Truth v. Myth
Often one hears Americans on the news saying that the Second Amendment is necessary to us today because we may need to take up arms against an oppressive government in the 21st century, just as we did in 1775, and that those who anticipate doing so in the near future share the motivations of Americans during the Revolutionary War. Our thoughts on the Amendment can be found here; in this post, we will spell out why our situation in this century is not at all like that on the eve of Revolution in the 18th century, although we have the feeling this should be obvious without our intervention.
—During the Revolution, we fought a foreign government and a foreign occupation.
This is the key item to note. Granted, we overstate a little, so let’s go through it and be clear. The American colonies generally had popularly elected legislatures and royally appointed governors, so laws in the colonies came from two very different sources: representatives of the American people, and representatives of the British crown. Our experience of law was mixed. Legislatures generally made life difficult for governors who betrayed the people’s interests, especially in the realm of taxation, and so the influence of royal governors, who technically reported to no one but the king, was limited. Until, that is, the 1760s, post-French and Indian War, when London began direct rule of its colonies in North America. Parliament passed Acts (Stamp Act, Sugar Act, Tea Act, Coercive Acts) which were to be enforced without any input from legislatures. Indeed, even the governors were bypassed eventually as British soldiers were sent to America to make sure Acts were enforced. Americans who disobeyed Acts were to be sent to London for trial. This is the key moment, in the 1760s, when long-standing doubts about how much the American colonies owed to Britain were crystallized for many into clear convictions that London and Parliament did not consider Americans to be British citizens and did not grant them the rights of citizens, and were thus, through these Acts, imposing a foreign government on the American colonies. By refusing to allow American representatives in Parliament, the British government was confirming this. By sending troops to maintain order, the British government was occupying lands it believed to be hostile possessions; Americans were alien combatants.
It’s very clear that we are not remotely in that position today. Any Americans who oppose the government and/or its actions (taxation, immigration, welfare) are opposing their own government, popularly elected by their fellow Americans and even, perhaps, by they themselves. We don’t need to resort to arms to oppose our government because soldiers from another country are not in our streets and homes enforcing foreign laws. We resort to the voting booth, the referendum, and the ratification process to change or oppose our government. U.S. citizens today have rights that their government enforces and upholds—and if it doesn’t, we work through the courts and the political bodies to make it do so.
—Americans during the Revolution did not fight on their own.
They fought in their locally organized militias, which joined the Continental Army led by George Washington. They fought in the army, not as a vigilante group. Individual citizens submitted themselves and their guns to a government-authorized national army. That’s hardly what people today are picturing when they say they need guns to fight the government if it becomes oppressive. In 1775, Americans were fighting a formal war against a formal army. They weren’t sitting in their homes waiting for someone to challenge them and get blown away.
—Americans during the Revolution were fighting to keep their government alive.
Americans who fought in the Revolution were hoping to see the new government, represented by the Continental Congress in Philadelphia, firmly and officially established as the government of their nation. They were not fighting to get rid of government, as so many Second Amendment fans seem to want to do today. They knew that the nation needed a strong government (though not necessarily fully centralized) to survive, and their aim was to make sure that government was fair once it was established—that’s why the Constitution was ratified by popularly elected officials, and why even common people clamored for a Bill of Rights to be added to it. Americans in the 1770s were fighting for government, not against it. They did not believe that armed individuals were a proper substitute for state and federal government.
So we have three good distinctions to draw between ourselves and our ancestors, and hopefully we can put this ridiculous argument to rest. We no longer have to use guns to maintain our freedoms; we have to use our rights as citizens to vote and participate in government to maintain our freedoms.
But what if our government becomes perverted and undemocratic, people ask? What if our political system fails? Then we’ll have to use force to protect ourselves.
it seems clear that the only way this could happen is if the American people fail in their participatory duty as citizens, so we are back to our original argument, which is that as long as we do our duty, the government we elect can never fail to be what we want it to be. It’s only by withdrawing from participation in our democracy that we lose it, and by looking for reasons to rise up in arms that we threaten ourselves with that dire possibility.Read Full Post | Make a Comment ( None so far )
We just finished our long series on the flaws in Oliver Stone’s new TV series “The Untold History of the United States”, and now we found an article on a speech by Wisconsin Representative Paul Ryan that calls for the same analysis. We are grateful to Politifact Wisconsin for the article and for providing the analysis, which we need only sum up here.
Here is Politifact’s report of what Ryan said the following in an April 11 speech to a group that works to elect anti-abortion women to political office:
“Our forebears knew to strive for perfection, not to expect it—because mankind is flawed. Progress takes time. It takes work. And it takes common sense… Take Lincoln. He hated slavery as much as anyone. But he defended a law that preserved it. He supported the Compromise of 1850, which prohibited slavery in California but allowed it in New Mexico. He even backed a law to return runaway slaves to their owners.” Lincoln agreed to compromises, Ryan asserted, “if they brought him closer to his goal–even in just a small way. We all know what happened. After years of turmoil, he helped pass the Thirteenth Amendment, which ended slavery for good.”
Politifact Wisconsin actually asked eight experts on Lincoln to evaluate Ryan’s statement. What they found was that, like Stone’s series, Ryan’s statements are partially true, but twist facts just past the breaking point of accuracy. We’ll let Politifact do the talking here:
“While Ryan said Lincoln ‘supported’ the Compromise in 1850, Lincoln was actually semi-retired from politics at the time, having left Congress a year earlier (he wasn’t elected president until 1860). At the time of the compromise Lincoln did not express support for it, according to several experts, including Lincoln biographer Ronald C. White Jr., Michael Burlingame, a Lincoln scholar at the University of Illinois-Springfield, and Columbia University historian Eric Foner. As president, Lincoln did agree to a proposal that would have admitted New Mexico as a state, said Lincoln biographer James McPherson. So in that sense, he could be said to have supported the Compromise of 1850, in that New Mexico had opted to approve a slave code. On the other hand, McPherson said, no slaves were counted in New Mexico in the 1860 census, which indicates slavery had not taken hold there.
“Similarly, Lincoln as president held that the federal government needed to abide by the Fugitive Slave Act, mandating for the return of runaway slaves, given that it was the law of the land. But, McPherson noted, Lincoln wanted legislation to give alleged fugitive slaves a trial before they could be returned. ‘He did feel there was no choice but to defend the legality of the Fugitive Slave Act once it became law, and even said so in his first inaugural address—but here some context is needed, too,; said Lincoln scholar Harold Holzer. ‘He refused to oppose so-called ‘personal liberty laws’ that were passed by northern states to justify disobedience to the Fugitive Slave Act. So, in sum, Lincoln always opposed slavery,’ said James Cornelius, curator at the Abraham Lincoln Presidential Library & Museum. ‘But he also held, privately and out loud, that federal law must be obeyed.’”
