The English-American colonies were autocratic and theocratic, with a patriarchal system of justice: magistrates and religious leaders, sometimes one and the same, made the laws, and the burden of obeying them fell on the less exaltedâ€”the tradesmen, soldiers, farmers, servants, slaves, and the young. That burden could be weighty.
In his History of American Law, Lawrence M. Friedman wrote, "The earliest criminal codes mirrored the nasty, precarious life of pioneer settlements." A good example is the set of statutes imposed on Jamestown, the "Articles, Lawes and Orders Diuine, Politique, and Martiall for the Colony in Virginia," by the Virginia Company of London in 1611. They were, with some ...view middle of the document...
A second offense was punishable by a whipping and a third by six months of rowing in the colony's galleys. Which underlines the notion of the law as an arm of religious orthodoxy.
As Friedman says, an attempt to generalize about all the colonies during the 169 years between the founding of Jamestown and the Revolutionâ€”the number of years that passed between independence and Hiroshimaâ€”would be bootless. But common threads can be traced, and laws concerning religion, as well as the severity of punishments, are as good a place to start as any.
In the Puritan north a religious message leaps out from almost every page of the early criminal codes. Sin, of course, existed in the eyes of the beholders, and the eyes were everywhereâ€”as you might expect in small, inbred communities. Consider the scrutiny given to observance of the Sabbath. The law usually required churchgoing, and someone was always checking attendance. In early Virginia, every minister was entitled to appoint four men in his fort or settlement to inform on religious scofflaws.
In the early seventeenth century, Boston's Roger Scott was picked up for "repeated sleeping on the Lord's Day" and sentenced to be severely whipped for "striking the person who waked him from his godless slumber."
Virginia law in 1662 required everyone to resort "diligently to their parish church" on Sundays "and there to abide orderly and soberly," on pain of a fine of fifty pounds of tobacco, the currency of the colony. Colonial strictures on deportment in the pews long applied, even to children, such as in 1758 when young Abiel Wood of Plymouth was hauled before the court for "irreverently behaving himself by chalking the back of one Hezekiah Purrington, Jr., with Chalk, playing and recreating himself in the time of publick worship."
In l668 in Salem, Massachusetts, John Smith and the wife of John Kitchin were fined "for frequent absenting themselves from the public worship of God on the Lord's days." In l682 in Maine it cost Andrew Searle five shillings merely for "wandering from place to place" instead of "frequenting the publique worship of god."
And woe to the man who profaned the Sabbath "by lewd and unseemly behavior," the crime of a Boston seafaring man, one Captain Kemble. He made the mistake of publicly kissing his wife on returning home on a Sunday after three years at sea, a transgression that earned him several hours of public humiliation in the stocks.
But, of course, the codes concerned themselves as much with the secular as the divine. The laws, especially in New England, made crimes of lying and idleness, general lewdness and bad behavior.
Sex was of particular concern. Outlawed were masturbation, fornication, adultery, sodomy, buggery, and every other sexual practice that inched off the line of straight sex as approved by the Bible. The term "sodomy" was applied to homosexual behavior; "buggery" to bestiality.
Punishment for such serious sexual crimes could be severe. Thomas...