One Manner of Law, by Marilynne Robinson

Sign in to access Harper’s Magazine

Need to create a login? Want to change your email address or password? Forgot your password?

  1. Sign in to Customer Care using your account number or postal address.
  2. Select Email/Password Information.
  3. Enter your new information and click on Save My Changes.

Locked out of your account? Get help here.

Subscribers can find additional help here.

Not a subscriber? Subscribe today!

Get Access to Print and Digital for $23.99.
Subscribe for Full Access
Get Access to Print and Digital for $23.99.
August 2022 Issue [Essay]

One Manner of Law

The religious origins of American liberalism

Hugh Peters preaching from his pulpit © The Trustees of the British Museum, London

[Essay]

One Manner of Law

The religious origins of American liberalism
Adjust

After years of reading about the American Puritans, then reading the Puritans themselves, I am now convinced that our history could undergo a scrupulous reappraisal that would cause us to consider things in a radically new light. My work brought me to the subject obliquely, first through an attempt to contextualize the burst of very great literature that came out of New England in the nineteenth century, then through an attempt to understand the audience for whom Shakespeare wrote, those crowds of “groundlings” who have provided employment for legions of professors and journal editors by standing through performances of Hamlet and Lear.

In both cases the context can be called Puritanism—in Massachusetts, for obvious reasons; in prerevolutionary London, because the great political and religious controversies of the time played out in the sermons and pamphlets of dissenters and non-conformists, delivered to whomever could be reached in an increasingly literate public. Shakespeare’s histories dramatized Edward Hall, Raphael Holinshed, John Foxe, and other writers who addressed popular interest in the dynastic wars that lay behind the Tudor and Stuart regimes. I would be happy to defend the thesis that, in his treatment of this disastrous period, Shakespeare posed the crucial question of whether hereditary monarchy can produce legitimate government or fit and capable rulers. His conclusion, I would argue, is that it cannot. The crisis that England was approaching had everything to do with the legitimacy of monarchy itself. Persecutions under Mary I had sent dissenters to Geneva, where hereditary rulers had been expelled and the city governed as a republic since 1541. The Dutch had defeated Philip II and formed a republic in 1581, with the help of Englishmen who were sympathetic with the Dutch as fellow Calvinists.

This is all well known to students of the Reformation. Nevertheless, that nautical England, already strenuously involved in world affairs, would have no awareness of events on the continent, and of the ideas behind these events, is an assumption common to many interpretations of Elizabethan writers. It is nonsense to suggest, as some experts have, that Shakespeare could think only in terms of hierarchies and chains of being. But history has become so segmented that the English Renaissance and Reformation are treated as discrete phenomena, though they were perfectly simultaneous, and many writers and political figures important to both.

A similar dynamic is at play in the total disappearance of England’s Puritan Revolution from the study of American history, though the event was not only contemporary with early American settlement but crucial to it. The central figure in my argument is a man named Hugh Peter or Peters, a minister who served the church in Salem, Massachusetts, from 1636 to 1641. With some exceptions (John Winthrop, for example), the actual importance of Puritan figures to early America is inversely proportionate to the attention they have received and the degree to which their names are known to the general public, or for that matter to historians. Winthrop has appropriately been called a “forgotten founding father.” America has a great many of these forgotten founders, unacknowledged leaders who established the ideals of civic life that ultimately formed the system we call American democracy. I choose to focus on Hugh Peters because he is so utterly forgotten, and because things were true of him that were characteristic of colonial Puritans of his class. He was well educated, a Cambridge graduate; he had traveled widely in Europe, having served an English church in Rotterdam before coming to Massachusetts; he enjoyed standing among his international peers, reflected in his having met Gustavus Adolphus, the mighty king of Sweden; and he was a kinsman of John Winthrop.

