the early Puritan colonists were reluctant to use oaths.5 It appears that oaths were used only as a last resort, in cases where attempts to obtain a full judicial confession from the accused had failed.
3
THE EXPLODING GUN
Three years after the execution of George Spencer, the New Haven court considered a civil case.1 Although the participants would not have recognized the term, we would call it a product liability action.
In December 1645, Stephen Medcalfe appeared before the General Court and told the following story. When he was in the house of one John Linley, John’s brother, Francis Linley, had offered to sell him a gun. Medcalfe asked if it was a good one, and Francis answered, “Yea, as any was in the town.” The parties agreed on a price of seventeen shillings.
As Medcalfe was leaving, he questioned the sufficiency of the lock mechanism. Francis admitted that John Nash, the local blacksmith, had told him “she was not worth three pence,” but he added that Nash had also disparaged another gun that was “a good one for all that.”
Nash apparently knew more than Francis had let on. When Medcalfe went home with the gun and fired it, the breech (the end of the barrel) flew out and struck his eye, seriously wounding him. Medcalfe now wanted damages from Francis.
Francis responded that he had duly informed Medcalfe of Nash’s opinion. He added that he had also told Medcalfe that the barrel was thin and would not bear a new breech. He said that he had advised Medcalfe to scour the gun well “and if he tried her, to put but a little charge in her.”
Unfortunately for Francis, he had previously been examined before Thomas Gregson, a New Haven magistrate, and his story at the trial was not consistent with what he had told Gregson. (We don’t know exactly what form this examination took, but it sounds like something more formal than a chance conversation.) The magistrate told the court that Francis had denied telling Medcalfe that the barrel was thin and would not bear a new breech.
Nash followed Magistrate Gregson. Nash testified that he had told Francis “it was a very naughty piece, not worth the mending.” He further told Francis that “the barrel at the breech was as thin as a shilling, cracked from the breech to the touch-hole and would not bear a breech.” Notwithstanding this advice, Francis told Nash to mend the firearm as well as he could. After he had mended it, Nash told Francis that he would not give three pence for it and “he would not discharge it for all New Haven, for it would do some mischief.”
Richard Myles testified that he had overheard Nash tell Francis of the gun’s “badness and unserviceableness.”
The focus of the trial finally turned to Francis’s brother, John Linley. John was asked “why he was taken with such a quaking and trembling” when Medcalfe was about to shoot. John denied any quaking or trembling. Thomas Clark testified about a conversation with John: John had told Clark that when he heard Medcalfe discharge the gun, John was afraid Medcalfe had hurt himself. The wonderfully named Goodwife Fancy testified that John had visited Medcalfe on what John thought was Medcalfe’s deathbed “to know if he would clear his brother, for he said he feared he had hard thoughts of his brother concerning the gun.” Thomas Pell, who had apparently acted as Medcalfe’s physician, confirmed this testimony. Pell added that Medcalfe’s medical expenses amounted to ten pounds.
The court considered this testimony and ordered Francis Linley to pay Medcalfe twenty pounds in damages.2 It based the size of this award on the loss of Medcalfe’s eye, the loss of his time, and “the great charge of the cure.”
While the Case of the Piglet’s Paternity shows the New Haven court at its medieval worst, the Case of the Exploding Gun shows the court as, at least in some ways, a surprisingly modern institution. It is true that neither jurors or attorneys are anywhere to be seen. But the court went to great pains to hear both the parties and all the relevant witnesses and delivered a judgment that seems reasonable and compassionate, given the limited information we have about the extent of Medcalfe’s injuries.
The procedure used by the parties in this case was miles away from the centuries-old system of common-law pleading used in English (and most American) courts until well into the nineteenth century. Had Medcalfe brought his case in England, he would have had to employ an attorney to draft an exceptionally complicated written pleading setting forth all of the facts legally relevant to his cause of action. A failure to do this correctly would be fatal to his cause. Similarly, his opponent would have had to hire an attorney to attempt to find fault with the first pleading and to draft a responsive pleading of his own. (As we’ll see in a moment, under contemporary English law, any action brought by Medcalfe would have had plenty of legal faults to find.) In some cases, the parties could keep trading replies and surreplies for quite some time, all the while arguing the technical defects of their opponents’ legal handiwork. In Medcalfe v. Linley, however, this complicated pleading process was simply skipped over. It looks as if there was some rudimentary form of pretrial discovery, since Magistrate Gregson had examined Francis Linley prior to the trial. But the parties were not judged on their pleadings. They could simply appear before the court and tell their sides of the story.
The trial was also surprisingly modern in terms of substantive law. Perhaps because this was a civil case, there was no citation to the Old Testament. The court may have attempted to act in a Solomonic way, but its judgment was not burdened with either biblical or contemporaneous legal precedent.
It’s a good thing for Medcalfe that this was so. English law at the time was decisively caveat emptor (let the buyer beware). A famous English legal case at the time illustrates the point. In 1603, a man named Chandelor purchased what he thought was a precious stone from a London goldsmith. The goldsmith told Chandelor the stone was a “bezar-stone,”3 and Chandelor paid the enormous sum of one hundred pounds to buy it. In reality, the stone was a fake. Chandelor sued the goldsmith and won an award in an English trial court. The goldsmith took an appeal, however, and succeeded in overturning the verdict. The justices held that there could be no cause of action against the goldsmith for “the bare affirmation” that it was a bezar-stone. This was the case even if the goldsmith actually knew it wasn’t a bezar-stone all along. The court reasoned that “everyone in selling his wares will affirm that his wares are good, or the horse which he sells is sound.” A cause of action only exists if the seller “warrants” that the goods are what they purport to be.4
Francis Linley hadn’t “warranted” his gun to
