Published online by Cambridge University Press: 18 August 2010
Scholars have long asked to what extent there was a distinctive Puritan jurisprudence in seventeenth-century Massachusetts. Purita n jurisprudenceis a shorthand that refers to those elements of seventeenth-century Massachusetts's laws and institutions designed or selected because of the early colony's religious commitments. Among the fundamentals of Puritan jurisprudence were the integrated and determined use of legal and ecclesiastical institutions to foster a godly community, the importance of the Bible as a touchstone for the legitimacy of rules, and a constitutional order restricting colony-wide voting and political office to regenerate members of covenanted churches. Some historians speak of “Puritan justice” or “Puritan legal culture” rather than “Puritan jurisprudence.” Differing in detail and emphasis, these formulations point to a core idea animating much writing about early Massachusetts: that the colony lived by a legal order distinctive by the standards of contemporary England and her North American and Caribbean colonies and strongly shaped by Puritan religious commitments and social thought.
1. Here are a few representative examples. Barbara A. Black examines how Massachusetts leaders integrated Scripture with the colonial charter, their own ordinances, and English law in “Aspects of Puritan Jurisprudence: Comment on the Puritan Revolution and English Law,” Valparaiso University Law Review 18 (1984): 651–64.Google Scholar In “Record-Keeping and Other Troublemaking: Thomas Lechford and Law Reform in Colonial Massachusetts,” Law and History Review 23 (2005): 235–77CrossRefGoogle Scholar, Angela Fernandez argues that attorney Thomas Lechford was a critic of the colony's “Puritan jurisprudence,” which favored discretionary, atechnical, equitable justice dispensed by magistrates wielding inquisitorial powers in face-to-face settings. Cornelia Hughes Dayton discusses under the rubric of “Puritan jurisprudence” the various strategies adopted by the neighboring colony of New Haven to “uphold a God-fearing society through the courts.” Dayton, , Women before the Bar: Gender, Law, and Society in Connecticut, 1639–1789 (Chapel Hill: University of North Carolina Press, 1995), 8–10, 24–34Google Scholar (quotation on p. 8) (see generally her index entry for Puritan jurisprudence). McClendon, John G. examines the tensions of early Massachusetts Biblicism in “Puritan Jurisprudence: Progress and Inconsistency,” Antithesis 1 (1990)Google Scholar [Reformed Christian online journal].
2. While I will use “Puritan jurisprudence” throughout this article, what is important is the core idea rather than the phrase. “Puritan justice” or “Puritan legal culture” would serve as well. The classic modern formulation of the core idea is Haskins, George L., Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York: Macmillan, 1960).Google Scholar A prominent recent illustration is Nelson, William E., “The Utopian Legal Order of the Massachusetts Bay Colony, 1630–1686,” American Journal of Legal History 47 (2005): 183–230.CrossRefGoogle Scholar For an example in a popular textbook, see Henretta, James A., Brody, David, and Dumenil, Lynn, America: A Concise History, 2nd ed. (Boston: Beford/St. Martin's, 2002), 53–54.Google Scholar
3. See, e.g., Heyrman, Christine Leigh, Commerce and Culture: The Maritime Communities of Colonial Massachusetts, 1690–1750 (New York: Norton, 1984), 29–51;Google ScholarInnes, Stephen, Labor in a New Land: Economy and Society in Seventeenth-Century Springfield (Princeton: Princeton University Press, 1983), xvii–xix, 124–49;Google ScholarRutman, Darrett B., Winthrop's Boston: A Portrait of a Puritan Town, 1630–1649 (1965; New York: Norton, 1972)Google Scholar; Rutman, Darrett B., American Puritanism (New York: Norton, 1977)Google Scholar; Foster, Stephen, The Long Argument: English Puritanism and the Shaping of New England Culture, 1570–1700 (Chapel Hill: University of North Carolina Press, 1991)Google Scholar.
4. Leading examples of this literature include Barbara Black, “Puritan Jurisprudence”;Haskins, George L., Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York: Macmillan, 1960)Google Scholar;Howe, Mark DeWolfe, “The Sources and Nature of Law in Colonial Massachusetts,” in Law and Authority in Colonial America, ed. Billias, George (1965; New York: Dover Publications, 1970), 1–16;Google ScholarRutman, , American Puritanism; andGoogle ScholarGWarden, . B., “Law Reform in England and New England, 1620 to 1660,” William and Mary Quarterly 35 (1978): 668–90CrossRefGoogle Scholar.