There is no other word in English as effectively dismissive as “puritan.” Americans, even or especially historians, tend to treat the early New Englanders as dogmatists: narrow, pious simpletons. That their region and culture became a profoundly influential force in the modern world is for all purposes unacknowledged, except in allusions to Max Weber, whose bad little book deals with neither America nor Puritanism. Because of Weber, perhaps, the successes adumbrated in Winthrop’s phrase “a city on a hill” seem always to be associated with wealth and power, as opposed to the stratum of communal or political life that touches on justice and, yes, liberty. These elements in our history seem to be increasingly confounded by the force of cynicism, particularly the belief that wealth and power were all it was ever about. The word “puritan” brackets a crucial culture and period with a peculiar prejudice, the notion that it was ridiculous in its pretensions and in its provincialism. I may seem to overstate. There have been specialists in the field, certainly. But their work often illustrates and compounds the suppression or occlusion of this history. An entrenched habit of what must be called piety in the treatment of England by American historians obscures the context within which the determined non-conformity of the Puritans might be understood.

Embarkation of the Pilgrims, by Robert Walter Weir. Courtesy the Brooklyn Museum, New York

Almost fifty years ago, I learned by pure accident that a code of law was drawn up in Massachusetts in 1641 that substantially anticipated the Bill of Rights. I happened to read a letter to the editor in the New York Times that mentioned the Massachusetts Body of Liberties. I had a PhD by then and was supposedly an Americanist by training, yet I was learning of this for the first time. When I finally read these laws, I wondered why the narrative of American history did not begin with them. They long remained the basis of the Massachusetts legal system, which indicates that they were not simply an early burst of utopianism but an expression of an enduring political philosophy.

With all respect to Thomas Jefferson, I know of no reason to doubt that he read them, too. How else would lawyers prepare for drafting laws appropriate to a new country, if not by looking at the systems the various colonies had proposed for themselves? John Adams of Massachusetts played a dominant role in the convention that drafted the Declaration of Independence, in which the English king is charged with suppressing the work of colonial assemblies; certainly the work of those assemblies was of great interest to those gentleman revolutionaries, members of the political class whose intentions the king had scotched.

The attempt to retrieve the particulars of a life slighted by history is much complicated by the prejudices that suppressed it in the first place. While it is probable that Peters’s influence would have been strongly felt in these laws, the Liberties also reflected a consensus, likewise reflected in the Mayflower Compact, presumably, and urged onto the colonists by Winthrop as Christian charity. The code was ratified by the colony’s assembly.

If Hugh Peters is so little noted by history, how can one make the case that he was an important figure? A few unambiguous facts can be adduced. He left Salem for England in 1641 on business for the colony, was embroiled in the events of the emerging revolution, and stayed to serve the Puritan or Parliamentary side practically and spiritually until the revolution failed. For years he was a chaplain to Oliver Cromwell, and to the British Parliament. His importance to Cromwell is demonstrated in his having endured the ingeniously horrible and protracted punishment of half-hanging, burning, and dismemberment typically reserved for traitors and Jesuits.

A vanitas about the death of Charles I, by Vincent Laurensz van der Vinne after Wenceslaus Hollar, with the inscription “the king, farmer and beggar are all equal in death before God.” © Lawrence Steigrad Fine Arts, New York/Bridgeman Images

A vanitas about the death of Charles I, by Vincent Laurensz van der Vinne after Wenceslaus Hollar, with the inscription “the king, farmer and beggar are all equal in death before God.” © Lawrence Steigrad Fine Arts, New York/Bridgeman Images

He was and is accused of being a regicide, even of wielding the axe that killed Charles I—though there is no evidence for this. That he did help to create the circumstances that led to the king’s death is harder to dismiss. English history is full of stories of the deaths of kings, alongside their allies and kin. This is not what-about-ism. It is simply a nod to the fact that executions were central to regime change or consolidation for centuries, whatever anyone might say about the sanctity that hedges in a king. Charles’s trial was the true innovation in all this: due process and a jury of one’s peers were not rights extended to doomed royalty. The French Revolution followed this precedent more than a century later, trying Louis XVI as Citizen Capet. For the purposes of his trial, the English king had been Charles Stuart. The revolutions differ greatly, however, in the fact that the execution of Charles did not set off a violent purge of his family or supporters.

