The Case of the Piglet’s Paternity. Jon C. Blue

chronological. Broadly stated, the General Court had a significantly reduced judicial docket in the colony’s later years. Each of the twelve trials reported here occurring between 1639 and 1649 was conducted in the General Court. In contrast, only one of the twenty-one reported trials occurring between 1653 and 1663 was conducted in the General Court: “The Farmhand Arsonist,” discussed in chapter 19. The twenty-nine remaining trials from that latter period were conducted in the Court of Magistrates.

      THE COURT OF MAGISTRATES

      Standing below the General Court in the colony’s judicial hierarchy, the Court of Magistrates consisted of “[all] the magistrates for the whole jurisdiction.”⁴⁵ In addition, the governor and the deputy governor sat on the court ex officio. Because the number of magistrates wasn’t fixed, the court didn’t have a fixed number of members. There were six towns in the colony, so if each town had one magistrate, the court would have eight members (six magistrates plus the governor and the deputy governor). But some towns had more than one magistrate, so perhaps as many as ten or twelve officials were entitled to sit on the court.

      However, as we saw with the General Court, the number of officials actually sitting on the Court of Magistrates was significantly smaller than the number of officials eligible to sit. The court presiding over the 1653 Case of the Rhode Island Privateer (chapter 13), for example, consisted of four members: the governor, the deputy governor, and two magistrates.⁴⁶ Sometimes three or four magistrates participated, so a typical Court of Magistrates might contain four to six members.

      PROCEDURE

      The discussion so far has concerned the formal structure of the New Haven courts. But the modern reader will want to know something quite different. What did the courts look like in operation? If you were transported to a New Haven court by a time machine, what would you see? Who would be in court? Who would speak and when? How did the court reach its decisions? Although the records don’t tell us everything—we don’t know where people sat or what they wore—they nevertheless tell us a surprising amount. Through them, we see a distinctive type of judicial proceeding, one finding no counterpart either in the modern English-speaking world or, for that matter, elsewhere in the world of the seventeenth century.

      The first thing you might notice is that the New Haven courts sat without juries. The rejection of the ancient institution of the jury, well established in England as well as in the Massachusetts and Connecticut colonies, was apparently made at the suggestion of Governor Eaton.⁴⁷ There may have been practical concerns. Only church members had the right to vote (and consequently the right to sit on juries),⁴⁸ and they were so few in number that it may have been difficult to assemble juries of twelve.⁴⁹ But there were almost certainly philosophical concerns as well. The governing law was biblical, and it may have been thought that the necessary expertise to identify and apply that law reposed in the members of the court. To that end, the General Court was specifically empowered to consult the elders of the churches in the jurisdiction.⁵⁰ Consultations of this description by lay juries would have been more awkward.

      The next thing you would notice, at least in the typical case, is the absence of lawyers. In criminal and civil cases alike, even in capital cases or in cases involving young children, persons appearing before the New Haven courts represented themselves. Representation was not legally prohibited, and as the colony’s history progressed, a few persons acting as attorneys appear in the records.⁵¹ But it is unlikely that these were persons with legal training. In a colony populated by believers and traders, persons with legal training were unlikely to be found.

      Even when “attorneys” or representatives appeared, they rarely spoke. They simply stood by as the court examined their clients. They never made a legal motion or uttered an objection. In the twenty-four-year history of the colony’s trials, not a single motion or objection is to be found.

      You would next notice the behavior of the court. Modern lawyers classify judicial styles as either “hot” or “cold.” A “hot court” asks lots of questions. A “cold court” listens to legal arguments with the silence of an Easter Island statue. The New Haven courts were most definitely “hot courts.” They not only peppered the parties and witnesses with questions but also did not hesitate to volunteer information pertaining to the cases before them.

      The questioning process in the New Haven courts was quite unlike that of any court with which we are likely to be familiar. Courts in the English-speaking world ordinarily proceed one witness at a time. Visit a court in Boston or in San Francisco, in London or in Sydney, and the procedure will be the same. A witness will be sworn and questioned by each side. Only when that witness is finished will the next witness be called. The questions will be asked by the lawyers (or, in the absence of lawyers, by the parties). The judge may ask an occasional clarifying question, but by and large, the judge stays out of the fray.

      The New Haven courts proceeded differently. Their procedure was much more free flowing and improvisational. The parties and their witnesses appeared together before the court. A claim would be made. The court might begin to hear a witness testify, but before too long, it might ask another witness about what the first witness had just said. Question by question, it would go back and forth between witnesses, sometimes between multiple witnesses. As they heard evidence, the judges would ask the witnesses, in effect, How do you explain this? What do you say about that? Sometimes a witness, a member of the court, or even a spectator would simply pipe up with some new information, and the court would follow up on that as well. In this way, the court could, if all worked well, probe the facts of the case with much greater efficiency than our modern judicial system allows.⁵²

      You would also notice that the governor, who presided ex officio over both the General Court and the Court of Magistrates, did most of the talking for the tribunal. Although other members of the court occasionally spoke—sometimes to ask a question and sometimes to volunteer information—the governor asked most of the questions and, after the case had been heard, ordinarily delivered the judgment of the court. Whether by reason of status, learning, or force of personality, the governor dominated the court.⁵³

      Other attributes of the New Haven courts would command your attention as well. One is the courts’ frequent reference to pretrial examinations of parties and witnesses. We don’t know exactly how the pretrial system worked, but the practice seems to have been that at an early date, a local magistrate (or sometimes the governor himself) would examine a party or witness and memorialize the witness’s testimony in a written document that would be transmitted to an upper court for subsequent use at trial. The upper court would then read the document and use it as substantive evidence in the case. Sometimes the pretrial statement of a witness would be used to supplement (or contradict) what the witness later said in court, but often it would be used even if the witness was absent from the proceeding.

      This procedure—which permeated the practice of the New Haven courts—had significant implications for both the efficiency and the fairness of the proceedings. The efficiency of the system is obvious. A witness’s testimony could be recorded at an early date while his or her memory was fresh and subsequently read by the tribunal without troubling the witness to appear in court. The tribunal could save considerable time as well, since it is much more efficient to read a statement than to question a witness.

      What was gained in efficiency, however, was lost in fairness. A witness’s credibility cannot always be gauged by reading a piece of paper. Parties appearing in court, often with life or liberty at stake, could not confront their accusers. A famous English case tried in 1603 (that was later, by negative example, to inspire the Confrontation Clause of the Sixth Amendment) provides a troubling example. Sir Walter Raleigh was sent to his death by the deposition testimony of a prosecution witness whom he was unable to confront in court.⁵⁴ Had Sir Walter returned from the grave a generation later, he would have recognized the New Haven system all too well.

      Viewing the New Haven courts over a period of time, we would also notice a method of decision making quite different from that employed by judges today. Modern judges are expected to be neutral and detached professionals. Their task is to listen