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.3
The chronology in the records is confusing, but it appears that the next General Court met on April 2.4 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.
The court “demanded” whether Spencer “would yet give glory to God in a free acknowledgment of his sinful and abominable filthiness in the bestiality.” Spencer responded that “he would leave it to God, adding that he had condemned himself by his former confessions.” The court found itself “abundantly satisfied” of Spencer’s guilt and the correctness of his sentence. It ordered that Spencer should be hanged “but that first the forementioned sow at the said place of execution shall be slain in his sight, being run through with a sword.”
This terrible sentence was carried out on April 8, 1642. In then traditional English fashion, Spencer was brought to the place of execution on a cart and allowed to deliver a gallows address to the waiting crowd. “After some pause, he began to speak to the youths about him, exhorting them all to take warning by his example how they neglect and despise the means of Grace, and their soul’s good, as he had done.” He was once again urged to acknowledge his crime, and he once again denied it. But when the halter was fitted to his neck, “he fully confessed the bestiality in all the circumstances.” Though “much pressed,” he would not speak further of his sin. With this, the sentence was carried out on Spencer and the sow, “leaving him a terrible example of divine justice and wrath.”
This horrifying case is a sad reflection on the credulity of mankind and the shortcomings of a legal system that had jettisoned any pretense of fairness to the accused.
Some traces of legality remained. The vague charges of bad character originally levied against Spencer were augmented (albeit at the outset of the trial) by the more specific charge of bestiality. The witnesses in the case testified in the presence of the accused. Spencer was allowed to speak in person to the tribunal deciding his fate, although that tribunal had little interest in hearing anything from him other than a confession. The sentence was decided according to a “rule” of (biblical) law. And there was a record of the proceeding.
Both the process and the outcome, however, bear little resemblance either to modern notions of justice or even to contemporaneous notions of English justice. As in the trial of Nepaupuck, there were no jurors or attorneys to be found. Once again, a high premium is placed on confession by the accused. But the preliminary hearing before a tribunal of magistrates that we saw in the trial of Nepaupuck has disappeared. The magistrates now visited the prison and, joined by the marshal, browbeat the prisoner into confessing.
The record of Spencer’s trial is of particular legal interest for the light it sheds on the use of the oath. The testimony originally given against Spencer was unsworn. After Spencer had heard this testimony and denied it, the witnesses were sworn and testified again, this time under oath. This practice stands in contrast to long-standing tenets of English law, requiring prosecution (although not defense) witnesses to be sworn. Perhaps due to the admonition of Matthew 5:34 and the memory of English legal repression directed against them, the early Puritan colonists were reluctant to use oaths.5 It appears that oaths were used only as a last resort, in cases where attempts to obtain a full judicial confession from the accused had failed.
3
THE EXPLODING GUN
Three years after the execution of George Spencer, the New Haven court considered a civil case.1 Although the participants would not have recognized the term, we would call it a product liability action.
In December 1645, Stephen Medcalfe appeared before the General Court and told the following story. When he was in the house of one John Linley, John’s brother, Francis Linley, had offered to sell him a gun. Medcalfe asked if it was a good one, and Francis answered, “Yea, as any was in the town.” The parties agreed on a price of seventeen shillings.
As Medcalfe was leaving, he questioned the sufficiency of the lock mechanism. Francis admitted that John Nash, the local blacksmith, had told him “she was not worth three pence,” but he added that Nash had also disparaged another gun that was “a good one for all that.”
Nash apparently knew more than Francis had let on. When Medcalfe went home with the gun and fired it, the breech (the end of the barrel) flew out and struck his eye, seriously wounding him. Medcalfe now wanted damages from Francis.
Francis responded that he had duly informed Medcalfe of Nash’s opinion. He added that he had also told Medcalfe that the barrel was thin and would not bear a new breech. He said that he had advised Medcalfe to scour the gun well “and if he tried her, to put but a little charge in her.”
Unfortunately for Francis, he had previously been examined before Thomas Gregson, a New Haven magistrate, and his story at the trial was not consistent with what he had told Gregson. (We don’t know exactly what form this examination took, but it sounds like something more formal than a chance conversation.) The magistrate told the court that Francis had denied telling Medcalfe that the barrel was thin and would not bear a new breech.
Nash followed Magistrate Gregson. Nash testified that he had told Francis “it was a very naughty piece, not worth the mending.” He further told Francis that “the barrel at the breech was as thin as a shilling, cracked from the breech to the touch-hole and would not bear a breech.” Notwithstanding this advice, Francis told Nash to mend the firearm as well as he could. After he had mended it, Nash told Francis that he would not give three pence for it and “he would not discharge it for all New Haven, for it would do some mischief.”
Richard Myles testified that he had overheard Nash tell Francis of the gun’s “badness and unserviceableness.”
The focus of the trial finally turned to Francis’s brother, John Linley. John was asked “why he was taken with such a quaking and trembling” when Medcalfe was about to shoot. John denied any quaking or trembling. Thomas Clark testified about a conversation with John: John had told Clark that when he heard Medcalfe discharge the gun,