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