Politifact sums up by saying “Ryan’s statement is partially accurate, but leaves out important details. That fits our definition for Half True.”
Unfortunately, this is too often the case when public figures and average people decide to use history to support their positions: they pick up a few facts and string them together in the way that best suits their purposes, either deliberately or accidentally. In the case of the former, they know what they are leaving out or distorting. In the case of the latter, they do not. But either way the result is negative.
In this case, the idea that Representative Ryan would seek to inspire anti-abortion partisans to work with pro-life activists if necessary to achieve their goal of banning abortion by claiming that Lincoln worked with pro-slaveryites to achieve an ultimate goal of abolition is beyond odd. It equates pro-life supporters with people who supported slavery. It makes the case that no group is too repugnant to secretly use to achieve your goals. It condones hypocrisy. It recommends lying to achieve your goals by pretending to work with people you plan to destroy. It drags Lincoln’s name through the mud by claiming he operated in these ways. And it implies that Ryan himself operates in these ways.
Part 3 of our series on Stone’s “Untold History of the United States”, currently running in 10 one-hour episodes on Showtime. So far in our review of Episode 1—World War II, we have not encountered a lot of U.S. history; it has mostly been a retelling of world events with a loving focus on Stalin and the Soviet Union as lone crusaders against Hitler. More, unfortunately, on that below.
But at about 19.00 Stone introduces Henry Wallace, FDR’s Secretary of Agriculture, as our first unsung hero of U.S. history. Wallace directed the soil conservation program that helped reverse the Dust Bowl, and was an outspoken opponent of racism against black Americans and Jewish people worldwide. When FDR chose Wallace as his running mate in 1940, the Democratic party protested, leading the president to write a letter to the delegates at the Democratic National Convention saying he would not accept their nomination if they did not accept Wallace’s. Stone edits the letter, of course, to make a sound bite; there’s nothing wrong with that. But oddly, he changes the end of the letter fairly substantially. The actual text is:
“The party must go wholly one way or wholly the other. It cannot face in both directions at the same time. By declining the honor of the nomination for the presidency, I can restore that opportunity to the convention. I so do.”
Stone gives it as:
“The party cannot face in both directions at the same time. Therefore I decline the honor of the nomination for the presidency.”
The meaning is not changed, but this level of editing makes one wonder about the accuracy of all the other quotes given in the episode, and whether the goal of making a more dramatic soundbite led Stone and the editors to substantially change the content of other quotes.
Another basic law of documentary film-making is broken here, as Stone uses footage of Roosevelt delivering a radio address as a voiceover artist reads the letter text, seemingly saying to viewers that this is footage of Roosevelt actually reading from the letter. The lips don’t match the words well until the very end, where whatever Roosevelt was actually saying matches “the presidency” very closely. You don’t pretend to have footage of something you don’t have footage of.
FDR’s tough stance paid off, and Wallace was accepted as the vice-presidential nominee. So far in the episode, FDR is coming off pretty well, as someone who would have liked to aid the Spanish Republic, and forced his party into braving conservative pressure. The only real negative so far is the U.S.’s perversely small quota allowed for Jewish immigration from 1933-1945, for which FDR must take some blame.
At 27.40, Stone at last acknowledges Stalin’s paranoia by saying it would not allow him to believe that Germany would attack its new Soviet ally in 1941. But we veer back into Stalin-boosting at 29.28, when Stone says that after the Nazi invasion of the Soviet Union was launched, “Stalin begged Britain for military material and to land immediately in Europe and engage Hitler on a second front. And for the west, it was now crucial to keep the Soviet Union in the war to absorb the main thrust of the Nazi war machine.” To say that the Allies wanted the Soviet Union in the war simply to let someone else be destroyed in their place is inaccurate, to put it mildly, and Stone himself contradicts this cynical view immediately before this clip, at 29.15, when he says the west feared that the Soviets would fall to the Nazis, and conclude a separate peace. The prospect of the Nazis controlling the Soviet Union and its massive resources of farmland and oil was so dire that Churchill, an entrenched anti-communist, “pledged support for the Soviet Union.” So the real reason it was crucial to keep the Soviet Union in the war was not so it could be destroyed by the Nazis while the west looked on laughing, but to keep it in the war so that its crucial resources would not be used to fuel the Nazi war effort. If the Soviet Union fell, the odds of defeating the Nazis shrank considerably.
But Stone continues to present the west as anxious to support a Nazi victory over the Soviet Union, explaining the reluctance of U.S. military leaders to send war materiel to the USSR, and the reluctance of the British to divert that war materiel from their own war effort to the eastern front, this way: “There were still many in the west who frankly were glad to see the Soviet Union finally on her knees.” It’s true that many American leaders would have been glad to see the Soviet Union fall. It’s not true to say that that is the reason why they did not want to provide war supplies to Stalin. American leaders hesitated to get involved in a war the U.S. was not part of—in the summer of 1941 the U.S. was officially neutral, and getting involved in the war might invite an attack on the U.S. British leaders hesitated to redirect war supplies from Britain to the Soviet Union because Britain was still fighting for its life at that point. They did not know, as we do now, that Germany would not attempt another invasion of Great Britain. Britain was the only western European nations still fighting the Nazis, and it’s reasonable that its leaders would not want their only outside supply line from the U.S. sent to the eastern front. Stone has just said Churchill pledged to support the Soviet Union because he needed them in the war. So how can he then say Britain was “frankly” glad to see the Soviet Union fall?
The real issue in 1941 was one that would persist for three more years: the Allies wanted to open up a western front but were unable to get the foothold in Europe to do so, and needed considerable firepower in the west to create that opportunity. There was no conspiracy to let the Nazis destroy the Soviet Union. If the USSR fell, then the Nazis could return their full focus to the west, and then the odds of carrying out the D-Day invasion would have shrunk dramatically.
Stone then moves on to FDR’s secret meeting with Churchill in Newfoundland in August 1941, and notes that FDR was reluctant to help Churchill protect and extend its empire; the Atlantic Charter that came out of the meeting that set the Allied goals for a post-war world specifically ruled out ”territorial aggrandizement” as a goal. Stone then has audio of FDR explaining the “Four Freedoms” (freedom of speech and worship, freedom from want and fear), and ends it by saying “These were big words, but the Atlantic Charter was a truly visionary document.” (34.03) The Four Freedoms, however, were not in the Atlantic Charter; they were introduced in a speech by FDR 7 months earlier, in January 1941. Yes, the principles of the Freedoms are upheld by the Atlantic Charter, but the articulation of the Freedoms is not in the Charter, and it’s sloppy history to say they were. And just another red flag about the accuracy of the series as a whole…
…as we see when we move on to the origins of the Manhattan Project. Stone describes how it was turned over to the U.S. military and the oversight of Major General Leslie Groves. He says that Vice President Wallace “had a low opinion of Groves, believing him ‘a slightly pathological, anti-semitic Roosevelt-hater, and outright fascist.’” (42.54) Then Stone moves on to the team Groves created. Wallace may well have believed Groves was all those things, but the responsible historian cannot simply present Wallace’s opinion as the objective truth about Groves, as Stone does here. What if a history of the U.S. 50 years from now introduces President Obama by quoting a neo-conservative politician claiming that Obama was a Kenyan citizen posing illegally as a U.S. citizen, and then just moved on, letting that stand as the only description of the president, tacitly saying it is true? What if a history of the U.S. 50 years from now introduced President George W. Bush by quoting an activist claiming that Bush was in on the September 11th attacks and then moved on, letting it stand as true? If you present incendiary charges in what is supposed to be a documentary, you have to prove them. Stone does not.
