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.
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.1 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, and John 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 20:15.2 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