The huge convulsion called the English Civil Wars, or the Puritan Revolution, took place during the early settlement of British North America, and profoundly affected both the composition of the early colonial populations, north and south, as well as the laws, English and American, that shaped and governed them. Yet these wars remain a resounding silence in American history. The word “puritan” smothers what might otherwise be a natural interest in colonial New England as the most progressive society in the world at the time, and makes of the Cromwell period a dull tale of oppression, a historical dead end. I will suggest that Puritan America had a singular character of radical liberality because the Puritan colonies were revolutionary from their founding, created by the disruptions of the English wars and by the Interregnum or Commonwealth, the decades during which they were left to themselves by a government that was preoccupied with its own crises, and that would have been sympathetic to their aspirations in any case.

The prominence of Hugh Peters in Massachusetts and in Cromwell’s England suggests a relationship between “the two Englands” that was more than mere consanguinity. The Body of Liberties did not rise organically from a society based largely in subsistence farming with English common law as its default. Its concerns are broader than what a brief experience of life in the New World could have occasioned. It has the character of a constitution in that it defines the relationship of the individual to the state. It takes its authority not from royal assent or some Commonwealth equivalent but from its ratification by the colonial assembly and its indebtedness to biblical law.

John Winthrop’s famous sermon assumes that what happens in Massachusetts will be of interest to the world, at worst as a significant and conspicuous failure. The phenomenon of colonization was widespread, an important part of Europe’s emerging commercial and industrial systems. These “plantations” were sometimes havens for dissenters and places of exile for undesirables, slave labor making it all viable and profitable. In other words, colonies were not projects in which people placed exalted hope. Nor were they allowed the kind of latitude that could make them experiments in varieties of social order.

Two sets of laws bearing the king’s imprimatur, intended for the governments of Carolina and Virginia, make clear that the often invoked “liberties of Englishmen” were by no means extended to English colonials in principle or in fact. The year 1642 saw Parliament at war with the king. Assuming that the Massachusetts colonists were aware of what was happening in the homeland, of the protracted crisis that had raised profound questions about the nature and limits of royal power, we may also assume that they were not simply proceeding from a British model in creating their Body of Liberties. The British Petition of Right of 1628, drawn up by the House of Commons and submitted to the king the year before he dissolved Parliament, was a testament to this struggle, invoking Magna Carta to forbid taxation not agreed to by Parliament as well as imprisonment and execution without due process. In other words, it was addressed to specific abuses committed by Charles I.

What will the New World be? The Body of Liberties is meant to answer this question:

Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties and priveledges concerneing our Churches, and Civill State to be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction for ever.

The Fundamental Constitutions of Carolina—written by (or attributed to) John Locke, after the fall of the Cromwell regime—is a design for perfect feudalism, with social rank and authority corresponding exactly, in perpetuity, to the amount of land held by an individual. This would be determined by original grants, presumably, since land was to be unalienable, never to be bought or sold. Thus the social order would be permanently fixed. The landless, called “leetmen,” were to be leetmen through all generations, unable to leave their lord’s estate without his permission, having no appeal against his judgments. Since the colonies were agricultural, these leetmen, dealt with so curtly by the law, would make up by far the largest share of the population. One last category of person is dealt with in even fewer words: the law specifies that the authority of any white man over his black slave shall be absolute.

All this is as remote from the traditions of “English liberty” as could well be imagined, even granting the great importance of hereditary land ownership and the primacy of property in British law. This Constitution is indeed fundamental, as if prior to every moderating concession sought or won from King John or King Charles. The invented names of its castes—“landgraves,” “caziques” beneath them, and so on—uproots them from the system of traditional privilege associated with the ranks of British society. The degree to which the king felt beholden to custom or to Magna Carta, or felt the claims of any liberties inhering in his subjects, is thrown into question by this design for the society and government of the colonial South, Carolina at the time extending from Virginia to Florida.

An earlier set of laws known as Dale’s Code, written in England to govern a colony in Virginia, was furiously repressive, calling for whippings and executions for infractions of all kinds: death for missing church three times, death for speaking ill of the king. It is always hard to know how strictly laws are enforced, but the threat of these severities loomed over the colony from 1611 to 1619. Enacted under James I and invoking his authority, the code makes the point in less decorous terms that no rights protected anyone to whom the laws applied. These were not slaves in the usual sense, at least, nor were they convicts, granting that colonials were generally not the cream of society, but they were British subjects, exposed to the harshest penalties for minor infractions. There is no mention of trial or appeal.

