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CHAPTER 1
THE INDIAN'S NAME
One day after the New Haven court system was organized, the colony made its first arrest and initiated its first case. This case cannot be fully appreciated without some understanding of the extremely hostile relationship between the European colonists and the Native Americans residing in the area at that time. Between 1634 and 1638, these two groups waged a war known in U.S. history as the Pequot War.
In 1637 an Englishman named Abraham Finch had been killed in Wethersfield, then part of the (separate) Connecticut Colony. A Quinnipiac (the English name for the Renapi, an Algonquin tribe in Connecticut) man named Nepaupuck was accused of his murder. Finch was a casualty of a deadly raid on Wethersfield during the Pequot War. The war had formally ended on September 21, 1638, with the Treaty of Hartford, but tensions remained high among the English and Native populations. The Pequots had lost the war; by the end, about seven hundred Pequots had been killed or taken into captivity. Hundreds of prisoners were sold into slavery in the West Indies. The conflict had embroiled the many tribes in the area including the Niantic, Mohigg, Naragansett, Montauk, and Pequot.
On October 26, 1639, a man calling himself Nepaupuck appeared in New Haven "of his own accord" and, "with a deer's head upon his back," presented himself to New Haven's newly appointed magistrate, Theophilus Eaton. Whether he was, in fact, Nepaupuck was to be the central question in the case. For now, we'll call him the prisoner. The reference to the "deer's head upon his back" is one of the only references to attire in any of the records, so it seems significant — though we don't know whether this detail was to indicate the stature of the man or his difference from the Europeans, or both.
Robert Seely, the colony's newly appointed marshal, made his maiden arrest by apprehending the prisoner on a warrant and tying him up. Seely had been a neighbor of Finch's in Wethersfield and was second in command in the Pequot War. The arrest was anything but routine. Aided by a second Native American, the prisoner attempted to escape. The attempt was unsuccessful. He "was again taken and delivered into the magistrate's power, and … kept in the stocks until he might be brought to a due trial." The period of pretrial detention turned out to be a couple of days — short by modern standards but a long time to spend in the stocks, hinged wooden boards that locked his feet in place. In the meantime, Seely's deputy whipped the accomplice who had aided the prisoner.
Two days later, the colony witnessed its first judicial proceeding when the prisoner appeared before the New Haven magistrate and his deputies. The idea seems to have been that the judges would investigate the case and decide whether to refer it to the colony's General Court for trial. In procedural terms, this was roughly analogous to a modern preliminary hearing, in which a court determines whether there is probable cause for a criminal case to proceed to trial. But the proceeding here seems to have had two somewhat different purposes: to examine witnesses and to persuade the prisoner to admit his guilt.
The magistrate and his deputies examined an unspecified number of Indians; their names and tribal affiliations are not given in the record, so we do not know if tribal allegiance motivated them to testify against Nepaupuck or on his behalf. These witnesses told the judges that the prisoner had murdered one or more Englishmen, cut off their hands, and presented the severed hands to a Pequot sachem, "boasting that he had killed them with his own hands."
At this point, a witness intending to help the prisoner entered the room. The witness was the prisoner's kinsman, Mewhebato. As recorded by the court, Mewhebato's testimony did not go well. "At first he pretended ignorance, but with a distracted countenance, and in a trembling manner. Being admonished to speak the truth, he did acknowledge him guilty according to the charge the other Indians had before made."
Now it was the prisoner's turn to testify. The other Indians withdrew, and he was brought in and examined. The question immediately turned to just who he was. He "confessed that Nepaupuck was guilty according to the tenure of the former charge, but denied that he was Nepaupuck."
At this point, Mewhebato was once again brought into the room. After "some signs of sorrow," Mewhebato charged the prisoner "to his face that he had assisted the Pequots in murdering the English. This somewhat abated his spirit and boldness." Another Indian was brought in and said that he had personally seen the prisoner, whom he called Nepaupuck, murder Abraham Finch in Wethersfield. Finally, the rest of the Indians were brought in. They too said that the prisoner was Nepaupuck and that he had murdered one or more of the English.
At that point, the prisoner, "being by the concurrence of testimony convinced, confessed that he was the man named Nepaupuck." He further "boasted that he was a great captain, had murdered Abraham Finch, and had his hands in other English blood. He said he knew he must die and was not afraid of it, but laid his neck to the mantle-tree of the chimney, desiring that his head might be cut off or that he might die in any other manner that the English should appoint." At this point, he "was returned to the stocks, and as before a watch was appointed for his safe custody."
The General Court met the next day. The trial before this court was more summary than the hearing before the magistrates. The prisoner was "brought to the bar and examined as before." He reverted to his original story. He was not the Nepaupuck who had committed the murder. But, once again, the other "did accuse him to his face." The prisoner then "confessed that he had his hand in the murder of Abraham Finch, but yet he said there was a Mohawk of that name that had killed more than he." At this point, another Indian "affirmed to his face" that the prisoner had killed a number of other men as well. The prisoner was now asked "if he would not confess that he deserved to die." He replied, "It is weregin."
