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The General Court

Until 1645, the General Court met in March, June, October, and December of each year; thereafter the December session was omitted.  During the first twenty years of the settlement, the election court was convened in March.  But by 1640, some people were living too far away from the town of Plymouth to ask the freemen to tramp through the snow and ice of a New England winter, and in 1642, the colony made a law that June would be the month of the court for elections.  The General Court was a judicial as well as a legislative body, and its records include judicial matters from the probating of wills to criminal trials for witchcraft and murder.  The procedure followed by the court in the disposition of judicial cases is unknown.  Undoubtedly the governor and the assistants sat as the bench, and the deputies may sometimes have acted as the jury.  But, more probably, juries of laymen were impanelled to hear a particular case or cases, and the deputies were excused altogether from judicial deliberations.  The evidence for this is, admittedly, fragmentary and consists only of the legislation guaranteeing trial under English common law procedures, and a law passed in 1649 directing that at the election courts, after the choice and swearing of magistrates, “the general ocations of the Country” requiring the presence of the deputies came next (PCR 11:56).

1636 Codification of Laws (part three)

As the Governor and Assistants, sitting as the Court of assistants, lost power, the General Court became the sole governing authority in the colony.  Consisting of the magistrates and town deputies, and in June including all the freemen who bothered to attend, the General Court governed without any legal restraint.  Not only was it the legislative and taxing instrument of the colony, but in addition it assumed responsibility for “the management of the greatest concernes of this Common Weale,” which covers quite a lot of territory.  Before 1672, the only check on its power was the requirement in the Bradford Patent that no law could be made repugnant to the law of England.  But this requirement could be, and was, ignored for, like Massachusetts Bay, Plymouth argued that “different circumstances” in America excused the colony from rigid adherence to English law (PCR 6:169).  Even the General Court, however, apparently recognised the dangers inherent in governing without legal restraint, and so in 1672 it enacted legislation which (so it was hoped) would limit the authority of future courts.  The first chapter of the Colony Book of General Laws printed that year contained a bill of rights: annual free election of the governor and assistants by all the freemen; justice and right equally and impartially administered; no person damaged but by virtue or equity of some express law; the right of all men to a jury trial; the right of the defendant to challenge the jury for cause; and in a capital crime, the right to peremptory challenges and the prohibition of a death sentence without the testimony of at least two witnesses.  Most of these rights the Pilgrims had brought with them from the Old World.

1636 Codification of Laws (part two)

Nevertheless, the 1636 legislation was an important milestone, for no records now extant indicate that written law had earlier guaranteed a check on the magistrate’s authority.  Further curtailment of magisterial power followed when in 1639 the governor and assistants lost the right to control the granting of land.  Seven years later the General Court ordered the governor and assistants, when they sat as a court, to limit themselves to judicial concerns (PCR 11:54).  As the governor and assistants sitting in the Court of Assistants lost power, the General Court became the sole governing authority in the colony.  Consisting of the magistrates and town deputies, and in June including all the freemen who bothered to attend, the General Court governed almost without legal restraint.  Not only was it the legislative and taxing instrument of the colony, but in addition it assumed responsibility for “the management of the greatest concerns of this Common Weale” (Book of General Laws [1672], 15).  Only the General Court could make war or enter an alliance; after 1640, it controlled the distribution of land; through its required approval of men desiring to become freemen, it supervised the granting of the franchise.  Indeed, so extensive were its powers that it had the right to change the basic form of government, and it did so in 1685 when it established a county system.  Not surprisingly, the magistrates resented the lessening or curtailing of their powers.  When the freemen asked the governor and assistants to turn over control of the colony lands in 1638, the magistrates (principally Edward Winslow and William Bradford) dragged their heels.  Seven years later, Winslow bitterly informed John Winthrop, “But we are so many (since we followed your example in one particular, which we too late repented) to consult, as ‘tis very hard for any to say what will be done, though he should know what is most wholesome for us.”  Bradford, too, felt dissatisfaction, but he and his colleagues always seemed to have the good sense to yield when they had to.

