A People's History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped OurConstitution: Revised Edition

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Chapter One

"Morally Sinful by the
Word of God"

The Constitution of the United States was framed and ratified by men who had launched a successful revolution to free the American colonies from British rule. Throughout recorded history, most revolutionaries—those who succeed and those who fail alike—have been determined to uproot and replace the political and legal systems against which they fought at risk of life and property. The American revolutionaries were an exception to this general rule. They based their opposition to British rule not on rejection of British law but on the repeated failure of the king and his governors to abide by that law. In his final draft of the Declaration of Independence, Thomas Jefferson listed twenty-seven counts of an indictment of King George; thirteen accused the king of violating British law in subjecting the colonies to "tyranny." Jefferson pointed to "the free system of English laws" as the foundation of governments that derive "their just powers from the consent of the governed." The men who signed the Declaration were schooled in English law and simply wanted to rid the colonies of arbitrary enforcement of laws they had no voice in shaping.

    British law came to the American colonies with the first settlers, most of whom brought with them a fierce determination to protect the rights of English "freemen" against the religious and political persecution that many had suffered as dissenters in their native land. Not all those who joined the growing wave of immigrants shared this respect for British law; some rejectedentirely the notion of secular law and sought to impose on their fellow colonists a "theocracy" of biblical law, while others were "outlaws" who had been exiled for violating criminal or civil laws in England. But the colonists, in the main, wanted to retain the basic forms and substance of a legal system that had governed them and their forebears for centuries.

    British law could not, of course, be lifted bodily from London and the English counties and transplanted without change into "New" England or Maryland or Virginia or any other colonial province. Legal structures and rules that reflected the feudal system of land tenure and servitude in England could not easily be adapted to colonies in which land was plentiful and laborers could bargain with employers over terms of work and wages. Change was necessary, in law as well as in the social relations that law governed. At the same time, tradition had a powerful pull on the colonists who grew up under English law. They copied, often with little change, the complex and archaic system of English courts that enforced the system of royal justice: courts of common pleas, courts of chancery, courts of admiralty, and others with jurisdiction over special matters.

    The colonists also brought with them a judicial system that gave local "justices of the peace" the authority to bring disputants before the bench and settle most criminal and civil matters. These judicial officers, of course, acted in the king's name and could enforce their judgments with the king's power. With few exceptions, they were men of means and stature who were chosen to hold the king's commission because they supported the monarchy and protected the "peace" of the community against dissent and disruption. However, these local justices knew most of the people who came before them and rarely applied the full force of the law against those whose transgressions did not threaten the fabric of the community. Most criminal sentences or civil judgments were modest and admonitory rather than harsh and crippling. One reason for this relative "softness" was that labor was scarce in the colonies and anyone willing and able to work was valuable to the community. The exceptions were punishments of those considered unrepentant or irredeemable, or whose crimes violated the biblical injunctions that had been enacted into law. For example, a few men in Massachusetts who were convicted of bestiality or buggery (the old term for homosexual sodomy) were executed, and a handful of women were whipped for bearing bastards. In these cases, sentences were imposed and executed by higher courts than local justices, whose jurisdiction was generally limited to misdemeanors.

    Criminal law in the colonies varied from one jurisdiction to another, but in many respects it provided more rights to the accused than in the mother country. Most colonies allowed defendants to be represented by lawyers, a right not extended to English felony defendants until 1836. During the seventeenth and eighteenth centuries, colonial lawyers developed thriving criminal practices, and courtrooms were often packed with spectators who flocked to enjoy the thrust and parry of adversarial combat. Waitstill Avery, a prominent North Carolina lawyer, successfully defended Paul Crosby against a petty larceny charge and boasted in his diary that he was quickly "surrounded with a flood of clients and employed this term in no less than 30 actions."

    The colonists also jealously protected their right to trial by jury, a practice often ignored or dismissed in England, where summary decisions by justices of the peace displaced a right first stated in the Magna Carta. Not all colonial defendants took advantage of this right, preferring (often with good reason) to place their fate in the hands of judges, who were usually educated and relatively impartial, thus avoiding the verdict of a jury of neighbors who knew, through direct observation or gossip, facts in the case that had not come out during trial. In addition, jurors could be influenced by their knowledge of the defendant's other (and usually unpunished) personal flaws and foibles.