We don't know what "weregin" means; early historians of the New Haven Colony suggest that it means "It is known" or "So be it." The court was satisfied. Having "such pregnant proof," it "proceeded to pass sentence upon him according to the nature of the fact and the rule in that case, he that sheds man's blood, by man shall his blood be shed." The convicted man's head was cut off the next day and pitched upon a pole in the marketplace.
* * *
This brief tale with its bloody conclusion arises from a dramatic clashing of cultures. The opening scene is cinematic and tragic. A seventeenth-century Native American, with his customary religious beliefs and attire, confronts a newly arrived group of European settlers professing the standards of the Bible. The settlers prevail, and the Native American ends up with his severed head pitched on a pole in the settlers' marketplace.
The underlying legal questions raised by this proceeding are equally compelling. By the standards of modern criminal trials, the proceedings here were stunningly inadequate. To begin with the most obvious shortcoming, there was no jury to be found, in spite of the fact that the right to trial by jury had already been established as a cornerstone of English justice for centuries. The "court" had no trained judges. It was, instead, an assemblage of the leaders of the local theocracy, elected to that position a couple of days before and presiding over their maiden case. There were no attorneys. There was not even legal jurisdiction in the modern sense. The murder that was the subject of the trial had occurred in Wethersfield, which was part of the (separate) Connecticut Colony. A modern court, hearing these facts, would simply send the prisoner to the jurisdiction where the crime had been committed.
At first blush, we have something closer to the proverbial judgment of Solomon than to a trial in the modern sense. Everyone knows the story of Solomon and the baby (1 Kings 3:16–28). Two prostitutes each claim to be the mother of an infant. The king hears them out and says, "Bring me a sword." He orders the child divided in two, with half given to each claimant. The false mother thinks this is just fine. The real mother pleads for the child's life. By hearing both sides, without benefit of jury or counsel, the truth becomes manifest.
The judges professed themselves to be biblical men and would doubtless have been flattered by the comparison to Solomon, although it seems what was really at work can be compared to a military tribunal exercising the colony's need to make an example of the accused murderer. Yet there are traces of actual law peeking through the underbrush.
There is biblical law, to start. The punishment meted out is, we are told, expressly dictated by "the rule in that case," namely, "Whoso sheddeth man's blood, by man shall his blood be shed" (Genesis 9:6). This use of biblical law conforms to a resolution adopted by the colony a few months previously that "the Scripture holds forth a perfect rule for the direction and government of all men."
But there are traces of nonbiblical law as well. The court, after all, called itself a "court," and there was plainly an attempt to give both the preliminary proceeding and the ensuing trial some form of legality. The prisoner was arrested on a "warrant," although we don't know who signed the warrant or what it said. There was a formal "charge." The accusers confronted the prisoner "to his face," a privilege famously denied to Sir Walter Raleigh in England earlier in the same century. Each tribunal heard the prisoner speak in person. And the proceedings were officially recorded in notes that we can read today.
What we have is a new form of trial. It isn't the trial by jury mandated by the English law of the time. It's nothing like the elaborate legal proceeding required by modern American law. And it's not a "biblical" trial either. We have instead a newly improvised proceeding created to fit the felt needs of the newly founded colony. As we examine more cases, we'll see how this experiment in legal procedure developed.
CHAPTER 2
THE PIGLET'S PATERNITY
The colony had to wait more than two years before its second recorded trial occurred, but when it came, it was a doozy. On February 14, 1642, a planter named John Wakeman informed the magistrates that a sow he had recently purchased had given birth to a "prodigious monster." The monster had been born dead, but Wakeman brought its body for inspection. The dead piglet was vividly described: "It had no hair on the whole body, the skin was very tender, and of a reddish white color like a child's. The head was most strange. It had but one eye in the middle of the face, and that large and open, like some blemished eye of a man. Over the eye, in the bottom of the forehead, which was like a child's, a thing of flesh grew forth and hung down. It was hollow and like a man's instrument of generation. A nose, mouth, and chin deformed, but not much unlike a child's. The neck and ears had also such resemblance."
The most fateful attribute of the dead piglet, however, was a resemblance (or so it was thought) to one George Spencer, formerly a servant to Henry Browning, the man who had sold the sow to Wakeman. Spencer, as it happened, had only one good eye. His other eye was deformed, "and his deformed eye being beheld and compared together with the eye of the monster, seemed to be as like as the eye in the glass to the eye in the face."
