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,