5. Cohen, Charles L., “Puritanism,” in Encyclopedia of the North American Colonies, ed. Cooke, Jacob Ernest et al. (New York: Maxwell Macmillan International, 1993), 3:578–81;Google ScholarCollinson, Patrick, “Concerning the Name Puritan,” Journal of Ecclesiastical History 31 (1980): 485–86;CrossRefGoogle ScholarCollinson, , English Puritanism (London: The Historical Association, 1983), 19, 28–29, 34–35;Google ScholarFoster, Stephen, The Long Argument: English Puritanism and the Shaping of New England Culture, 1570–1700 (Chapel Hill: University of North Carolina Press, 1991), 9Google Scholar;Lake, Peter, “Defining Puritanism—Again?” in Puritanism: Transatlantic Perspectives on a Seventeenth-Century Anglo-American Faith, ed. Bremer, Francis J. (Boston: Massachusetts Historical Society, 1993), 3–29;Google ScholarTodd, Margo, Christian Humanism and the Puritan Social Order (Cambridge: Cambridge University Press, 1987), 14Google Scholar;Underdown, David, Fire from Heaven: Life in an English Town in the Seventeenth Century (New Haven: Yale University Press, 1992), 20–22Google Scholar.
7. The colony's petition to the Commissioners is inWinthrop's Journal: “History of New England,” 1630–1649, ed. Hosmer, James Kendall (New York: Charles Scribner's Sons, 1908), 2:310 Google Scholar.
8. Winslow, Edward, New England's Salamander (London, 1647), 11.Google ScholarEdward Johnson claimed that the laws of England applied in Massachusetts “so far as the people and place can be capable.” Johnson, Good News from New England (1648; Delmar, N.Y.: Scholars' Facsimiles & Reprints, 1974), 205.
9. “Declaration of 1646,” inHutchinson, Thomas, ed., Collection of Original Papers Relative to the History of the Colony of Massachusetts-Bay (Boston, 1865), 1:223–47Google Scholar(quotation on p. 236).
11. Morris, Richard B., “Massachusetts and the Common Law: The Declaration of 1646,” in Essays in the History of Early American Law, ed. Flaherty, David (Chapel Hill: University of North Carolina Press, 1969), 135–46.Google ScholarSee also Morison, Samuel Eliot, Builders of the Bay Colony, rev. ed. (Boston: Houghton Mifflin, 1964), 253–54Google Scholar.
12. “Declaration of 1646,” inHutchinson, , Papers, 1:227, 238–39.Google ScholarThe distinction between (permissible) variation and (impermissible) repugnancy was a staple of Anglo-American constitutional argument. See generallySmith, Joseph H., Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950)Google Scholar;Bilder, Mary Sarah, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2004)Google Scholar.
14. Haffenden, Philip S., “The Crown and the Colonial Charters, 1675–1688: Part I,” William and Mary Quarterly 15 (1958): 297–311;CrossRefGoogle Scholaribid., “Part II,” 452–66;Levin, Jennifer, The Charter Controversy in the City of London, 1660–1688, and Its Consequences (London, 1969), 93, 98–99;Google ScholarJohnson, Richard R., Adjustment to Empire: The New England Colonies, 1675–1715 (Leicester: Leicester University Press, 1981), 29, 52.Google ScholarFor examples of Massachusetts colonists' proliferating references in the late 1680s and 1690s to their constitution's antiquity,see Hart, James S. and Ross, Richard J., “The Ancient Constitution in the Old World and the New,” in The World of John Winthrop: Essays on England and New England, 1588–1649, ed. Bremer, Francis J. and Botelho, Lynn A. (Boston: Massachusetts Historical Society, 2005), 269–70Google Scholar.
15. An early inkling of this process appeared within a year of the Restoration when the General Court took the unusual step of asking a committee to report back on the colony's “liberties” and “duties of allegiance” as established by “our patent, laws, privileges, and duty to his majesty.”Records of the Governor and Company of Massachusetts Bay in New England, ed. Shurtleff, Nathaniel B. (Boston, 1854), 4.2:24–26Google Scholar.
18. Oxenbridge, John, New England Freemen Warned and Warmed (Boston, 1673), 28–29;Google ScholarShepard, Thomas, Eye Salve, Or Watchword from our Lord Jesus Christ unto His Church … To Take Heed of Apostasy (Cambridge, 1673), 22.Google ScholarMinisters referring to the structure of church and state spoke of the colony's ecclesiastical and civil constitutions. See, e.g., Elders' Advice to the General Court (1672), inHutchinson, , Papers, 2:167Google Scholar;Hubbard, William, The Happiness of a People in the Wisdom of their Rulers Directing (Boston, 1676), 50Google Scholar.