My point is to draw attention to the great difference between the laws made by the Puritan colonists in this period and those devised and approved in London. These codes demonstrate that the New World might as well have been another planet. The laws for Virginia and Carolina swept away the impediments to authority represented in the claims of traditional rights. Meanwhile, the Massachusetts Body of Liberties, from the title onward, is an assertion of these and other rights, and is based largely on biblical law: a profounder source than lex terrae, which was a fairly elusive standard at best. The severity of the English laws in matters of religion has no equivalent in the Massachusetts Body of Liberties. The lens of history inverts. The Puritans are “remembered,” so to speak, for harsh dogmatism, but it is the Church of England to which these Virginians had to go on pain of death.

Stony Ground, by Edwin Austin Abbey. Courtesy the Brooklyn Museum, New York. Gift of Mr. and Mrs. Abraham Adler

The very humane character of the Body of Liberties, when it is recognized at all, is generally seen as reflecting its heritage in English common law. But where do I look to find this important heritage recorded, defined, and explicated? The 1911 Encyclopedia Britannica gives the subject short shrift: common law is simply regional practice in various parts of the country. No case law is offered, no general principles. Compare this to the Britannica’s article on poor law, still in force then and painstakingly described over a number of pages. And compare this important system for regulating the lives of workers—another name for “the poor”—with any idea you might have of the civil protections of common law.

This is all to say that the aspirations expressed in humane law should not be referred to a rightfulness already achieved in certain quarters and sustained unreflectingly as second nature. The objections made to royal policies in the Petition of Right are said to have influenced articles of the American Constitution. Similarities between the two could also reflect their writers’ experiences with abuses of power in the one hundred and sixty years that intervened between them.

I may seem to digress, but in fact I hope to anticipate the minimizing of the significance of the Body of Liberties, the implication that there was no essential breach involved in its creation, that the colonists were groping toward a maturity long enjoyed in the mother country. This is one basis for the common idea that the American Revolution was not as revolutionary as we once believed.

Just as co-religionists were claiming power in England, Massachusetts set about creating a legal framework for itself based on the consent of the governed: the Body of Liberties acknowledges no other interest in the nature of its government than the colony itself. Massachusetts was the product of the Puritan Revolution, the Commonwealth writ small. Its characterizing institutions were churches whose polity was radically democratic—autonomous, self-governing congregations that elected their clergy and could cast them out. Christendom had sanctified hierarchy in its church order for centuries. The Puritan church sanctified its absence.

The difference between early colonial law and British law is made clear in the prohibition on the one hand of bodily punishments that are inhumane, barbarous, or cruel, and on the other hand, the sort of death that would be suffered by Peters. The prohibition against delayed burial of an executed man stands in contrast to the exhumation and abuse of Oliver Cromwell. While British practice was extreme in both cases, it was not wholly exceptional.

All this is to say that the background against which these colonial laws should be understood is not Magna Carta. Rather, they are protections against the legal process in Britain, which showed little deference to Magna Carta or to common law, to the degree that either are assumed to have moderated brutality. John Foxe’s Book of Martyrs, a massive chronicle of the persecution of religious dissenters in Britain and Europe, is snickered at by historians whom I must believe have never looked at it. It is a vast trove of materials that describes in the recurrence of jailing and burning of martyrs a pattern begun in England early in the reign of Henry IV and continuing into the Reformation. The violent repression over more than a century proves that dissent was extraordinarily determined. Foxe’s history demonstrates that the conflict was about much more than icons and vestments.

The American colonies followed one another’s dealings with London, which informed their own policies. The Body of Liberties is careful to specify that even the condemned or excommunicated are free to dispose of their property as they see fit: this might be in response to the design for Carolina that was based on unalienable land ownership and fixed class status. In any case, it removes an important traditional power of the church and the state. Any man and his family can leave a jurisdiction at will. This again might be a response to the Carolina laws, which restricted the movement of the lowest class of persons, increasing their dependence on landowners.