    On the other side of the ledger, local jurors could protect defendants who were clearly guilty from penalties that many felt were excessive, or from laws that jurors considered arbitrary and unfair. The practice of "jury nullification" of laws, against which judges and prosecutors have railed for centuries, took root in the colonies as a protest against unfair prosecutions by English officials. The most famous instance of nullification took place in 1735, when jurors in New York found John Peter Zenger not guilty of seditious libel. An outspoken newspaper publisher, Zenger had printed articles that accused colonial governor William Cosby of trampling on the legal rights of New York's residents. Zenger's lawyer, Andrew Hamilton, appealed to the jurors to disregard the direct instructions of Judge James Delaney (a political ally of Governor Cosby) that the "truth" of the published accusations was no defense under English law. The jurors heeded Hamilton's passionate argument and promptly acquitted Zenger, a verdict that not only set a precedent for later American law but also encouraged other appeals for jury nullification in cases of lesser import. Defending a client in a debt collection case in 1771, John Adams told jurors that if they disagreed with a judge's instructions on the law, each juror with "any feeling or conscience" should consider it "not only his right but his duty in that case to find the verdict according to his own best understanding, judgment and conscience, tho in direct opposition to the direction of the court."

    Even though the colonists took pains to provide fair and impartial legal procedures for those accused of criminal behavior, the substance of their laws reflected the stern morality of their Puritan faith, tempered by concern for the rights of "freemen" to be treated equally. The settlers of Plymouth Colony enacted their first legal code in 1636, and were followed by their neighbors to the north in the Massachusetts Bay Colony, who adopted a "Body of Liberties" in 1641 that added protections for "freeman" to the Plymouth code. In many respects, these early legal codes foreshadowed the protections against arbitrary governmental power that were enshrined in the Constitution through adoption of the Bill of Rights in 1791, a century and a half later. The Body of Liberties spoke with the spirit, and even much of the language, of the Due Process Clause of the Fifth Amendment and of the Equal Protection Clause of the Fourteenth Amendment, which was not added to the Constitution until the nation had suffered a bloody Civil War.

    Governor John Winthrop of Massachusetts Bay Colony delegated his friend Nathanial Ward to draft the Body of Liberties. Ward brought to this task ten years of experience as a lawyer in the common-law courts of England, but he later entered the ministry and served the Plymouth Bay town of Ipswich as a testy, outspoken Puritan pastor. He denounced from his pulpit and in pamphlets all dissenters from Puritan orthodoxy, warning them "to keep away from us; and such as will come, to be gone; the sooner the better." The document he drafted, and the colonists adopted to govern themselves, reflected the tension between Ward's secular and sectarian roles. The Body of Liberties first proclaimed the colonists' intention to provide "such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion" and to guarantee that these rights will be "impartially and inviolably enjoyed and observed throughout our jurisdiction for ever." In words that were later echoed in the Bill of Rights, the Body of Liberties pledged: "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's goods or estate shall be taken away from him, nor in any way indamaged 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...." The colonists also promised: "Every person within this jurisdiction, whether inhabitant or foreigner shall enjoy the same justice and law, that is general for the plantation, which we constitute and execute one towards another without partiality or delay."

    It would be hard to find a comparable legal code of that time, or even today in many parts of the world, that established in such clear terms the principles of fair and equal treatment that the Supreme Court only began to enforce for all Americans in the latter half of the twentieth century. The Body of Liberties even provided the protections now found in the Double Jeopardy Clause of the Fifth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment. The colonists stated: "No man shall be twice sentenced by civil justice for one and the same crime, offence, or trespass," and "For bodily punishments we allow amongst us none that are inhumane, barbarous or cruel."

    However, in drafting those parts of the criminal code that set out "Capitall Crimes" and punishments, Nathaniel Ward abandoned the noble sentiments and legal protections of the English law and turned for guidance to the stern morality and severe penalties of the Mosaic Code in the Old Testament. In this respect, the Puritans of New England were heeding the admonition of John Calvin, the sixteenth-century Swiss preacher and theologian to whose writings they looked for guidance. Calvin wrote in 1559: "God hath put the sword into the hands of magistrates to suppress crimes against ... the law of God." The Puritans feared the God of vengeance more than they sought the warmth of the God of forgiveness. Ward heeded the admonition of Governor Winthrop to base the laws on "the fundamentals which God gave to the Commonwealth of Israel" in the biblical commands to Moses. Stating his purpose as punishing "anything that can be proved to be morally sinful by the word of God," Ward took pains to note in the margin of each provision of the criminal code he drafted the book, chapter, and verse in the Bible that gave divine sanction to the crime and punishment in the Puritan code.