On to another go-around at 44.22 about Stalin “pleading” for a second front, and here at least gives a few accurate reasons why this didn’t happen, from Eisenhower’s estimation that it would take much longer than the U.S. had thought to create the opportunity for a landing in western Europe to Churchill’s concerns about holding North Africa, in part hoping that the second front could be opened up in southern Europe from British North Africa.
We are almost done; next time will be the last time, but it will be an enormous dose of truth v. myth, so be ready.
Next time: “historians agree”Read Full Post | Make a Comment ( None so far )
On we go in part 2 of our review of director Oliver Stone’s TV series “Untold History of the United States”, now airing on Showtime. We’re analyzing it for its historical accuracy and reliability. Why do this? Because Stone asks us to, in the intro to episode 1, “World War II”, in which he says rather than make another narrative movie, he thought the important topic of “real” U.S. history deserved something more—a documentary series informed by real historians. So we are taking him at his word and watching the show as historians, and as we made clear in our first post, finding it lacking. No one is more dedicated to Truth v. Myth than the HP, so it’s not that we don’t like myth-busting, one of the promised activities of Stone’s series. It’s just that myth must be busted by truth, and not the other way around, and in Episode 1, at least, there’s a lot of myth posing as truth.
So we left off last time about 12 minutes into “World War II” and now we pick up at 12.35, where Stone, narrating, says that western non-intervention in the Spanish Civil War convinced Stalin by 1939 that “the western powers had no real interest in a collective action to slow the Nazi advance. For years, the Soviet dictator had implored the west to unite against Hitler and Mussolini, even joining the League of Nations in 1934. But Soviet pleas were repeatedly ignored. And then in 1937, full-scale war erupted in China as the powerful Japanese army captured city after city.”
Like a good dissertation advisor, let’s mark this up: First we are in 1939, with Stalin trying in vain to get the west to fight the Nazis. Coming where this claim does, after a wrap-up of the U.S.’s refusal to intervene in the war and FDR’s statement that the refusal would come back to haunt the nation, one has to assume that Stone means Stalin was the only major leader who fought the Nazis in Spain and the only leader who was willing to keep fighting them afterward. Stone gets this, apparently, from the fact that the Soviet Union provided war materiel to the Republicans in Spain. But cursory study of the Soviet role in the SCW shows that Stalin intervened only in an attempt to convert the civil war into a communist revolution that would create a Soviet satellite nation in Spain. Stalin’s man in Spain, Alexander Orlov, had the socialist prime minister deposed and installed a communist who could be a puppet leader, and carried out arrests and execution of Republican leaders who did not sympathize with communism. In exchange for military support, Stalin demanded that the Republic pay in gold; about $500 million in gold left Spain for the Soviet Union during the war.
To say that Stalin was “fighting the Nazis” in Spain is disingenuous: he was in a fight to control Spain and had no interest in the stated goals of the Spanish Republicans. He supplied arms to the communist revolutionaries in Spain and directed most of his efforts to using those weapons to rid the revolution of its non-communist participants. Stemming the Nazi menace was fairly far from his mind. Stalin did hate European fascism, because it was not Communist, but his heart did not bleed for Hitler’s victims in Europe. Stalin was only ever concerned with his own security. Spain served his purposes only for as long as he thought he might control it, and begin to build his own empire in Europe.
Next, we have the statement that Stalin had been “imploring” the west “for years” to fight Hitler, and even had the USSR join the League of Nations to get his urgent message heard. First, Stalin never implored the west to fight Hitler, as we have seen. Second, the Soviet Union joined the League of Nations after Germany and Japan withdrew their memberships; Stalin hoped to develop some tactical alliances with western nations alarmed by Hitler’s actions so that if Hitler supported a Japanese attack on the Soviet Union in the east, or Germany attacked in the west, the Soviet Union would be able to call on its new allies to come to its aid. Stalin also wanted to give temporary support to anti-fascist movements in Europe, again to protect his own territory from invasion. No one can argue with the necessity of protecting one’s country from invasion. But to say that the Soviet Union joined the League of Nations primarily as a gesture of goodwill to try to get fighting the Nazis on the agenda is plainly wrong.
Finally, we jump backward in time from 1939 to 1937 to the Japanese invasion of China, which, presented in this way, is seen as an inevitable consequence of the west’s refusal to help Stalin fight Hitler. In reality, Hitler was not interested in really allying with Japan, a racially inferior nation in his view, and there was no cooperation between Germany and Japan before the invasion. So these are unrelated.
We recall at this point that the website for the series claims that we will discover unsung heroes of U.S. history and “explore the demonization of the Soviets”. This agenda is never actually stated in the episode. That is a red flag for the historian, who knows that you must always make your biases and agenda clear in anything you write or produce. When we practice Truth v. Myth here at the HP, it is clearly tagged as such and identified as such within the post. The second problem is that, while revisionist history is valuable, you have to do good history. You can’t take facts (the Soviet Union sending aid to the Republicans, the Soviet Union joining the League of Nations) and simply make up fictional narratives about why they happened. You have to stick to the real facts throughout, and suffer the times when they don’t support your thesis just as you celebrate the times that they do.
That’s a lot of ink to spill on 10 seconds of video. But those 10 seconds are so misleading, they have to be fully unpacked.
We move on, but only to another Stalin example: at 14.45, Stone says that after Hitler invaded Czechoslovakia “Stalin recognized the truth: his country was facing its most deadly enemy alone. He needed to buy time, and fearing a German-Polish alliance to attack the USSR, he shocked the west when he signed a non-aggression pact with Germany.”