Or it might be a response to the poor laws, which required the forcible return of workers who had fallen into indigence to the parish where they were born, forever considered their legal residence. These laws had their origins in the fourteenth century, when freedom of movement was legally limited for workers after the Black Plague reduced their numbers to the point where they could look elsewhere for better wages. Under the Ordinance of Laborers, workers were prevented from leaving their present situation, prevented from pursuing happiness, if that word is understood as well-being and its effects. The Body of Liberties also forbids imprisonment without trial, as well as double jeopardy. These relaxations of constraints on individual choice and movement would have affected the lives of many people, as well as the structure of colonial society. If these laws made official the existing state of things in the colony, they are only more remarkable for this fact.

More radical still is the plain language of the document: “no man,” “every man”—these phrases occur as insistently as “upon paine of death” does in Dale’s Code. The Liberties are, for the most part, written to be universal within the community. This is most explicit when the basis of the law is scriptural. The Bible says: “Ye shall have one manner of law, as well for the stranger as for one of your own country; for I am the Lord your God.” The second liberty says:

Every person within this Jurisdiction, whether Inhabitant or forreiner shall enjoy the same justice and law, that is generall for the plantation, which we constitute and execute one towards another, without partialitie or delay.

The assumptions behind both the Fundamental Constitution of Carolina and Dale’s Code are obvious though not explicit: human beings have no inherent rights. In endowing all persons with inherent rights, the Liberties very much diminish the authority that could be claimed by the state.

A portrait of John Calvin, Pope Leo X, and Martin Luther © Jimlop collection/Alamy

A portrait of John Calvin, Pope Leo X, and Martin Luther © Jimlop collection/Alamy

Laws are said to have a spirit that governs their literal meaning. In what spirit was the Body of Liberties created? There are limits to what we can surmise. They were Puritan in their origins, and Mosaic, to the point of enumerating the capital crimes found in the books of Moses. Should we find an effective severity or narrowness in them? Are they capitalist, like the colonial system itself? Are they oligarchical? The biases that are brought to bear on American Puritanism would encourage us to imagine that the Liberties are less than they seem. Yet it should be noted that the capital offenses do not include crimes against property; under English law, the theft of a shilling was a hanging offense. The laws of Moses on this point would have spared thousands of lives. This is again a reform that would very much disburden the poor, the crime being so closely linked to their particular distress. To what extent should these Liberties be understood in relation to the transformations that arose in response?

Hugh Peters, a founder of Harvard, a colonial emissary to London, a man who irked his enemies by telling jokes and laughing inordinately even as he preached, published in 1651 a tract titled “Good Work for a Good Magistrate. Or, A short Cut to great quiet. By Honest, homely plain English Hints given from Scripture, Reason, and Experience, for the regulating of most Cases in this Common-wealth. Concerning Religion; Mercie; Justice.” It is notable in many respects, first for the insight it gives into the breadth of thought possible and acceptable in Commonwealth England, and second as an indication of the kind of spiritual counsel Cromwell accepted while in power.

In his treatise, Peters does not look to English law or precedent—he says, “it is verie advisable to burn all the old Records, yea, even those in the Tower, the Monuments of tyrannie.” Burning the records sounds like the kind of wild antinomianism revolutions sometimes fall into, but his proposals are strikingly humane and reformist. They are also addressed to Parliament, which was at that time both the revolution’s leading force and the revolutionary model of legitimate government. He is speaking to his allies, at once insurrectionists and a traditional center of authority, and he is offering them a list of reforms that would seize on the opportunities that seemed available to the new order of government. He relies often on the example of the Dutch, another new republic. His “good works” resemble the Liberties of Massachusetts in that no deference or submission is offered, no approval is asked. In both cases, the first order of business is the organization of a system of justice. The social order of both Massachusetts and reformed England would be based on a judiciary composed of persons subject to frequent elections.

Peters’s pamphlet is presumably addressed to friends in Parliament, but it also seems intended for a popular readership. Although his proposals are meant to produce “quiet” and promote social order amid the Cromwell period, they bear no hint of repression. They are all liberalizations of existing law or practice. It might be fair to call them progressive since some of them, if they were proposed today, would certainly be placed in that category—which is to say, they would probably be dismissed. Contrary to established English law, Peters treats poverty as a condition that should be prevented or alleviated, rather than treating the poor as a distinct class whose rights were narrowly limited by law. He says the state should “have a stock readie” to protect the poor from rising prices, so that the “laborer . . . may live comfortably.” Care must be taken, “that poor men especially, may not bee . . . clapt up in prison . . . becaus hee is not able to put in Bail.” There are a great many people now incarcerated in America because they cannot make bail or pay some trifling fine.