Ten days later, on February 24, Spencer was "examined concerning this abomination." He understandably denied paternity of the deformed piglet. The New Haven magistrates, however, committed him to prison "on strong probabilities of this fact." That same evening, one of the magistrates, Stephen Goodyear went to the prison where he found Spencer talking with two other men. Goodyear asked Spencer "if he had not committed that abominable filthiness with the sow." Spencer denied it. Goodyear then asked whether Spencer noticed his likeness in the piglet. Spencer was silent at first but then asked the magistrate whose sow it was. At this, Goodyear apprehended "some relenting" in the prisoner and reminded him of the scriptural admonition "He that hides his sin shall not prosper, but he that confesses and forsakes his sins shall find mercy" (Proverbs 28:13). Goodyear asked Spencer if he wasn't sorry that he had "denied the fact which seemed to be witnessed from heaven against him." At this, Spencer said he was sorry and confessed that he had done it.
The next day, both New Haven magistrates went to the prison "with divers others," urging Spencer to give glory to God and freely confess his sin. Spencer initially denied wrongdoing, but Robert Seely, the marshal, reminded him of his previous confession. At this point, Spencer confessed again. He said that while he was working in Browning's service, "the sow came into the stable, and then the temptation and his corruption did work," whereupon he did the wicked deed.
Spencer was now attracting attention in high places. On February 26, Theophilus Eaton, the governor of the colony, andJohn Davenport, the minister of the church, visited Spencer. In the presence of these august persons, Magistrate Goodyear questioned Spencer "more particularly concerning the bestiality, namely how long the temptation had been upon his spirit before he committed it." Spencer answered that "it had been upon his spirit two or three days before." Asked about his prayer habits, he responded that he had not prayed since he came to New England four or five years ago. He said that he had been in the sty with the sow about two hours about six o'clock in the evening, "when the sun was set, and the day light almost shut in."
Following the interview, Spencer was charged "with a profane, atheistical carriage, in unfaithfulness and stubbornness to his master, a course of notorious lying, filthiness, scoffing at the ordinances, ways, and people of God."
The next day, a Sunday, Spencer "caused a bill to be put up, entreating the prayers of the church to God on his behalf, for the pardon of the sins he had committed and confessed."
Three days later, on Wednesday, March 2, Spencer was brought to trial before the General Court. The vague list of charges pending against him was now augmented by a more specific charge: bestiality. The court urged Spencer once again "by confession to give glory to God." Spencer declined to do so. Instead, we are told, "he impudently and with desperate imprecations against himself denied all that he had formerly confessed."
Witnesses were called. Marshal Seely affirmed that Spencer had dictated the Sunday bill asking the prayers of the church "for the pardon of that bestiality." Ezekiel Cheevers affirmed that on Monday, Spencer told him that "the Lord had given him a sight of his sin, and he hoped he would let him see it more." Richard Malbon affirmed that Spencer had "confessed the fact to him." Malbon had helpfully directed Spencer to Leviticus 20:15.Spencer told the marshal that the passage had "struck like a dagger to his heart."
William Harding, a friend of Spencer's, "testified to the prisoner's face in court" that Spencer had told him that "Thomas Badger's sin was worse than his, for Badger lay with a Christian, but himself the prisoner lay but with a rotten sow." Other witnesses testified that Spencer had confessed to them as well.
Spencer was now asked what he had to say for himself. He responded that "the witnesses did him wrong and charged things upon him which he had not spoken." Given this response, the court — although "abundantly satisfied in the evidence" —"began to examine the witnesses upon oath." After four witnesses had confirmed their former testimony "and others were ready to do the like," Spencer "stopped the course." He admitted that he had made the confessions to which the witnesses had testified. But he "obstinately and impudently persisted to deny the fact."
With this evidence before it, the court found Spencer "guilty of this unnatural and abominable crime of bestiality, and that he was acted by a lying spirit in his denials." By the "rule" of Leviticus 20:15, both the prisoner and the sow were sentenced to death.
The execution was not carried out immediately. Instead, the court ordered the time of execution and the kind of death to be delayed until the next General Court. In the meantime, the New Haven authorities wrote to Massachusetts and other places for advice as to what should be done with the prisoner.
The chronology in the records is confusing, but it appears that the next General Court met on April 2. Spencer was once again brought forth blinking from the prison to face the tribunal. The court "demanded whether he would yet give glory to God in owning his guilt in that loathsome sin of bestiality." Spencer, however, "retained his former obstinacy" and "peremptorily denied it." At this point, two of the witnesses in Spencer's original trial "gave in evidence in court to his face" that, after his sentencing, Spencer "had fully confessed the fact to them." After hearing these witnesses, Spencer acknowledged his confessions. When asked why he continued to deny the crime, he answered it was "because he neither knew heaven nor hell." Two additional witnesses then testified that Spencer had given postsentence confessions to them.
(Continues…)
Excerpted from "The Case of the Piglet's Paternity"
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Copyright © 2015 Jon C. Blue.
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