The Soviet Union had made an alliance with Czechoslovakia in 1935 as a by-product of its new alliance with France (which was a Czech ally itself). These alliances were the fruits of and the reason for the Soviets’ joining the League of Nations. When Hitler took the Sudetenland nothing happened. When he took the rest of Czechoslovakia, France signed the Munich Agreement, accepting the new status quo and abandoning the Czechs. Churchill looked to Stalin to stand by his alliance; Churchill saw early on both the threat Hitler posed and the necessity of involving the Soviet Union in a war against Hitler. Churchill pushed incessantly for a British alliance with the Soviet Union, but British Prime Minister Neville Chamberlain was not interested in an alliance that he believed Hitler would find aggressive. When Stalin terminated its alliance with Czechoslovakia, Churchill was shaken, but continued to believe that the virulently anti-fascist Stalin would come around. When Stalin signed the Non-Aggression Pact with Germany in August 1939, just five months after the invasion of Czechoslovakia, Churchill was stunned.
After Hitler invaded Czechoslovakia, Stalin immediately dropped its alliance with that nation and then did absolutely nothing to stop Hitler. And when he was approached by Joachim von Ribbentrop for an alliance with Germany, he accepted with alacrity, not because he feared a Polish-German alliance but for two reasons: first, he saw the Munich Agreement as evidence that France and Britain would not stop a German invasion of the Soviet Union, and second because Ribbentrop agreed to Stalin’s demand for half of Poland in return for an alliance. The Molotov-Ribbentrop Pact was perfect for Stalin because it protected him, he thought, from a western invasion. Germany would not invade, and occupying eastern Poland and part of the Balkans would give the Soviets a buffer zone against any British-French invasion. The Soviet Union also agreed not to get involved in any European war—that is, when Germany launched World War II, the Soviets would not interfere or intervene to protect France, Britain, or any other nation from German invasion.
The idea that Stalin feared a German-Polish alliance strains credulity to the breaking point. Poland had its own non-aggression pacts with Germany and the Soviet Union, but these seemed so flimsy to the Poles that they gratefully accepted British and French guarantees of military protection at the end of March 1939 in case of an attack by Hitler or Stalin. Only the paranoid mind of Stalin could have conjured up the threat of a joint German-Polish invasion of the Soviet Union; for Stone to accept it is baffling.
Stone says that Stalin had proposed to join the Franco-British alliance to protect Poland, but “neither [France nor Britain] would accept Soviet troops on Polish soil as a way of blocking the Germans.” This is astounding. France and Britain knew, as most European nations knew, that Stalin had been angling for years to find a way to annex Poland. That’s why they did not accept Stalin’s offer to occupy Poland “to block the Germans”—they knew it had nothing to do with Germany and everything to do with annexing Poland. Once Soviet troops entered that nation, they would never leave.
We have only covered about 5 minutes of film here. That’s the danger of it. A full hour episode presents stretches of conventional history that lull you into confidence and then slips in 5 minutes here and there of complete malarkey that you might be fooled into accepting.
We hope to make better time in part 3, where we move on to the actual war and more Stalin-burnishing.Read Full Post | Make a Comment ( None so far )
Yesterday on the radio show Talk of the Nation (click that to see the transcript we’re working from) Republican Representative Ron Paul was a guest, along with independent Senator Joe Lieberman, talking about what lies ahead after their respective retirements from Congress next year. The host of the show brought up comments Paul made about secession after President Obama’s re-election in November. Some Texans have been talking about their state seceding from the union as a result of this election, and Paul joined in to confirm the right of any state to secede, comparing it, as people defending secession so often have, to the Revolutionary War. Paul made the comments the show was referring to on Fox News’ Cavuto program on December 1 (the lead-in for which was a host saying “Well, President Obama’s in, now more states want out”—surely an exaggeration, given that the number of people signing secession petitions in all of the states involved but Texas range in the low ten-thousands out of populations of millions). Paul began by saying he did not support secession, but averred that secession is allowed in the U.S. He couldn’t say it’s constitutional, of course, because secession is not provided for there, but called upon those ever-flexible Founders to say that secession is a non-extreme idea that they would have supported.
The states which have residents signing petitions are strangely familiar as a group: Texas, Arkansas, Louisiana, Tennessee, Alabama, Georgia, Florida, South and North Carolina (and Arizona, the odd man out here).
On Talk of the Nation, Paul offered this bizarre scenario when asked about his statements: “What if today, Greece, seceded from the European Union? The European Union got together, invaded Greece and killed about 50,000 people? We would frown on that.” One can only extrapolate that Paul is comparing the U.S. Civil War to this EU scenario, and criticizing the U.S. decision to fight the Civil War against the Confederacy (though one can’t figure out where the 50,000 number comes from).
Paul went on to say: “I think the freedom to leave is the description of whether or not you’re free. The Soviet system was so bad you could not leave. If you left, you got shot. So you have to have the right to leave. In secession, leaving—coming together is voluntary, so once you can’t leave, you lose your right of independence and self-determination becomes a very bad situation.”
This is a constant argument that Americans touting the right of secession use and, except for the Soviet reference, of course, the argument proslavery southerners made before the Civil War. The idea is that the United States are united by choice, not force, and therefore are free to leave the union whenever they want. This is simply untrue. Joining was voluntary; continued participation in the union is not. There is no protocol in the Constitution for states to leave the union, because if any state could leave at any time, it would be impossible to maintain a functioning nation. The only attempt by states to leave the union was answered by war. Being required to continue within the union is not equivalent to being imprisoned in a police state. The difference between the Soviet Union and the United States is that citizens of the states are able to participate in politics and create the change they desire.
Referring to the Revolution is also invalid, because the situation of colonies within an empire is not the same as states within the U.S. Colonies are goverened as satellites, without full rights as citizens. Colonies that break away from an empire know they must fight a war to do so, because they have no representation within the government of the empire, and are controlled for profit alone, a profit the empire will not want to lose. The states of the U.S. are not in that situation, as the American colonies once were, and so secession since the War is not the same as fighting for independence from an imperial government.
So far in the radio interview, Paul had only toed the usual misinformed line on secession that aligns it with the Founders and 1776, just as proslavery secessionists did in the late antebellum period. But then he veered into even more myth, claiming that during the War of 1812, New England tried to secede: “If you study history carefully, I think you’ll recognize that it was well accepted and recognized north – the New England states, you know, were much more into secession than South was, you know, early on in the 19th century.”
Unfortunately, host Neal Conant affirmed this myth. The facts, however, are that during the War of 1812, which, like the Revolution, hit New England harder than other regions of the country, some New England Federalists threatened to call a convention to discuss secession. Like all Americans who call for secession, they claimed that they were “defending the true principles of the Constitution and of the nation itself” (Disunion! The Coming of the American Civil War, by Elizabeth Varon, 37). This Federalist fringe was immediately attacked by Democratic Republicans north and south, and by the time of the Hartford Convention in December 1814, any support New England secessionists had had withered away to almost nothing, and attendees of the Convention did not even discuss secession. Southerners, however, would hold the Convention over New England’s head for decades, at first chastising the region for its treason, and, in the 1850s, using the incident as proof that secession was legal (Ibid., 38-9 – for more on the changing nature of secession talk between 1787 and 1861, see Disunion: the battle over slavery before the Civil War).