    Ward began his listing of capital crimes not with murder but with the most serious affront to Puritan orthodoxy, that of idolatry: "If any man after legal conviction shall have or worship any other god, but the lord god, he shall be put to death." The biblical citations that Ward provided for this provision included the verses in Chapter 17 of Deuteronomy in which Moses told the Israelites that any person who has "served other gods and worshipped them" shall be brought before the people "and you shall stone them to death." In a break with biblical commands, the Puritans recoiled from this form of execution and substituted hanging from a public gallows.

    Second on the list of capital crimes was witchcraft, a law applied with a vengeance in the Puritan town of Salem in 1692. Nathaniel Ward had warned in his preaching and pamphlets against "Familists," by which he meant those who communed in their worship not with the "Lord God" of the Bible but with "familiar spirits" who were considered to be the Devil's agents on earth. The law he drafted stated: "If any man or woman be a witch (that is, hath or consulteth with a familiar spirit), they shall be put to death." There was more than a whiff of misogyny in Ward's attacks on witchcraft; all but one of those accused in Salem and other towns of consulting with "familiar spirits" were women. The records in the witchcraft cases suggest that their crimes had less to do with biblical injunctions against "sorcery" or "calling up the dead" than with challenges to male control of the Puritan faith and state, which subjugated women to men in churches and government. Whether or not he foresaw its consequences, the witchcraft law that Ward drafted led to the executions of nineteen women, who were all hanged, and one man, Giles Corey, who was pressed to death with heavy stones.

    The Puritan obsession with "familiar spirits" and witchcraft did not, of course, set the New England colonies apart from England and continental Europe in the sixteenth and seventeenth centuries. Periodic frenzies of "witch trials" resulted in the executions, often by burning at the stake, of hundreds—perhaps thousands—of suspected and actual "witches." There is evidence that some women in Salem did practice various kinds of "witchcraft" by performing occult rituals and casting spells. But most of those accused were girls and young women who were simply the victims of religious paranoia and fanaticism. The fact that witchcraft was made a capital crime in the Body of Liberties reflected the Puritan zeal to extirpate every dissident and unorthodox religious practice, in particular those led by women who challenged the male control of church and state.

    The Body of Liberties also prescribed capital punishment for sexual practices that were condemned in the Mosaic Code. Nathaniel Ward included bestiality, homosexual sodomy, and adultery as crimes punishable by death. Again, the marginal citations to Old Testament books provided biblical sanction. Executions for these sexual crimes were infrequent, but a few offenders did suffer the ultimate penalty; one young man was hung for having sex with a sheep, and the animal was also killed, as both the Bible and the Puritan law required. The records of the colony show that although prosecutions for fornication and adultery were common, penalties were generally light and only two married persons were executed for this crime. Today, many Americans are shocked and sickened by news accounts of public executions in countries such as Afghanistan or Saudia Arabia, often carried out by stoning or beheading, for crimes such as adultery and homosexual sodomy. We tend to forget that those Islamic countries that have enacted the religious law of the Koran into their criminal codes are separated only by time and distance from the religious moralists of the New England colonies.

    Looking at the Body of Liberties as a whole, and the records of the colonial courts, it is clear that the Puritans did not intend or attempt to create a literal "New Jerusalem" in New England. Incorporating much of the Mosaic Code into law served more to impress upon the residents of this wilderness outpost their need to "purify" their lives than to exact the biblical sanctions in every case. Holding in reserve the ultimate penalty of death, and its occasional use as a warning to others, served the function of social control in a society based on outward conformity but with fairly high levels of "morally sinful" behavior. The work of modern historians shows that many colonists, even those who sat through endless Puritan sermons, were just as likely to violate the social and sexual taboos of their "Bible-based" society as are contemporary Americans, despite the extreme penalties they faced for their transgressions.