19. Letter from Randolph to King Charles II (17 November 1676),in Edward Randolph, Including His Letters and Official Papers … 1676–1703, ed. Toppan, Robert N. and Goodrick, Alfred T. (New York, 1967), 2:261Google Scholar;Letter from Randolph to Earl of Clarendon (14 June 1682), in ibid., 3:157; Letter from Randolph to Archbishop of Canterbury (7 July 1686), in ibid., 4:88; Massachusetts Agents' Protest against Randolph's Appointment as Collector (1677?), in ibid., 6:76.
20. General Court to Earl of Sunderland, Secretary of State (May 1680), in Massachusetts Records, 5:271. By the 1670s and 1680s, both colonists and Crown administrators routinely spoke of the colony's “constitution.” For additional examples, see, e.g., Letter from Charles II to Massachusetts (20 September 1680), in Hutchinson, Papers, 2:262–63; Address of the General Court to Charles II (March 1683), Massachusetts Records, 5:387.
21. Compare Anonymous, , The Humble Address of the Publicans of New England (London, 1691),Google Scholarin The Andros Tracts, ed. Whitmore, William Henry (New York: Burt Franklin, 1968), 2:256Google Scholar;and John Palmer, An Impartial Account of the State of New England; Or, the Late Government There Vindicated (London, 1690), in ibid., 1:42.
22. Debates over the implications of the 1683 quo warranto proceedings against the charter of London acclimated the colonists to the distinction between charter rights and a broader category of prescriptive customs and privileges.See Hart, and Ross, , “Ancient Constitution,” 275–76Google Scholar.
23. “An Act for Regulating of Townships,” in Goodell, Abner and Ames, Ellis, eds., Acts and Resolves of the Province of the Massachusetts Bay (Boston, 1869), 1:65.Google Scholar
24. See, e.g., Cotton, John, The True Constitution of a Particular Visible Church Proved by Scripture (London, 1642)Google Scholar;Mather, Richard, Church Government and Church Covenant Discussed, In an Answer of the Elders of the Several Churches of New England to Two and Thirty Questions Sent Over to Them by Divers Ministers in England (London, 1643), 82Google Scholar;Hooker, Thomas, A Survey of the Sum of Church Discipline (London, 1648), 11–34Google Scholar.
25. Winthrop's Journal, 2:239 . Winthrop also noted that the General Court enjoyed the power to “make laws and constitutions” to govern the colony.Google ScholarWinthrop, , “Discourse on Arbitrary Government,” in Winthrop Papers: Volume IV, 1638–44, ed. Forbes, Allyn Bailey (Boston, 1944), 4:470 .Google ScholarThe Body of Liberties granted the freemen of each town the “power to make such by-laws and constitutions as may concern the welfare of their town, …” Liberty #66, Body of Liberties (1641), reprinted in Edwin Powers, Crime and Punishment in Early Massachusetts, 1620–1692 (Boston: Beacon Press, 1966), 540. See generallyStourzh, Gerald, “Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century,” in Conceptual Change and the Constitution, ed. Ball, Terence and Pocock, J. G. A. (Lawrence: University Press of Kansas, 1988), 35–54, esp. 43Google Scholar;Hulsebosch, Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 32–36.Google ScholarWinthrop also used “constitution” in a second sense to refer to the action of making or establishing a polity. The 1629 Massachusetts Charter, Winthrop observed, contained the “words of constitution of this body politic.” Winthrop, “Arbitrary Government,” in Winthrop, Family Papers, 4:469 .
26. Winthrop's Journal, 1:133–34 ; 1:151 ; 2:50–52 ; 2:64–66 ; 2:116–21 ; 2:164 ; 2:211–8 ; 2:240–42 ; Thomas Hooker, Letter to John Winthrop (c. Dec. 1638),Winthrop, , Family Papers, 4:81–82Google Scholar.
28. Among the many examples that might be cited, consider: John Cotton's analysis of whether deputies had “constant” (rather than “occasional”) power of judicature inWinthrop's Journal, 2:211–13 1644];Google ScholarWinthrop, John, “Arbitrary Government,” in Winthrop, Family Papers, 4:468–82 Google Scholar.