So secession was never “well accepted and recognized” in the north, nor is it true that “New England states, you know, were much more into secession than South was”. New England was shamed and humiliated for decades afterward by its brief and very partial interest in threatening to secede, and most of that shame and humiliation was heaped on by the south—until the south wanted to defend secession as patriotic, at which point it praised New England for its early bandwagoning.
Paul went on to add to his misinterpretation of history by saying, “they recognized that it wasn’t like – it wasn’t evil, that they weren’t evil people because they wanted to separate themselves”. But of course New Englanders were made to feel evil because of the actions of a small fringe group, and New England in general did not want to separate itself.
Paul then wrapped up by dragging out the tired horse of states’ rights, saying “just having the right to secede or nullify would restrain, you know, the advancement of the central state. Now, if you lean towards saying, well, no, we need a stronger, more centralized control, then, of course, you don’t want that. But those of us who are strict constitutionalists and libertarians and all, we want government, local and at home, and not at the central level because we don’t believe in the central economic planning, whether it’s social planning or economic planning.”
The idea here is that if all the states were individual, not bound in a federal union, each would just have its state government, and we would not be subject to the horrors of big federal government. How “strict constitutionalists” could hold this position,which is clearly not part of the U.S. constitution, is unclear. But the idea that state governments are all good and pure, and would never trample the rights of state citizens like the federal government, and that the states are locked in an eternal battle with the evil empire in Washington, is not only an old one but one that is patently false. If the complaint against the federal government is that power corrupts, and absolute power corrupts absolutely, and so states must strip the federal government of its power, what happens when states have all the power? Then each absolute state government will become absolutely as corrupted as the federal government is believed to be, because each will be the only government for its citizens. If the idea is that a state government is more responsive to its constituents because it is closer to them, and answers only to the people of its own state, that would surely be undone if the state government became the only government, with absolute power, and no outside, federal power to monitor its fairness.
The moral of the interview is: follow whatever political course you like—that’s the premise of the United States. But get the details right, and don’t ignore, or remain ignorant of, historical facts that interfere with your preferred world view. …and if you’re going to advocate “studying history carefully”, make sure you lead by example.Read Full Post | Make a Comment ( None so far )
There is a great, if short, interview with Dr. David D. Hall from the Congregational Library in Boston, Massachusetts (in four parts) that every student of the Puritans should see. Here’s the bio from his web page at Harvard:
“David D. Hall has taught at HDS since 1989, and was Bartlett Professor of New England Church History until 2008, when he became Bartlett Research Professor. He writes extensively on religion and society in seventeenth-century New England and England; his books include The Faithful Shepherd: A History of the New England Ministry in the Seventeenth Century; Worlds of Wonder, Days of Judgment: Popular Religious Belief in Early New England; Puritans in the New World: A Critical Anthology and, most recently, A Reforming People: Puritanism and the Transformation of Public Life in New England (2011). He has edited two key collections of documents: The Antinomian Controversy of 1636-1638: A Documentary History and Witch-Hunting in Seventeenth-Century New England: A Documentary History, 1638-1693. Another interest is the “history of the book,” especially the history of literacy and reading in early America. He edited, with Hugh Amory, The Colonial Book in the Atlantic World, the first of a five-volume series of which he was the general editor. He continues to study and write about religion and culture in early America, with particular attention to “lived religion,” and is presently writing a general history of Puritanism in England, Scotland, and New England c. 1550 to 1700, to be published by Princeton University Press.”
A Reforming People is one of the HP’s favorite resources, easy to read and transformative for the new student of Puritanism, informative and surprising for the experienced scholar. Unfortunately, YouTube videos will not embed here, so we can only send you to the site indirectly. Enjoy!Read Full Post | Make a Comment ( 2 so far )
Part 5 of our series on the 1641 Body of Liberties of the Massachusetts Bay Colony leads us to the rights, or liberties, of minority populations—women, children, servants, “foreigners and strangers”, and “brute creatures”. As we’ve mentioned in earlier posts, the fact that there are special sections for these categories within the Body does not mean that the other liberties described in the document do not apply to women, children, etc. It means that while some of the laws in the Body were about men only (such as the laws about military service), women, servants, and others had recourse to the law—they could bring law suits and defend themselves in court, they could be banished and fined just like men, and so laws about those things applied equally to all people. In these special sections, however, the Puritans addressed issues that could only apply to the groups mentioned, issues they wanted to call out and make clear within the law.
We can actually look at each of the laws in these sections, because there aren’t many. This is a sign that the Puritans of Massachusetts saw all its people as covered by the Body in general, with only a few occasions where special populations needed special protections. If you’d like to read the whole Body of Liberties, and the codes of law that followed it and incorporated it, you can find it in libraries or for sale online under the title The Colonial Laws of Massachusetts: reprinted from the edition of 1660, with the supplements to 1672, containing also the Body of Liberties of 1641.
Modern spellings are used throughout.
Liberties of Women
79: “If any man at his death shall not leave his wife a competent portion of his estate, upon just complaint made to the General Court she shall be relieved.”
—Men have to provide for their widows. Some men would leave all their estate to their children—their sons or sons-in-law—in order to pass down the estate intact to their line, reckoning that their widows would remarry and benefit from some other man’s property and goods. But the Body shows an understanding that this may not be the case, and that every husband has a duty to provide for his wife, and thus allows wills to be contested in the widow’s favor.
80. “Every married woman shall be free from bodily correction or stripes by her husband, unless it be in his own defense upon her assault. If there be any just cause of correction complaint shall be made to authority assembled in some Court, from which only she shall receive it.”
—No husband can beat his wife (“stripes” meaning whipping). A man bodily attacked by his wife can defend himself, but in all other cases, if a husband has a complaint against his wife (a “just cause of correction”) he can go to court and present his case. If the court finds a wife guilty of an offense—of breaking a law in the Body—the court will fine or otherwise punish her. Domestic disputes are the domain of the law, not the whip.
Liberties of Children
81. “When parents die intestate, the elder son shall have a double portion of his whole estate real and personal, unless the General Court upon just cause alledged shall judge otherwise.”
—This is fairly clear: an estate will be broken out amongst the surviving children, with the eldest son, if there is one, receiving a double share. The chances of a law- and lawsuit-loving Puritan dying without a will were likely small, but it could happen.
82. “When parents die intestate having no heirs male of their bodies, their daughters shall inherit as co-partners, unless the General Court upon just reason shall judge otherwise.”
—Women, even girls, can inherit land and estate from their parents. As we’ve mentioned before, it was rare for the Court to overturn a legal will, so women who inherited land and estate generally kept it.
83. “If any parents shall willfully and unreasonably deny any child timely or convenient marriage, or shall exercise any unnatural severity toward them, such children shall have free liberty to complain to authority for redress.”
