A number of my recent articles have been directly or indirectly related to the increasing number of people in America who have been claiming that America would be less violent if religion played a stronger role in the daily lives of its citizens. I have questioned this claim on a number of different levels, but this week I'd like to take a slightly different tact.
As leaders and pundits of the religious right are fond of pointing out, there was a time in America's history when religion did play a greater role in the lives of American citizens. Unfortunately, it wasn't quite the role which is commonly assumed. At the time of the American Revolution, only about 14% of the population was "churched," which is to say that only that amount went to church on a regular basis. For private citizens, then, religion did not play as strong a role as modern religious leaders would have us believe.
However, it is nevertheless true that many more of the laws at the time reflected a distinctly Christian bias. America was not very diverse in any sense, especially religiously. Although some colonial governments forbade compulsory religion, the day-to-day legal reality was different. The federal constitution later also mandated a certain amount of government neutrality towards religion, but that was rarely followed in practice. So we have before us a rather good opportunity to examine what it was like when Christian morals and Christian assumptions dominated the legal landscape, even though regular adherence to organized Christianity was not as strong as it is today. What was it like? Is it something that America - or indeed any modern nation - should aspire to?
Dominance of Religion
As previously stated, the legal context of the American colonies was dominated by specifically religious assumptions. It is important to understand that colonial life was predominantly village life - people lived in insular rural settings where a few powerful ideas about God, social order and punishment held sway. Concepts of hierarchy and subordination also played strong roles, and they will become recurring themes here.
We must also keep in mind that although English common law played a role in colonial criminal justice, the worldview and ideology of colonial leaders influenced ideas of justice in profound ways. Laws and legal customs tended to mirror what leaders and magistrates thought about the nature of what was good, true and right. And for a long time, those elites were largely religious leaders - obvious examples being the Puritans in Massachusetts and the Quakers in Pennsylvania. Distinct legal cultures were thus created in the colonies - although most strikingly in the Puritan north.
The common people may have been mostly unchurched, but the leaders were explicitly religious in their orientation. Although many people came to the colonies in search of economic opportunities, many others - including those who would go on to lead some of the colonies - were looking for new ways to serve God, create a godly paradise, and build a new society which would be based on what they considered the word of God.
It isn't a coincidence that modern religious leaders and politicians who pander to the religious right explicitly claim that they are after the same thing. The early colonial leaders looking to build godly societies quite simply failed - forces beyond their control, like technology and the brute physical facts of the continent - eventually undid them. But despite this modern fundamentalists and evangelicals are inheritors of the same religious traditions, so they are aiming for similar goals. They aren't aware that history passed their ideology by about 200 years ago.
Religion and Crime
Legal codes in the colonies - and especially in the Puritan north - served as enforcement arms of religious orthodoxy. For this reason, the codes themselves cannot be understood without also understanding the basic religious doctrines underlying them. It cannot be ignored even for a minute that the colonial system of justice - designed largely to achieve a more godly society - was almost entirely paternalistic in nature. In a paternal society, the community is modeled after the ideal of a patriarchal household. Community leaders acted as stern fathers to the children God had entrusted to their care. Members of the community were supposed to be taught God's paths for their lives and brought back into the fold when they strayed - but the rod was not spared. Courts, like fathers, existed to enforce discipline and obedience. This image of family and government are not too far off from what modern evangelical leaders like to preach.
And while magistrates and religious leaders made the laws, the burden of those laws fell almost entirely on the shoulders of the lower classes: slaves, servants and children. Colonial society might have been less stratified and hierarchical than English society, but it still had a long way to go. Opportunities for advancement existed, but only among white men.
Even just being a bad citizen was itself a crime. A refusal to conform to the standards of the community meant refusing to conform to the standards of virtue handed down by God. Little or no distinction was made between a "sin" and a "crime." Piety and religion dominated the lives of religious leaders, and they in turn dominated the lives of other colonists. Since religion was the cornerstone of the community, especially in some areas, it became the duty of the law to uphold, encourage and certainly enforce what was regarded as the One True Faith.