30. Hedley, Thomas, Speech of June 28, 1610, in Proceedings in Parliament 1610, ed. Foster, Elizabeth Reed (New Haven, 1966), 2:170–76. Hedley told his listeners that he would not consider the fourth of the Aristotelian causes, the efficient cause.Google Scholar
31. Winthrop, John, “Arbitrary Government,” in Winthrop, Family Papers, 4: 468 .Google Scholar
32. See, e.g., Winthrop's, Journal, 2:186 ;Google ScholarWilliam Pychon, Letter to John Winthrop,9 March 1646/7,Winthrop, , Family Papers, 5:135Google Scholar(arguing against those who think Massachusetts is a free state). For an account more strongly emphasizing the centrality of “free state” conceptions,see Winship, Michael P., “Godly Republicanism and the Origins of the Massachusetts Polity,” William and Mary Quarterly 63 (2006): 448–50Google Scholar.
33. John Winthrop, “A Reply in Further Defense of an Order of Court Made in May, 1637,”Winthrop, , Family Papers, 3:465Google Scholar;Konig, David T., Law and Society in Puritan Massachusetts: Essex County, 1629–1692 (Chapel Hill: University of North Carolina Press, 1979), 22–26.Google ScholarThe Massachusetts Charter of 1629 made the “Governor and Company of the Massachusetts Bay” a “body corporate.” Massachusetts Charter, in Massachusetts Records, 1:10.
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38. Middlekauff, Robert, The Mathers: Three Generations of Puritan Intellectuals, 1596– 1728 (New York: Oxford University Press, 1971), 98.Google Scholar
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40. By the middle seventeenth century, the General Court sometimes referred to the colony's legal order with language suggesting invention. The preface to the 1660 printed edition of the Massachusetts legal code, the Laws and Liberties, contained a sentence not present in the original 1648 edition: “Laws are the people's birthright, and law makers the parents of the country. Laws and Liberties (1648), reproduced in The Laws and Liberties of Massachusetts, 1641–1691, compiled with an introd. by John D. Cushing (Wilmington, Del.: Scholarly Resources, 1976), 1:7. The General Court here assumed not only that Massachusetts was a country, but one constituted by laws. Lawmakers, the parents, have created (and are creating) this new country.
41. I use the phrase “partial dissociation” to make only a relative claim. Relative to the 1630s and 1640s, Massachusetts leaders spoke more of their regional religious identity and thereby tacitly set themselves off, if only somewhat, from a transnational Protestant affiliation. My claim is not inconsistent with evidence of New Englanders' continuing communications with, and fundraising and prayers for, English nonconformists and Continental Reformed churches.Bremer, Francis J., Congregational Communion: Clerical Friendship in the Anglo-American Puritan Community, 1610–1692 (Boston: Northeastern University Press, 1994), 65–71, 164–65, 231.Google ScholarMy claim also does not conflict with the observation that after the Glorious Revolution, New Englanders' military conflicts with Catholic powers and relief at a secure Protestant succession heightened attachment to an international “Protestant interest.” Kidd, Thomas S., The Protestant Interest: New England after Puritanism (New Haven: Yale University Press, 2004)CrossRefGoogle Scholar.
42. On the General Court's substitution of “jurisdiction” for “commonwealth,”see Massachusetts Records, 5:198, 339 October 1678; March 1681/82].Google ScholarIncrease Mather emphasized how “commonwealth” had been “obliterated” from the colony's laws inNew England Vindicated from the Unjust Aspersions Cast on the Former Government There (London, 1689?),Google Scholarin Andros Tracts, 2:123.
43. The Bible and age of the apostles constituted the “primitive” days that Puritans yearned to recapture. The founding generation stood, in Theodore Dwight Bozeman's words, as a “secondary primordium.”Bozeman, , To Live Ancient Lives: The Primitavist Dimension in Puritanism (Chapel Hill: University of North Carolina Press, 1988), 320–22.Google ScholarSuch, at least, was the dominant rhetorical posture of ministers. Religious institutions changed far more readily than the rhetoric would suggest, not least because the founding generation's ambivalences and compromises allowed practices to change significantly while claiming fidelity to tradition.Hall, David D., The Faithful Shepherd: A History of the New England Ministry in the Seventeenth Century (Chapel Hill: University of North Carolina Press, 1972), 202–3;Google ScholarHall, David D., “Religion and Society: Problems and Reconsiderations,” in Colonial British America: Essays in the New History of the Early Modern Era, ed. Greene, Jack P. and Pole, J. R. (Baltimore: Johns Hopkins Press, 1984), esp. 324–25Google Scholar.
44. For an account of religious and legal filiopietism that stresses similarities over differences,see Hermes, Katherine A., “Religion and Law in Colonial New England, 1620–1730” (Ph.D. dissertation, Yale University, 1995), 210–70Google Scholar.