1636 Codification of Laws (part one)

A majority of the early settlers apparently agreed that responsibility for governing the plantation rested with the governor.  In March 1623, when Bradford asked the General Court for a decision on policy towards the Massachusetts Indians, the Court in turn referred the question back to the Governor and his advisers (basically saying, “Do what you think is right”: see Winslow, Good Newes from New England, ch. 5 [Appleton Books ed., p. 43]).  Lyford and Oldham had tried to stir up a rebellion in 1625, but failed when a majority supported Bradford.  No evidence exists of any further challenge to Bradford’s authority for another ten years (!).  Plymouth evidently knew -- and trusted -- its governor.  But as settlement began elsewhere in the colony, and people arrived to whom Bradford was unfamiliar, some did begin to worry.  In October 1636, when the freemen called in General Court for a reading of the colony’s laws, “divers were fownd worthy the reforming, others the rejecting & others fitt to be instituted & made.” The Court ordered a committee of eight freemen and eight magistrates to prepare a revision: “four for the town of Plymouth, two for Scituate, and two for Duxburrow” (PCR 1:43).  The eight freemen elected were William Brewster, Ralph Smith, John Doane, and John Jenny (for Plymouth); Jonathan Brewster, Christopher Wadsworth (for Duxbury); and Anthony Annabale and James Cudworth (for Scituate).  The committee met in November, and in their sessions the magistrates and freemen agreed to limit the power of the governor and assistants.  Henceforth, the freemen were to choose a governor and seven assistants “to rule and governe the said plantacions within the said limits for one whole yeare and no more” (PCR 11:7).  But their authority to govern did not extend to the enactment of legislation.  All laws and ordinances of the colony were to be voted on in the General Court “by the freemen of the Corporacion and no other” (PCR 11:11).  Neither law altered accepted practise: since 1621, the General Court had annually elected a governor and assistants.  And since the institution of colony records in 1633, the Court of Assistants, which consisted of the governor and the seven assistants, had not enacted legislation.

Magistrates

As a first step in organizing the government in 1620, those original settlers who concerned themselves with this effort convened and elected several "Assistants" and John Carver as the first Governor; this took place in Plymouth Harbour before the Mayflower departed for America. Carver died the next year, and William Bradford was elected as the next Governor and remained in that office for decades. These officers were elected again in each year by the General Court, which was convened on a fairly informal basis in the earliest years of the Colony. None of these officials were trained in the law, and there were no lawyers present in the Colony in these early decades.  The Governor and Assistants operated, through the Court of Assistants (also called the "Counsell"), to handle all matters on a subject-by-subject and case-by-case basis. They did not have the authority to enact comprehensive laws and ordinances, but issued orders on a limited array of subjects actng as the Court of Assistants. Only the General Court, attended by voting freemen, had the authority to enact such legislation, and it did not do so in a comprehensive manner until the codification of laws in 1636 (PCR 11: 7, 11) -- more on how, and perhaps more interestingly, why that happened tomorrow.

Establishment (part two)

Perhaps because Plymouth never progressed beyond being a poor, agrarian outpost, its religious institutions proved unable to maintain themselves without the aid of the state. The inhabitants of Rehoboth, for example, found it necessary to petition the General Court “to assist them in a way according to the orders of other colonies about them” in raising money for a minister. The signers of the petition alleged that the nonsigners contributed nothing to the church. Initially, the matter was resolved on a voluntaristic basis, when the town's magistrate promised that, if petitioners would pay their share of the church's cost on the basis of value of their estates, the nonsigners would pay theirs or he would personally make up the difference.  But elsewhere, the magistrates had to turn to more coercive approaches. When the town of Marshfield petitioned for help in supporting the ministry, the General Court sent Miles Standish and John Alden to call a town meeting and “signify unto them the Court's desire is, that the inhabitants of the said town would take notice of their duties so as to contribute according to their abilities freely to the maintenance of the minister.” Two years later, in 1657, the General Court by statute declared that every town was “engaged” to “the public worship and service of God” and authorized the levy of taxes for that purpose. And, two years after that, outright coercion was applied to the town of Yarmouth, when the General Court directed the calling of a town meeting so that “each particular man will freely engage towards” support of the minister. This time, however, the court was explicit when it provided that, if everyone did not “freely engage,” four men would be chosen to levy on those who refused to contribute, and the constable directed to distrain their goods. With this 1657 act and its subsequent enforcement, Plymouth was well on the path toward a religious polity nearly identical to that of its neighbour, Massachusetts Bay.

Adultery

Another sexual crime prosecuted with some frequency was adultery. Death was the official penalty for adultery only in New Haven, although there is no record of it ever being inflicted; elsewhere adulterers received lesser punishments. For example, a married woman in Plymouth who committed “uncleanness” with an Indian was only whipped at a cart's tail and required to wear a badge, while there is no record of the outcome of two other Plymouth cases — the first, in which a man was accused of “lascivious carriage” in grabbing a married woman's clothes and “enticing her by words, as also by taking out his instrument of nature that he might prevail to lie with her in her own house,” and the second, in which a woman was presented for the “sin of fornication with her father in law.”

