As it happens, the court’s treatment of Marsh’s complaint as an intrachurch matter was consistent with the way English courts had viewed such matters for hundreds of years. Defamation lawsuits in England had been administered in ecclesiastical courts since the thirteenth century. Medieval church law called for the excommunication of persons uttering defamatory remarks. Complainants came to the ecclesiastical courts seeking not damages but penance. But in practice some accommodation between the parties often resulted from the process. Under canon law, doing penance usually involved making suitable amends to the person affronted.5 Whether this involved the exchange of apologies or the exchange of money would depend on the situation. Although the royal courts slowly began to offer the remedy of monetary damages in some defamation cases, the ecclesiastical courts continued to exercise jurisdiction over cases involving allegations of sexual misconduct well into the seventeenth century. In England, as well as New Haven, these matters were viewed as internal church affairs.6
Unlike contemporary English courts, whether ecclesiastical or royal, the General Court required no complicated pleading for a complainant to obtain a hearing. Marsh simply appeared before the court and stated her case. The matter was resolved on the spot, with reprimands to both parties. Whatever one thinks of the substance of its ruling, the ruling was made with admirable efficiency.
5
NEW HAVEN’S WATERGATE
We are, the psalmist tells us, conceived in iniquity and born in guilt (Psalm 51:5).1 Every society has its share of saints and sinners. Every so often, someone supposed to be a saint turns out to be a sinner instead. Such was the case with Thomas Fugill, pillar of the church and falsifier of records.
Fugill was one of the founders of the colony and quickly moved into positions of leadership. He was the secretary of the colony. The earliest New Haven records are actually in his handwriting. Soon after John Davenport was named pastor of the church, Fugill was named one of the church’s “seven pillars.” Given his important role in the colony, he would have been entitled to a prime division of land in the original settlement. Later, in 1641, the colony awarded him a “second division” of land near West Rock, on the outskirts of the settlement.
According to the official record of 1641, the specification of Fugill’s “second division” was generous. The record states (the exact wording would come to be important) that “Fugill is allowed his second division at the foot of the West Rock of the clear ground which is there, or so much of it as he desires, according to his proportion.” As we’ll see, Fugill desired quite a bit. He could certainly rely on the official record. That record had been personally written by the secretary of the colony—none other than Thomas Fugill.
Fast forward to 1646. Perhaps suspecting that something was amiss, the General Court ordered another of the original settlers, John Brocket, to visit Fugill’s second division and measure it. Brocket reported back that he had surveyed the land and found that, while Fugill’s “full proportion” of land in that area was twenty-four acres, Fugill had instead taken over fifty-two acres.
The court was not pleased. It asked Fugill “what warrant or ground” he had for doing what he had done. Fugill confessed his fault in fencing in the land without a surveyor and “his sinful miscarriage in taking in a quantity so far above his proportion.”
The court found this worthy of censure, but there was more to come. It turned out that the 1641 record had been falsified. The actual grant to Fugill had specified that his second division had to be more than two miles from the center of town, not granted to any other person, and bordered by two rivers in the area. Fugill’s official notes had left out both the two-mile limit and the reference to the rivers. Instead, his notes had added the clause “or so much as he desires.”
There was still more. Fugill had kept at least three sets of books. It appears that none of these books agreed with each other. Two of the books left out the clause “not granted to any other person.” All of them had added the clause “or so much as he desires.”
The local schoolmaster, Ezekiel Cheevers, decided to inspect more carefully the official record that Fugill had written down in 1641. When the book was viewed, it appeared that the clause “according to his proportion” was itself a late insertion, added “with other pen and ink, a less character and crooked, as with a trembling hand.” Cheevers proceeded to question Fugill about this matter “before the Governor and elders.” When Fugill began to justify himself, the governor stepped in.
“To prevent further rashness and sinful expression,” the governor cautioned Fugill that the book was within and he had viewed it. If the governor could judge the writing, “these words were added and written after the former part of the order with other pen and ink and with a different character.” When Fugill boldly offered to take an oath to the contrary, the book was brought out. The difference in the handwriting was so apparent that Fugill changed his story.
Fugill now said that he would take an oath that he had not written in the book after Cheevers had seen and reviewed it. At this point, Fugill’s second book was sent for and examined by the governor and elders. That book contained a similar addition, apparently in different handwriting, although a line drawn in blacker ink made the difference in handwriting difficult to discern.
The governor then told the court that he had privately warned Fugill that his protests and offers to take an oath were “bold and sinful.” In the governor’s view, “confident contradictions” would not “drive men from the truth they knew.” Moreover, as the governor saw it, “Oaths, even in certain truths, are not lawful until they are necessary and duly called for.” Instead, he reminded Fugill of the “rule” to “let your communication be yea, yea, nay, nay.” The governor explained that “profane men indeed in other places who little attend truth think they must swear that they may be believed, and in his [Fugill’s] place, it would be no other than a high breach of the third commandment.”
Fugill attempted to justify his taking the oath, but when reminded of the particular facts before the court, he “began again to turn and wind and so to evade the governor’s testimony but gave no satisfaction.”
Hearing this, some of the members of the court suggested it might be appropriate to choose another secretary of the colony. Fugill “confessed his unfitness for the place by reason of a low voice, a dull ear, and slow apprehensions.” The court told him that it “had long taken notice of sundry miscarriages through weakness or neglect, yet in tender respect to himself and his family, they had continued him in the place.” This, however, was the last straw. “They were called to lay aside these private respects for the public safety.” Fugill was promptly voted out of office.
Fugill’s troubles had not ended. Four months later, he appeared before the court to be sentenced “for his unrighteousness in taking and detaining of the town’s land and falsifying of orders.” Fugill pleaded that he had already lost his position as secretary of the colony and, in addition, the church had excommunicated him. He also pleaded that he had suffered great “bodily weakness.” The court, however, found further punishment appropriate. He was ordered to pay a fine of twenty pounds to the town. In addition, his land was “reduced to its due bounds, according to the first grant, namely between the two rivers and without the two miles.”
The trial of Thomas Fugill was surely an odd sort of trial not only by modern standards but also by sixteenth-century standards. Rather than being a formal trial commenced by some sort of official charge or accusation, the proceeding began as an investigation into the size of Fugill’s acreage and quickly metamorphosed into a trial concerning the falsification of records. Once again, of course, there were no jurors or attorneys to be found. The governor’s reprimand of