46. Stout, Harry S., The New England Soul: Preaching and Religious Culture in Colonial New England (Oxford: Oxford University Press, 1986), 117.Google Scholar
47. The preface to the colony's 1648 legal code proclaimed that Massachusetts must “frame our civil polity, and laws according to the rules of his most holy word whereby each do help and strengthen other (the churches the civil authority, and the civil authority the churches) and so both prosper the better. … ” Laws and Liberties (1648),in Cushing, , Laws and Liberties of Massachusetts, 1:5.Google ScholarSee also Cotton, John, A Discourse about Civil Government in a New Plantation Whose Design is Religion (Cambridge, Mass., 1663 [MS, 1637]), 7Google Scholar;Cotton, Letter to Lord Say and Seal (1636) inEmerson, Everett, ed., Letters from New England: The Massachusetts Bay Colony, 1629–1638 (Amherst: University of Massachusetts Press, 1976), 190–91Google Scholar.
48. First and second generation ministers and magistrates did not commonly inquire to what extent religion served as the efficient and final causes of the law. That is, they seldom compared religion to other possible factors to determine the relative balance of forces shaping their legal order. One can, of course, find broad assertions of the primacy of godliness, such as John Cotton's assertion that God is the “efficient and author” of both the civil and ecclesiastical polity and “God's glory” is the “end of them both.”Cotton, , Discourse about Civil Government, 6Google Scholar.
49. Belcher, Joseph, “Preface,” The Singular Happiness of Such Heads or Rulers As Are Able to Chose Out Their People's Way and Will Also Endeavor to their People's Comfort (Boston, 1701), 3–4;Google ScholarFoxcroft, Thomas, Observations Historical and Practical on the Rise and Primitive State of New-England (Boston, 1730), 11.Google ScholarFor an evocation of the lost “theocracy” of God's “peculiar people” under the first charter period,see Mather, Cotton, Magnalia Christi Americana: Books I and II, ed. Murdock, Kenneth B. (Cambridge, Mass.: Belknap Press, 1977), 246–47, 266CrossRefGoogle Scholar.
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51. Hutchinson, Thomas, The History of the Colony and Province of Massachusetts Bay, ed. Mayo, Lawrence Shaw (Cambridge, Mass.: Harvard University Press, 1936 ), 1:367.Google Scholar77. For another example, see Hutchinson on testamentary rules, ibid., 376. Hutchinson's contemporaries, Edmund and William Burke, portrayed early Massachusetts as a society and legal order divided against itself. The colony “imitated the Jewish polity in almost all respects; and adopted the books of Moses as the law of the land.” Yet these laws were “very ill suited to the customs, genius, or circumstances of that country, and of those times; for which reason they have since fallen into disuse.”Burke, Edmund and Burke, William, An Account of the European Settlements in America, 6th ed. (London, 1777), 147Google Scholar.
53. Robertson, William, The History of America (London, 1812), 4:182–83, 283–84, 258.Google ScholarRobertson published his account of the Spanish American empire in London in 1777. He composed histories of early Massachusetts and Virginia in the middle 1770s, but held off publication on account of the American Revolution. His son printed these works posthumously in 1796. I consulted the 1812 London edition. Robertson focused both on religious principles per se and on their expression through institutions. The Puritans' restriction to church members of officeholding, jury service, and the colony-wide franchise “contributed greatly to form that peculiar character by which the people of New England have been distinguished.”Robertson, , History of America, 4:291–92.Google ScholarWhile not a “philosophical” historian, the English dissenting minister Daniel Neal foreshadowed their tendency to sketch early Massachusetts as a Puritan society whose tenets so informed their institutions and governing practices that the colony's history revealed “a little commonwealth rising out of its first principles.”Neal, Daniel, History of New England, 2nd ed. (London, 1747), ii–iiiGoogle Scholar.
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64. Dawson, Jan C., “The Puritan and the Cavalier: The South's Perception of Contrasting Traditions,” Journal of Southern History 44 (1978): 597–614.CrossRefGoogle ScholarOne example of innumerable comparisons of New England and Southern cultures isBancroft's, George contrast of Puritanism and “chivalry” in History of the United States (Boston, 1841), 1:468–69Google Scholar.
65. Morse, Jedidiah and Parish, Elijah, A Compendious History of New England, 2nd ed. (Newburyport, 1809), 108.Google ScholarThe geographer and historian Jedidiah Morse was a key figurein fashioning New England's regional identity in the early national period.See Conforti, , Imagining New England, 79–122Google Scholar.
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