Government was regarded as the "instrument of God on Earth" - and the basic criminal code was not regarded as having been made by men for men, but made by God for men. It should be remembered then that when someone today claims that their religion is necessary for the establishment of a moral and peaceful community, they are also calling for their religion to be enforced by the government in the interest of maintaining and stabilizing such a community.
Religious messages of the above sort can be found on almost every page of the "Laws and Liberties of Massachusetts" written in 1648. Anabaptists, for example, are condemned as "Incendiaries of Common-wealths & the Infectors of persons." If these misguided miscreants remained "obstinate" in their heretical beliefs, they were likely to be banished from the colony. Banishment was a common punishment - when a person's beliefs or acts threaten to undermine the social order and they refuse to repent, then expelling them from the group was the only option. The most common reason for banishment was some form of heresy, described as "tending to the subversion of the Christian Faith and the destruction of the soules of men."
Laws against Quakers were even worse than those against Anabaptists - they could be executed if they dared to return after having been banished. Quakers appear to have been especially feared as threatening to "undermine & ruine" the properly instituted authorities of the colony. Two Quakers were made examples of and hanged in 1659, but they weren't the only ones.
Blasphemy was another crime which merited swift and harsh punishment - as with the previous examples, any act which might undermine unquestioning faith as promoted by the local religious leaders was regarded as threatening to undermine general social stability. Blasphemers could, at court discretion, be put in the pillory, whipped, have his tongue bored out with a hot iron, or be forced to stand in the gallows with a rope around his neck.
Massachusetts was certainly not the only colony to expressly prohibit such things. A Virginia statute from 1699 was designed to eliminate "horrid and Atheisticall principles greatly tending to the dishonour of Almighty God, and...destructive to the peace and wellfaire of this...collony." A crime was committed whenever someone dared to deny "the being of God or the holy Trinity...assert or maintaine there are more Gods then one...deny the truth of Christianity..." and much more.
The Sabbath was naturally taken very seriously by colonial religious leaders. Sundays were reserved for praying and church attendance, even though church attendance was generally very low across the colony. Obviously this could only be enforced effectively either in a village community where it was obvious that people were not in church or in a tightly knit religious area. Most rural farmers would be more likely to treat Sunday like any other day, and no one would know otherwise.
Massachusetts, of course, was one place that enforcing Sabbath laws happened frequently. In Salem in 1668, John Smith and the wife of John Kitchin were fined "for frequent absenting themselves from the public worship of God on the Lord's day." There's no indication if they were absenting church services together and, if so, what they may have found to do that was more interesting. Profaning the sabbath was also a definite no-no. In Boston in 1656, Captain Kemble was forced to sit in the stocks for two hours due to "lewd and unseemly behavior" on the sabbath. His transgression consisted of having kissed his wife upon his return home after three years at sea.
Since crimes were sins and sins were crimes, the very concept of a "victimless crime" simply didn't exist back then. This is a concept which has been created in the 20th century as we have developed the idea of personal privacy. Any offense against the True God, even if it did not appear to affect anyone else, was automatically an offense against the community and against the principle of social order. Such threats had to be dealt with swiftly and harshly - God's punishment of Sodom and Gomorrah was ever-present in the minds of religious leaders who feared what might happen if they, too, did not work to enforce God's moral laws. For the Puritans, guilt was corporate in nature and so the whole group would suffer if even one member transgressed. Only by a very public punishment could the group both express communal disapproval for the acts and hope to escape punishment themselves.
That imagery hasn't faded in the past two centuries and is used even today by religious leaders who fear that their God will punish an entire nation when it tolerates individuals violating religious rules.
Legal codes, especially among Puritans, even made criminal offenses out of lying and idleness - not to mention the ever popular fornication, adultery and sodomy. One interesting idea to keep in mind when looking at all these laws is the fact that such regulations were obviously needed. If the colonists - and Puritans in particular - were completely sexually repressed and obedient robots, there would have been little to no need for the statutes which I quote. The fact that the religious leaders felt a need to explicitly condemn such acts means that at least some people were happily engaged in all manner of unseemly activities.