—The old image of the stern, horrid Puritan father refusing to let his child marry—or forcing her to—is undone here, along with the image of the Puritan constantly beating his child. While children were not allowed to bring suit to or testify in court, they could be represented in court by an adult, and could give their testimony to that representative.
84. “No orphan during their minority which was not committed to tuition or service by the parents in their lifetime shall afterwards be absolutely disposed of by any kindred, friend, executor, township, or church, not by themselves without the consent of some court, wherein two Assistants at least shall be present.”
—A child whose parents die can’t be abandoned to a life of indentured service by uncaring relatives, their town government, or even their church. Unless a parent arranged for a child to go into service, that child had to be taken in and cared for by some family. This was so important that we see that not even a court could send an orphan into service without at least two Assistants—members of the governor’s council—hearing the case and agreeing. The Puritans believed in the necessity of nurture to raise up a godly child, and did not want extended families shirking their duty to orphaned nieces, cousins, grandchildren, etc.
Liberties of Servants
85. ”If any servants shall flee from the tyranny and cruelty of their masters to the house of any freeman in the same town, they shall be there protected and sustained til due order be taken for their relief. Provided due notice thereof be speedily given to their masters from whom they fled. And the next Assistant or constable where the party flying is harbored.”
—No servant has to endure harsh treatment, and all servants, male and female, have the right to leave a house where they are physcially harmed. Masters have to be told where the servant fled to, and the town constable (or, if in Boston, an Assistant) has to be told about the situation as well. Liberty 87 is also about violence against servants, specifically stating that a servant who is maimed or disfigured by a master’s abuse is immediately free from that master’s service and may be entitled to a cash settlement.
Liberties 86 and 88 deal with fair treatment of servants. 88 says diligent servants who have served for at least seven years can’t be dismissed without pay (“shall not be sent away empty”), and, conversely, bad servants can’t be dismissed until they have “made satisfaction” to their masters.
Liberties of Foreigners and Strangers
Liberty 89 protects religious and other refugees (“any people of other nations professing the true Christian religion [who] flee to us from the tyranny or oppression of their persecutors, or from famine, war, or the like… they shall be entertained and succored amongst us”); and Liberty 90 states that shipwrecks or foreign ships will not be looted but the goods “preserved in safety”.
Liberty 91 states that “there shall never be any bond slavery, villainage, or captivity amongst us unless it be lawful captives taken in just wars, and such strangers as willingly sell themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of God established in Israel concerning such persons does morally require…” This allows prisoners of war and Africans to be enslaved. The boggling clause in this liberty is “such strangers as willingly sell themselves or are sold”—thus equating voluntary entry into slavery and being forcibly sold as a slave. This is the first liberty in the Body to contain such a bald, disturbing contradiction, and keeps this liberty from truly limiting slavery to those, like enemy soldiers, who might possibly “deserve” it.
Of the Brute Creature
92. “No man shall exercise any tyranny or cruelty towards any brute creature which are usually kept for man’s use.”
—The same phrase used in the liberties concerning servants, “tyranny or cruelty”, is used here to prevent cruelty to animals.
93. “If any man shall have occasion to lead or drive cattle from place to place that is far off, so that they be weary, or hungry, or fall sick, or lame, it shall be lawful to rest or refresh them, for a competent time, in any open place that is not [a corn field], meadow, or enclosed for some particular use.”
—Land ownership was the be-all and end-all of the Puritans. Disputes over land were unending, as borders were disputed and people fought over who had rights to use common land (which was not purely common; people paid to use it). There were many disputes over livestock, as people sued for crop damage and destruction of property caused by animals allowed to stray off their own land. So to have a liberty here that says any animals who are being exhausted and endangered by a long journey have the right to graze and drink water on land that is not being used is a big deal. People at this time did not see any land as totally free—if land was not being used, it was fair game to be claimed. Travelers who rested animals on open land ran the risk of someone suing them because he had informally claimed that land. So long as animals did not trespass onto land that was clearly being tilled, they had the right to use the land themselves.
Thus end the special sections of the Body. We see that these sections do not represent every law or the only laws that applied to these categories of people and creatures, but are special cases that could only apply to these categories. There are many instances in the Body’s other sections where it is stated that the liberties being described apply to all inhabitants, be they strangers or servants or women or children. These sections, then, are like a little Bill of Rights for the minority populations, expressly stating liberties that are not made explicit within the other, general sections.
In the next post we’ll look at a very short section on capital crimes—one might expect that to be the longest section of a Puritan body of law, but it is not. It does, however, at last provide us with the single mention of witchcraft in the Body… which applies to men and women equally.Read Full Post | Make a Comment ( None so far )
Part 3 of our series on the 1641 Massachusetts Body of Liberties takes us to section 2, which focuses on judicial proceedings. It’s the longest section of the Body: 40 of the 100 laws in the Body are contained here. As Puritans enjoyed leisurely writing, we’ll paraphrase each of the laws, but if you’d like to read the whole Body of Liberties, and the codes of law that followed it and incorporated it, you can find it in libraries or for sale online under the title The Colonial Laws of Massachusetts: reprinted from the edition of 1660, with the supplements to 1672, containing also the Body of Liberties of 1641.
Liberty 18 allows people to post bail so they don’t have to stay in prison while they await trial.
Liberties 19 and 20 address midconduct by judges, establishing fines for “miscarriage” by a justice and censure for those who demonstrate misconduct in court (“demean themselves offensively in the Court”).
Liberty 22 sets fines for false claims and nuisance lawsuits. This ties in with Liberty 24, which states that if you bring a suit against someone and then are found to be at fault yourself, your suit will be dismissed, and with Liberty 37, which reiterates fines for false claims (“false complaint or clamor”).
Liberty 26 is interesting because it says that if you are unfit to plead your own case in court you can hire someone to represent you. When you study the Puritans you quickly learn that they were a litigious people, constantly bringing suits to court, and often very complex ones, but you might fail to register that there were no lawyers in Puritan Massachusetts. Many of the Puritans, including founder and governor John Winthrop himself, had been lawyers in England. But in their new world, they did not have lawyers. Everyone argued their own case in court. The Puritans had seen and bewailed the corruption of the English court system, and protested the use of legalese that average people could not understand. In Massachusetts, they rid themselves of both problems by getting rid of lawyers. Liberty 26 allows people to have someone else plead a case for them—with one significant detail: that person can’t be paid for his service (“Provided he give him no fee or reward for his pains”). There would be no professional lawyer class in Massachusetts if the original settlers had their way.
Liberty 30 says jurors can be challenged by both plaintiff and defendant in any case. “And if his challenge be found just and reasonable by the bench, or the rest of the jury, as the challenger shall choose it shall be allowed him [to have a new jury called].” This is a liberty no one had in England.