    The criminal laws and penalties of the New England colonies, at least in the statute books, were more harsh than those of other colonies. But they were decidedly less severe than those of England, where in the seventeenth century more than a hundred crimes were punishable by death. In this area of law, factors such as the need for labor, the absence of rigid social roles based on feudal distinctions between "serfs" and "lords," and the granting of "freeman" status to most males who owned some property, produced in the colonies a greater emphasis on community norms of behavior and shared religious beliefs. The civil laws and court procedures of the colonies also reflected a more fluid and egalitarian social structure than that of England, where feudal laws of inheritance, land tenure, and commercial transactions had created and maintained an archaic legal system more suited for the Middle Ages than for a time of exploration, expansion, and emigration. The American colonies, in contrast to the mother country to whose monarchs the colonists swore allegiance, believed in the promise of the Body of Liberties of Massachusetts Bay that "every person shall enjoy the same justice and law."

    The promise of equal justice, however, extended only to the "freemen" of the colonies. This favored group, in fact, made up only a small minority of the colonial population. The ranks of freemen were generally limited to white males who owned some property and who belonged to the dominant religious denomination of the colony. In short, the freemen were the precursors of the WASP (or White Anglo-Saxon Protestant) elite that owned and operated American business, government, and culture for more than three centuries, and that still maintains a disproportionate share of power in these areas. In the process of taking power for themselves, the freemen of colonial America consciously employed the legal system to keep the members of other groups in subordinate roles. Four groups in particular were excluded from the ranks of "every person" to whom the colonists gave their promise of equal justice. Those who received less justice—in some cases, none at all—included religious dissenters, women, African slaves, and the Indians who occupied the land before the colonists arrived.

There is a powerful irony in the disparity between the myth of colonial America as a haven for religious dissenters from the orthodoxy of the Church of England and the reality of intolerance toward those who challenged the new orthodoxy of the colonists. It was an awareness of this irony, and a revulsion at religious intolerance, that prompted the men who framed the Bill of Rights to provide in the First Amendment that Congress "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." During the century and a half that separated the Body of Liberties of the Massachusetts Bay Colony from the adoption of the Bill of Rights in 1791, religious conflict affected virtually every village and town in every colony.

    Two episodes in Massachusetts illustrate the divisive effects of religious intolerance. The first was the expulsion of Roger Williams from the colony in 1636, which led to the establishment of the new colony of Rhode Island. Williams had come to Boston in 1631 as a Puritan pastor; he soon became minister of the church in Salem. During his formative years in England, Williams studied under the great jurist Edward Coke, who defended both political and religious freedom within the narrow confines of laws against "seditious libel." Williams became a controversial figure in Salem, from whose pulpit he denounced the notion that civil authorities could enforce religious edicts. These views so offended his parishioners and the political leaders of the colony that Williams left Salem after a few months for the relative tolerance of the church in Plymouth, where he continued his attacks on the Puritan theocracy. "Let any man show me a commission given by the Son of God to civil powers in these spiritual affairs of His Christian kingdom and worship," Williams demanded in a pamphlet that enraged Puritan leaders. For this heresy, the General Court of Massachusetts expelled Williams from their midst.

    The second religious dissident was poles apart from Roger Williams in theology, but equally a threat to Puritan orthodoxy. Williams was, in some ways, more of a Puritan than those who condemned and expelled him. He argued against admitting to worship those "unregenerant" Puritans who attended Church of England services on visits to England. Anne Hutchinson, on the other hand, resisted Puritan worship altogether. She held services in her home and preached to those who attended her "study" sessions—mostly women—the heretical doctrines that salvation comes through grace and not through work, and that the Holy Spirit can dwell within every person through individual revelation. Despite her social prominence—her husband was a close friend and ally of Governor John Winthrop—Anne Hutchinson so directly challenged Puritan orthodoxy that she found herself facing trial before the General Court in 1637, with Governor Winthrop as the chief prosecutor and interrogator.

    The transcript of this historic trial offers an insight into the conflict between individual conscience and state power that continues to divide Americans. Far more knowledgeable than Winthrop on biblical scripture, Hutchinson continually bested him in debates over fine points of theology. She turned the tables on Winthrop, questioning him so relentlessly that he finally admitted that Hutchinson had biblical support for the main charge against her, that of preaching a doctrine of personal revelation of God's word. "How did Abraham know that it was God that bid him offer his son" for sacrifice? she demanded to know from Winthrop. "By an immediate voice," he responded. Hutchinson pounced on the governor. "So to me by an immediate revelation," she said of her views on salvation by grace. "By the voice of his own spirit to my soul." Winthrop was so enraged at falling into Hutchinson's trap that he quickly called a vote on the heresy charges and secured a conviction with only three dissents. The penalty was banishment from the colony. Anne Hutchinson and John Winthrop had one last exchange. "I desire to know wherefore I am banished," she asked. The governor's answer spoke volumes about colonial limits on the rule of law. "Say no more," Winthrop replied; "the court knows wherefore and is satisfied." Anne Hutchinson left the colony in 1637 and settled in Rhode Island, the tiny outpost of religious tolerance in New England.