“Great cruelties are committed in Prisons,” Peters says, “by great charges for fees, chambers, and dear victuals, and by stinking and unwholsom rooms, all which in Mercie and love to humanitie ought to bee prevented.” We know many of our prisons today are unwholesome, and in general show little “love to humanitie.”

Peters is very alert to the fact that incarceration is the special burden of the poor. He asks whether “it bee just to punish anie by lothsom prisons, before a hearing whether they bee guiltie or no: how manie innocent persons have suffered this waie, and how manie have lost their lives by sickness got there[?]” How many people on Rikers Island are awaiting trial?

Long laying in prison before sentence; or delaies in Justice is great crueltie to manie, and it mightily provokes the Lord, as Isaiah saith: and certainly it may bee remedied, if there were compassion enough to prisoners.

Here and throughout his work, Peters cites Scripture in support of his reforms. That the Bible was a liberalizing influence in early modern and specifically revolutionary cultures is as far from our assumptions as the notion that Cromwell and his Parliament would engage a chaplain whose political views were so advanced as to embarrass us in the inconceivably wealthy and comparatively stable twenty-first century.

Though his proposals are justified in religious terms, they are all practical and practicable, given only a more generous outlay of public resources and a real commitment to justice. Peters says,

Let no difference bee made between Jews, or Gentiles, bond or free, stranger or Natives, in either Criminal, or Civil things: for so hath God commanded, and by this means shall the Governors bee true fathers of humanitie.

Cromwell would suspend the laws that had for centuries made it illegal for Jews to live in England. Under pre-Commonwealth law, laborers could be hanged for idleness. Jesuits were subject to the gruesome execution otherwise reserved for traitors. There was, on principle and in practice, severe inequality under the law.

Peters understands that the problem of inequality involves more than social rank:

If anie Lawyer bee continued, let them bee allowed, and paid by the State, and plead for justice, even for justice sake. Why should expenses in Law bee thus bottomless? yea, such, as would maintein an Armie, and the fountain and issues thereof generally malice, and rancor.

Why are not the Fees of Physitians stinted? and then help commanded upon a known price?

Why indeed?

Hugh Peters, most disparaged of Puritans, wanted to exclude poor artists from taxation. He proposed that there be peacemakers appointed to settle disputes before anyone could be arrested or imprisoned. Writing as someone who was forced to flee England under the threat of persecution, and whose fellow dissenters had experienced prison and worse, he does not call for any equivalent punishment or any punishment at all for his (temporarily) defeated persecutors, but instead for an alleviation of the punitive bent in the assertion of public authority.

And here is what he says about religion:

None can bee free of great injustice, who by persecution for Religion take awaie libertie of conscience from anie: whose Principles or practises are not dangerous to the Government, Peace, Proprietie, and good of the Common-wealth; if they otherwise live but civilly. For as God himself: so his Vicegerent the Magistrate must caus his Sun to shine, and his rain to fall both upon good and bad.

This is more or less the present state of American law, though there are pressures now that might take it to a less enlightened place. As with Islam today, there were geopolitical anxieties behind the exclusion of Catholicism from the civic sun and rain. And any Royalist might point out that Puritanism itself had been very dangerous to government. Peters acknowledges that true justice is difficult to achieve, but he has a mitigation for the starkness of this fact. Even in the case of the worst offenders, they “may bee duly punished, rather inclining to mercie then crueltie, and alwaies with a merciful heart.” His own terrible death makes clear how great a departure this would have been from preexisting law.

’s most recent book is the novel Jack. This essay is adapted from a lecture presented to the Congregational Library and Archives in Boston, with the support of the Colonial Society of Massachusetts. The lecture was originally scheduled to commemorate the four-hundredth anniversary of America’s first Congregational service, in 1620.


More from