The people were obviously quite active sexually, although the court systems were just as obviously engaged in attempting to punish and suppress that sexuality. A study by William Nelson of seven Massachusetts counties between 1760 and 1774 found that almost 38% of all criminal cases involved fornication - and that wasn't even the only sexual offense prosecuted. Although most people probably did not transgress or at least not transgress too seriously, there was obviously a lot more going on than current evangelical leaders would have people believe. Even Puritan New England was perhaps more fun that is commonly imagined.
Courts and Justice
During this era of building a godly society, the court and justice system was radically different from what Americans experience today. Although leaders of the religious right have not explicitly praised the colonial systems, we must keep in mind that the social order which they are praising was based upon a very specific system of courts. Calling for the former also means calling for the latter - so it's worth looking at just what sort of court system a more Christian society might have. The best example, and one which is often used to day of a good Christian society, is probably the Puritans.
Justice in the Puritan colony was very inquisitorial in nature. Judges who presided over cases were not independent arbiters, but were instead political and religious leaders who had a personal stake in what went on. Although they were expected to be fair - and surely they could be - it must be kept in mind that in their roles as political and religious leaders, one of their primary duties was to maintain order and discipline. The law they passed naturally reflected these values, and so their court decisions would closely follow suit.
These judges firmly believed that they had a right, granted by God, to rule over their community and lead it down the path God had chosen for them. In the courtroom as well as outside in community life, they ran the show. It was rare to have a jury - and it never happened in New Haven, not even in death penalty cases. The purpose of a court proceeding was not so much to establish guilt or innocence - if it got to the point of a trial, it was only because the judge (who was also prosecutor) was convinced of guilt. In almost criminal trials on record, guilty was the final verdict.
The purpose of the court proceeding was to squeeze a confession out of the defendant and, hopefully, also repentance for sins. After all, in a godly society transgression of any law was automatically a sin. This, of course, was a task for religious elites and those responsible for the well-being of a godly society. Saints were given the task of presiding over the case of a sinner, not a lay jury. In fact, the mere request for a jury was itself a clear sign that the defendant was not ready to repent and would serve to make things worse.
These facts might lead to the conclusion that the trials were charades - and although that was probably true in some instances, it wasn't true in all. Trials were ceremonies of great social importance. Because the nature of the offense was not merely a legal transgression but instead of sin against God and the godly order established in His Name, a guilty verdict was not simply a cause for punishment. Instead, repentance and social reintegration of the sinner were primary goals of any trial. It was a sort of divinely sanctioned social theater where the rules of the community were public reaffirmed and the sinner brought back into the flock.
This could often serve the interests of the accused. When a judge is specifically looking for the accused to be submit to authority and repent of sins, then the accused can expect the judge to be patient and lenient. Another way of putting it is that the defendant knew that if he played his role correctly, then he could expect the judge to play his role correctly - and the judge's role was not to physically punish, but to extract a submission to authority.
Of course, physical reintegration was not always possible - the most obvious example being when the defendant was sentenced to death. In such cases, it was expected that the condemned would reinforce social mores not by returning to a godly way of life, but by playing the role of a deeply penitent sinner. It was especially good if they would offer some final confession or prayer reaffirming their faith in God and the community before they were killed.
Correction & Repentance
In this framework, what was being punished is only half the story - how crimes were punished was equally important. When reaffirming social order lies at the heart of criminal justice, punishment necessarily becomes a public affair. Punishment does not exist simply for the convicted offender, but instead also for the public as a whole. Like autocratic fathers, leaders made heavy use of shame and shaming to get across their message both to the criminal and to the others in the community. Both the criminal and the rest of the public were to be taught a lesson about what God wanted and what would happen if they dared to stray from God's path.
It should be noted that the idea of imprisonment is missing from colonial concepts of punishment. Incarceration and the penitentiary are wholly 19th century inventions and it had not occurred to colonial leaders that reforming and punishing a criminal might be achieved by segregating them away from the rest of the populace. On the contrary, the idea would likely have been met with derision, since it failed to incorporate the rest of the community. Private punishment only serves to affect the criminal, whereas very public punishment also serves social needs.
It is certainly no coincidence that many current evangelical leaders also call for a return to the use of shame when punishing people. Since they too wish to create a godly society based upon specific religious precepts, and so it only makes sense that they would wish to use the tactics of their ideological forefathers. But what was it like, and what sort of effect did it have?