    The expulsions of Roger Williams and Anne Hutchinson took place early in the colonial era, and they exemplify the extremes of religious intolerance in the most intolerant colony. By the time of the Revolution, advocates of toleration spoke with louder voices and demanded the "disestablishment" of the churches that controlled most of the colonies. James Madison of Virginia, the primary author of the Bill of Rights, deserves the greatest credit for moving the country toward religious toleration of dissenters. In 1774, Madison wrote to a friend that the "diabolical, hell-conceived principle of persecution rages among some" in Virginia. "There are at this time in the adjacent county not less than five or six well-meaning men in close jail, for publishing their religious sentiments, which in the main are very orthodox.... I have squabbled and scolded, abused and ridiculed so long about it, that I am without common patience."

    Madison continued his crusade for religious toleration through the Revolution and into the period of independence. His patience was still taxed by efforts of the Church of England in Virginia, renamed the Episcopal Church, to retain its status as the established denomination. Working closely with his friend and mentor Thomas Jefferson, Madison drafted and the Virginia legislature enacted in 1785 "An Act Establishing Religious Freedom." The law provided that "no man shall be compelled to frequent or support any religious worship, place, or ministry whatever, ... nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities." Jefferson later wrote that Madison's law was "meant to comprehend within the mantle of its protection the Jew and the Gentile, the Christian and Mahometan, the Hindu and Infidel of every denomination."

    Jefferson's words reveal an attitude toward religious diversity that the Puritans had totally rejected. But it took another century and a half before the Supreme Court first began to enforce Madison's crowning achievement, the religion clauses of the First Amendment. And even today, despite Jefferson's words, Jews and Muslims, Hindus and atheists, the "infidels" of our time, face hostility in communities across the country in which latter-day Puritans try to enforce their opposition to "anything that can be proved to be morally sinful by the word of God."

The exclusion of women from government, church, and the courts did not set the colonies apart from England, or from any other country at that time. Their legal status as "wards" of husbands stemmed from centuries of English common law and biblical precepts that reflected male domination of every institution in society. Saint Paul laid down as Christian doctrine in his letter to the Ephesians the attitude toward women that became written into English and colonial law: "Wives, be subject to your own husbands, as to the Lord. For the husband is the head of the wife, as Christ also is the head of the church, He himself being the Savior of the body. But as the church is subject to Christ, so also the wives ought to be to the husbands in everything."

    The legal term for the status of married women was "coverture," which meant that wives were "covered" by their husbands in all areas of life, especially the control of property. With few exceptions, husbands could buy and sell property of any kind, real or personal, without the wife's permission. In turn, wives could rely on courts to force husbands to provide them with the necessities of food, clothing, and shelter. An English resolution, submitted to Parliament in 1632 at the time of the Puritan settlement of Plymouth Bay, set out "women's rights" in these terms: "Eve, because she had helped to seduce her husband, had inflicted upon her a special bane. See here the reason ... that women have no voice in Parliament. They make no laws, they consent to none, they abrogate none. All of them are understood either married, or to be married, and their desires are to their husbands. The common laws here shaketh hands with divinity."

    In one respect the laws of most colonies provided women with a right not shared by their sisters in England. Although a Protestant country, England retained the Catholic attitude toward divorce and made it virtually impossible to obtain. Perhaps because of Puritan abhorrence of Catholicism, the Plymouth Bay colony and most others allowed for divorce in cases of adultery and desertion. The Connecticut law of 1656 provided that "if any married person [be] proved an adulterer or an adulteress, ... a separation or divorce shall, by sentence of the Court of Magistrates, be granted and published, and the innocent party shall in such case have liberty to marry again.... That if any husband shall, without consent, or just cause shown, willfully desert his wife, or the wife her husband, ... the husband or wife so deserted may justly seek and expect help and relief, according to I Corinthians 7:15." The reference in this law to Saint Paul's command that if an "unbelieving" spouse leaves a "believer" in Christ, "the brother or the sister is not under bondage in such cases" reflects again the colonial coupling of law and scripture, even though most colonists regarded marriage as a civil contract, with legal remedies available for its breach.