Fornication (part two)

Single men also were prosecuted for fornication, and a man would be required to support a child he was accused of fathering “if it shall appear to be his.” But many prosecutions encountered difficulties. If a woman failed to prosecute a man, he would be “cleared.” An accused father also was entitled to a trial by jury if he demanded it, and the courts treated men accused of fornication fairly and were careful not to convict the innocent. The judiciary's sympathy for men emerged with special clarity in the weird case of John Uffoote, who, after being divorced from his wife for “insufficiency,” managed to get Martha Nettleton pregnant. Although “he was sorry for his sin,” he was now convinced that he would not have suffered from impotence “if his wife had carried it toward him as she ought”; “finding the need of that help” from Martha, he “was by the power of temptation and corruption in his own heart overcome” and accordingly sought the court's permission to marry Martha. Although the court found “it is a strange thing that after all this he should miscarry in this manner,” it allowed John and Martha to marry after fining both of them. Judges were much less sympathetic to women, as, for example, when Martha Richardson testified that a man unknown to her impregnated her after she had passed out in a fainting fit and the court ruled that it “could not but judge her guilty, both of known fornication and continued impudent lying, believing that no woman can be gotten with child without some knowledge, consent and delight in the acting thereof.”

In the case of the Plymouth colony, one factor always in the background was the need for population growth.  The colony was singularly unsuccessful in attracting immigrants and settlers; there was a need to balance the obligation to punish crime and sin and thus support the civic and moral foundations of society, against the pressing need for more people to survive.

Fornication

The eradication of sin was seen as the goal and role of both ecclesiastical and civil authorities. A sin prosecuted with great frequency was fornication — a sin that, in the words of New Haven magistrates, “shuts out of the kingdom of heaven, without repentence.” This was both a sin and a crime, as it not only defiled the perpetrator and the community, but ran the risk of a child born out of wedlock becoming a burden on the community’s already tenuous resources.  Large numbers of single women were punished for getting pregnant, and many young couples prosecuted for having a child less than nine months after they were married. In New Haven, a defendant and his wife were whipped “for their filthy dalliance together”; two servants were prosecuted “for diverse unclean filthy dalliances”; and a third servant whipped “for defiling himself by diverse unclean passages with one of his master's children.” Similarly, in Plymouth a young couple was whipped “for unclean practices each with other.” On the other hand, when Jane Powell explained that she had committed fornication with an Irish servant out of “hope…to have married him” and thereby escape her “sad and miserable condition by hard service,” the Plymouth court ordered her “cleared for the present” and sent her home to see if she was pregnant.

On 3 March 1662/3, Elizabeth Soule (daughter of the pilgrim George) and Nathaniel Church were fined £5 for fornication.  Elizabeth Soule thereafter sued Nathaniel Church for failure to marry her and won a partial judgement of £10 and costs in October 1663.  The charge of fornication does not necessarily imply that the woman was pregnant; the fact that Nathaniel Church refused to marry Elizabeth Soule, and was not required to provide any child support or give any money to Elizabeth for any reason other than breach of contract, would indicate that there was a miscarriage, stillbirth, or an early infant death.  There is no record of any birth of a child to Elizabeth Soule at or around this time.  On 2 July 1667, Elizabeth Soule was again charged with fornication and was sentenced to be whipped; no male partner was named.

Establishment

The liberty of individuals to work out their own relationship to God had led Anne Hutchinson, Roger Williams, and others to settle Rhode Island, and accordingly, they kept their churches entirely distinct from their government. Likewise, the leaders of the Plymouth colony strove to set up churches independent of government. Even more than the founders of Rhode Island, the Pilgrim fathers fit within a broad separatist tradition that directed true believers to keep themselves and their churches apart from the state and from state‐supported churches, which by their inclusion of all subjects necessarily comprehended nonbelievers and other sinners. Rhode Island succeeded over time in maintaining the separation of church and state; Plymouth did not. Religious taxes were never imposed in Rhode Island, and the judicial records of the colony contain none of the cases of excommunication, schism, and subordination of the clergy that occurred in Connecticut and Massachusetts. Probably the ministers possessed less wealth.