Liberties 32-35 are protections of individual liberty. The first allows a defendant whose goods have been seized to recover them, and the last forbids a court to seize crops that would be spoiled and ruined by the time a defendant is able to recover them. The other two make imprisonment a last resort (“no man [shall be] arrested or imprisoned upon execution of a judgment… if the law can find competent means of satisfaction otherwise from his estate”) and punish constant nuisance litigation (“vexing others with unjust frequent and endless suits”). The image many people have of scores of Puritans languishing in prison, victims of irrational laws or charges of witchcraft, are unfounded.
In fact, you may be noting that we are a good way into the Body without one mention of witchcraft, which many Americans today take to be the only crime Puritans acknowledged or cared about. We will see that there is only one mention of witchcraft in the entire body, and it is a passing mention. The Puritans, as we’ve mentioned elsewhere, believed in witchcraft but very rarely believed someone was a witch. Their courts were scenes of countless arguments over land, boundaries, and livestock, but rarely over witchcraft.
Liberty 36 allows for appeals by defendants found guilty in court, Liberty 41 demands a speedy trial (“…cases shall be heard and determined at the next Court”), and Liberty 42 says no one may be tried twice for the same offense—a pillar of our own justice system.
Liberties 43, 45, and 46 forbid cruel and unusual punishment—no whippings of more than 40 stripes, and no torture to force a confession… in most cases. If someone was found guilty of a capital crime, and it seems clear he had partners in that crime, then that person may be tortured to give up the names of his partners, “yet not with such tortures as be barbarous and inhumane.” It’s not clear what a humane torture may be, but it is clear that the Puritans knew what they meant, and drew a line between humane and inhumane torture, for they reiterate in the next Liberty, 46, “For bodily punishments we allow amongst us one that are inhumane, barbarous, or cruel.”
Liberty 48 established a Sunshine policy, states that every inhabitant of the colony has the right to “search and view” all court records, and to request written transcripts for a small fee.
Jury duty is covered in Liberties 49 and 50, saying no one can be forced to serve for more than two years in a row, and that all jurors will be chosen by the freemen of their towns (and not by the government in Boston).
The section wraps up with Liberty 57 saying that if there is a suspicious sudden death in a town, the constables of the town will summon a 12-person jury to carry out an inquiry, and present their findings and conclusions at the next Court.
Judicial proceedings were so important to the Puritans for a few reasons. As we’ve mentioned above, they chafed at the inefficiency and corruption of the legal system in England, and they wanted to create a truly just system in their own society in America. They also had a practical necessity for a clear, fast-moving legal process because they were constantly embroiled in lawsuits over land. As new settlers came in, people moved from place to place, bought land, left land in wills, etc., disputes over borders and plots, who had rights to use common land and wood lots, and a plethora of other issues came up continually. if justice did not move swiftly, violence could break out, as people took the law into their own hands. That’s why the Body sets up clear laws and clear procedures for bringing cases to court, and enforces swfit justice—every case being heard at the next Court session being held.
Note the practicality of these judicial liberties and you’ll find the myth of the rigid, all-powerful, and unjust Puritan court is exploded. These Puritan courts had juries elected by freemen, whose members could be challenged and dismissed by defendants in court. The judges could be fined and removed for miscarriage of justice. People had the right to appeal. People’s goods could be seized, but had to be returned to them if they were found innocent, and imprisonment was to be a last resort, not the norm. Many of the liberties of 1641 were new to the western world, and many clearly influenced the Founders of the United States, and are tenets of our own judicial system today.
We’ll turn next to “Liberties more particularly concerning the freemen”, or, more protections of individual liberty, as well as the divisions between church and state.Read Full Post | Make a Comment ( None so far )
Hello and welcome to part 2 of our series on Puritan law—specifically the 1641 Body of Liberties created by the Massachusetts Bay Colony. Last time we looked at the proto-democratic process by which these laws were created; here we focus on the first section of this body of 100 laws, which covers individual rights. We won’t look at each of the 17 laws in this section, for time’s sake, but pull out the laws that are most indicative of the nature or gist of the Body. If you’d like to read the whole Body of Liberties, and the codes of law that followed it and incorporated it, you can find it in libraries or for sale online under the title The Colonial Laws of Massachusetts: reprinted from the edition of 1660, with the supplements to 1672, containing also the Body of Liberties of 1641.
We should note here that “man” is used pretty consistently, except in the short section devoted to the liberties of women. That section, which we’ll cover later in this series, specifies a woman’s treatment by her husband, disallowing abuse and mandating that a wife be fairly treated in her husband’s will. Otherwise, it’s all about “men” in the Body. This does not mean that the laws that follow did not apply to women. It means two things: “man” was used to mean people; and some of the laws were about men only (such as the laws about military service). Women could be banished and fined just like men, so laws about those things applied equally to both sexes.
(All spelling has been modernized in the following excerpts.)
1. “No man’s life shall be taken away, no man’s honor or good name shall be stained, no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man’s goods or estate shall be taken away from him, nor any way indemnified under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published, or in the case of the defect of a law in any particular case by the word of God. And in capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the General Court.”
—This is the heart of the Body of Liberties; as discussed in part 1 of this series, the whole purpose of creating the Body was to have a set of laws to go by. No one is going to be sentenced to anything unless he has broken an actual law that has been made publicly known. Judgments will not be made according to some magistrate’s whim or personal feelings. People will know what the law is, and what the penalties are for breaking laws. The last part, regarding “the defect of a law in any particular case”, means that if there is some problem for which no law has been written as yet, the magistrates will turn to the Bible for guidance; however, if someone does something that seems to call for capital punishment in the Bible, the General Court will step in and “that word [of God] will be judged”. Here we see that when push comes to shove, human reason ranks above the word of God for the Puritans.
2. “Every person within this Jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law that is general for the plantation [the colony], which we constitute and execute one towards another without particularity or delay.”
—One law for all, no one above the law, and an early expression of the idea that justice delayed is justice deferred.
…12. “Every man whether inhabitant or foreigner, free or not free, shall have liberty to come to any public court, council, or town meeting, and either by speech or writing to move any lawful, seasonable, and material question, or to present any necessary motion, complaint, petition, bill, or information, whereof that meeting has proper cognizance, so it be done in convenient time, due order, and respective manner.”
—The law is open to all, no matter their status, and all men have the right to attend public meetings and participate in them, so long as their participation is respectful and the ideas or complaints they have are relevant to the body they’re addressing—that is, if you are in town meeting, you bring up town business and not colony-level business, and vice-versa.
14. “Any conveyance or alienation of land or other estate whatsoever, made by any woman that is married, any child under age, idiot or distracted person, shall be good if it be passed and ratified by the consent of a General Court.”