The pillory, stocks and whipping were the most common sorts of public shaming and lessons taught to the public. In 1664, a runaway servant was brought to court in Maryland and alleged that he had been abused and not fed properly, but since the lower classes were not well regarded at the time he was whipped 27 times for having lied. Branding and letter wearing were also used with some frequency. In Connecticut in 1773, Alexander Graham was convicted of breaking into shops to steal food and was ordered branded with a capital B on his forehead. Bodily mutilation was also used regularly, with people's ears cut off for stealing or even just lying in court. In a such fashions anyone who did anything which the community did not like could be treated in a humiliating and inhumane fashion.
It wasn't justice, because that was not what people were seeking. It was supposed to be a lesson - but since it clearly did not prevent the same sorts of general petty crimes we have today, it obviously did not entirely serve that purpose. But even if it had, it was not something to be emulated today. These acts brand a person - sometimes literally - as an unrepentant sinner, not the sort of tactic we should be taking today.
Dealing in Death
Perhaps one of the more ironic issues involves the death penalty. The same political and evangelical leaders who call for emulating the days when the laws and the populace were more "Christian" are generally the same people who call for a more frequent use of the death penalty. The fact that the death penalty falls disproportionally upon the poor and minorities is, I am sure, quite irrelevant - and the fact that these same people are quick to call for clemency for white evangelical converts on death row is also, I am sure, merely coincidental. But oddly enough, the death penalty was used rather rarely in the colonies which modern evangelical leaders would like to emulate.
Although colonial leaders were prepared to execute people for sodomy and adultery, the fact of the matter is that this was a rare event. In some instances, sitting juries would refuse to convict guilty people simply because they did not want the death penalty imposed. The "Laws and Liberties of Massachusetts" of 1648 was closely modeled after Old Testament ideals of social order, and so included a death sentence for any child who "will not obey the voice of his Father or the Voice of his Mother," but there is no evidence that anyone was ever executed under this statute.
The power to pardon condemned criminals was also heavily used in some areas, particularly Pennsylvania. In that state, there were only 170 capital convictions up to the Revolution, and of those only 94 were actually executed - the rest were pardoned. This means that the execution rate was only 1 per year - too high for some people, I'm sure, but obviously quite a bit lower than some states today. In the 18th century over 50% of condemned criminals in New York state received some sort of clemency. Executions only became more common as one moved into the southern regions, and then the burden fell primarily upon slaves. It is worth wondering why contemporary evangelical leaders want to emulate earlier American religious communities in everything but their capacity for mercy and humanity.
Over the course of time, the above contexts obviously all changed. Towns grew bigger and more diverse. Traditional religious leaders lost much of their power and influence. Social order became gradually less dependent upon religious institutions and instead relied upon economic stability. In this way, crimes against property were given more attention than crimes against God. An example of this development can be seen in the attitudes towards fornication. Over time, almost all prosecutions were brought against women who became mothers to illegitimate children (and this was a bigger problem than many people might realize - even in the twenty years before the Revolutionary War, Concord Massachusetts saw one-third of all births occur out of wedlock). The justice system was not brought to bear against the sin of fornication so much as the absence of a responsible father. Instead of punishing a sin, the courts sought to find out who would be responsible - financially and psychologically - for raising the child.
This is very much where we are now - is there any reason to return? When people call for a more religious society where laws are more explicitly based upon their religious principles, we have a model of just such a system in our own history. We can examine it and determine whether or not it creates the kind of society we want to have. Do we want sins to be crimes and crimes to be sins? Do we want a justice system which is predicated upon maintaining community cohesion around fundamental religious principles? Do we want a government which is an instrument of God designed to regulate human conduct and keep it in accord with God's will? Was the colonial system of justice, when explicitly religious in nature, an improvement over our own? Did it more effectively prevent crime, maintain peace and establish an orderly community?
I cannot give any answer other than NO to all of the above questions.
Edmund S. Morgan. The Puritan Family: Religion and Domestic Relations in Seventeenth-Century New England.
Stephanie Coontz. The Way We Never Were: American Families and the Nostalgia Trap.