—While it is distressing to see women, children, and “idiots” lumped together as one category, this law actually states that it is not only men who may buy and sell land or goods (“estate”), and that is crucially important in a colony where land is the chief source of wealth. A woman may do what she sees fit with land she is left by her husband. (Women can also make their own wills, as guaranteed in liberty 11.) Underage children may make decisions about land left to them. The clause on “idiot or distracted persons” likely refers to people who made out wills when they were of sound mind but did not die of sound mind; those wills and the decisions in them will be upheld. All this is contingent on the General Court looking the decisions over and confirming them, but looking through the records of the colony shows that in most cases decisions made by this group were upheld.
We skipped laws in this section that prevent people from being fined for not responding to a court summons if they are incapable of geting to court, outlaw mandatory military service, ensure that no one can be forced to work on a government project, ban estate taxes, keep the government from seizing goods, and give people the right to move out of the colony whenever they like. Basically section 1 limits the power of the colonial government and secures individual liberties, that among these are life, liberty, and the pursuit of happiness. Yes, that line comes from a later document and another time, but we see here in section 1 of the Body of Liberties of Massachusetts early forerunners of those guarantees in our Declaration of Independence.
In section 2, we’ll look at Rights, Rules, and Liberties concerning Judicial Proceedings.Read Full Post | Make a Comment ( None so far )
Welcome to a short series on the first (but far from the last) codification of laws in the Puritan Massachusetts Bay Colony, the 1641 Body of Liberties. We’re going to look through this set of 100 laws to get a better picture of what government was really like in Puritan Massachusetts, and to counter the standard mantra that the colony was an oligarchy, with no separation of church and state. We will also disappoint most readers by showing that there is only one mention of witchcraft in the whole Body, and it is mentioned only in passing.
An oligarchy, of course, is a system of government that keeps power in the hands of a tiny minority of the people, generally the wealthiest, who basically oppress everyone else to keep themselves wealthy and in power. The last thing an oligarch wants is democracy, or the common voice helping to shape the law.
As we shall see, the Massachusetts Bay Colony was not an oligarchy at all, but a proto-democracy in which the common people not only helped shape the law, but were actually recruited by the magistrates in Boston to draft the first body of laws. Let’s look at the process by which the Body was created:
The MBC had as its governing document its charter of 1629, which stated that there should be a governor, deputy governor, and 18 assistants (magistrates). The assistants were to be chosen from the freemen of the colony. (One of the first acts of John Winthrop was to expand the definition of freeman to include basically all adult males in the colony.) The assistants would elect the governor and deputy governor from amongst themselves. The charter also stipulated that the assistants hold a court every month (to hear cases and complaints of the people) and that a General Court be held four times a year (where the freemen from each town drafted laws).
But the General Court did not meet four times a year, and the Assistants’ Court was drafting laws without the oversight of the freemen’s deputies, so in May 1634 at a meeting of the GC the deputies asked to see the patent. They demanded that they be allowed their proper role of drafting laws, but Winthrop said the number of freemen was too large to allow meeting—the Great Migration was in full swing, and the number would indeed have been pushing 1,000. Winthrop suggested that the freemen should elect deputies to attend the GC; each town could send deputies to Boston. Winthrop pictured these deputies reviewing laws drafted by the Assistants’ Court (like the Supreme Court reviews laws made by Congress).
The freemen, however, voted on May 14 to send three deputies from each of the eight towns then existing to the General Court to vote for the assistants and to draft laws. So now the freemen of Massachusetts were voting for their representatives and drafting their own laws. This itself is fairly astonishing to the student of history, for one would be hard-pressed to find an example of this type of proto-democracy anywhere else in the world in 1634.
But the people went further, and this is where the Body of Liberties comes in. The General Court made laws on an ad-hoc basis, hearing each individual case and deciding it. But many in the Court and outside it were worried that this could lead to injustice—to deputies “proceeding according to their discretions”; that is, letting their personal opinions sway their decisions. The colony needed an objective code of law that would not change from case to case. In May 1635 the deputies at the General Court voted to draft that code of law.
It wasn’t simple, though. Who should draft it? The deputies, with their subjective opinions? The Assistants, who could possibly establish an oligarchy by writing laws that gave them more power? While these questions were ironed out, the Court voted in 1636 that any law drafted had to have the support of both the Assistants’ Court and the General Court. The General Court also voted that three clergymen—Cotton, Peters, and Shepherd—submit drafts of laws. Why clergymen? In part, because they were seen to be objective; no minister was allowed to hold a government position, and so had nothing to gain by giving the government certain powers. In part, the colony was a religious society and valued the opinion of its ministers. That said, none of the three drafts was accepted, not even John Cotton’s; as the most respectd and celebrated minister in the colony, perhaps in all New England, he might have seemed a shoo-in, but he was not.
In March 1637, the GC was at an impasse, and so it drafted a letter to the freemen of the eight towns asking them to assemble in their towns and write up a code of laws they felt was just and send it to Boston by June 5. The governor and Assistants would then review them all and create “a compendious abridgement of the same” to give to the GC, which would have final review and approve or reject it. Again, this is a pretty surprising exercise of democracy for the time, but we find in November 1639 there’s still no progress. What caused the delay? Winthrop details two main reasons in his diary, a compendious abridgement of which follows here:
1. The people felt that rather than write laws to use in the future, laws should develop naturally over time and custom, as they had done in England. England never had a written constitution, of course, and the English emigrants in Massachusetts believed their laws should develop the same way.
2. Following on from the lack of a written English body of laws, many Puritans felt they were breaking a key tenet of their charter if they wrote a body of laws. The charter said the colonists could govern themselves as necessary, but should make no laws “repugnant” to the laws of England. Even writing out a body of laws was, in a way, repugnant to English law because English law was not codified. Aside from that, the risk of codifying something that wouldn’t jibe with English law was just too great.
So while the people of the colony wanted an objective body of laws, they were worried about just creating one on the spot, and worried about the consequences of codifying laws that did not exist in England. In the end, the need for a code overcame this resistance, first for the govenrment and then for the people. In 1639, two different codes were drafted by two ministers, and each was sent to the towns to be read to the people, who could revise as they saw fit. Knowing that there would be a code of law, consequences and custom be damned, led the people to at last act. They ended up approving a draft by Rev. Ward. This was revised several times by the governor and the courts, and at last on December 10, 1641—six years after the initial request to draft a code of laws—the Body of Liberties was copied and sent to all the towns, “and voted to stand in force.”
It’s an amazing background for a body of laws in the 17th century, and just this lead-up to the Body puts the lie to claims of oligarchy or dictatorship, and poor citizens being oppressed by laws they did not support, which is the usual picture of Puritan Massachusetts. We’ll look at a few of the 100 laws in the Body over the next few posts. The original Body was given a three-year trial, after which it could be either yanked or “established to be perpetual.” It would be established, and used as the basis for later bodies of law for the colony.Read Full Post | Make a Comment ( None so far )
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