    The court records of the colonies show both the legal status of women as a form of property and regard for their well-being in cases of husbandly neglect or abuse. The Plymouth Bay court in 1659 ordered "the wife of John Spring of Watertown," who had deserted him several years earlier, "to return with all convenient speed to her husband.... In case she shall refuse to attend this order, the court will take a speedy course to send her to her said husband." On the other side, a jury in the same court in 1666 found that John Williams had defamed his wife, Elizabeth, by calling her a "whore" and ruled, "It is not safe or convenient for her to live with her husband, and gives her liberty at present to depart from him.... The court orders him to apparel her suitably at the present, to furnish her with a bed and bedding and such like necessaries, and to give her ten pounds yearly while she shall be thus absent from him."

    The voices of women who chafed under the bonds of paternalism in the colonial period were few and faint. Even Abigail Adams, the strong-willed wife of John Adams, the revolutionary leader and future president, confined her feminist complaints to letters to her husband. Shortly before John Adams helped in drafting the Declaration of Independence in 1776, Abigail wrote to him: "I long to hear that you have declared an independency—and by the way, in the new code of laws which I suppose it will be necessary for you to make I desire you would remember the ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice and no representation."

    This early (and private) appeal for women's suffrage fell on deaf ears. After the Revolution, the legal status of women slowly improved, particularly in the reformation of property laws. The New York legislature passed a law in 1849 that discarded the doctrine of coverture and provided that "Any married female may ... convey and devise real and personal property, and any interest on estate therein, and the rents, issues and profits thereof in same manner and with like effect as if she were unmarried." But women were still denied a voice in making the laws until Congress and the states amended the Constitution in 1920 and granted women the right to vote. And not until 1971 did the Supreme Court, in striking down a state law that gave preference to men over women in administering estates, rule that women were covered by the Equal Protection Clause that granted legal rights to former slaves.

Slaves, of course, had no legal rights in colonial America. They were ruled by law, but they had no recourse to the courts to enforce the rights that white "freemen" enjoyed. The importation of Africans into the colonies began in 1619 (some accounts say 1620) with the arrival in Virginia of a "Dutch man of war" that carried a cargo of twenty blacks. These first African Americans were not, in fact, brought as slaves but as indentured servants, who would be freed after serving their masters for a term of years. Some of these early black arrivals later showed up on the colony's rolls as free men. Although court records and statutes in Virginia and other southern colonies mentioned blacks in the forty years after 1619, their legal status was unclear before 1659, when the Virginia legislature first passed laws that used the term "slave" and applied it solely to blacks. After that time, virtually all blacks imported into the colonies arrived as slaves and were generally sold at auction.

    The differences between northern and southern colonies over the legal status of blacks were slight, since all the colonies (even the Quaker colony of Pennsylvania) accepted the institution of slavery. The colonies differed largely in the number of persons held in slavery and the harshness of the southern "black codes" that provided for the whipping and execution of slaves who tried to escape or had the audacity to disobey or assault their owners or other white people. The Body of Liberties of Massachusetts Bay colony stated in 1641: "There shall never be any bond slavery ... amongst us unless it be lawful captives taken in just wars, and such strangers as shall willingly sell themselves or are sold to us." These loopholes, of course, allowed for slavery in Massachusetts, and the colonial census of 1754 listed 2,445 black slaves over sixteen years of age. At that time, slaves made up almost 20 percent of the male laborers in New York City and Philadelphia.

    The southern colonies had far more slaves than their northern neighbors and far more problems with "refractory" slaves who resisted their masters. The "black codes" of the South were designed to keep slaves "in their place" by force and violence. The Virginia legislature passed a law in 1669 that acknowledged the difficulty of dealing with "the obstinacy of many of them by other than violent means" and provided that "if any slave resist his master ... and by the extremity of the correction should chance to die," the owner would be "acquit from molestation" and suffer no penalty. Southern colonists also feared, with some reason, that their slaves might plot or actually rebel against their condition. To prevent and punish such rebellions, the Virginia legislature provided in 1723 that "if any number of negroes" shall "consult, advise, or conspire, to rebel or make insurrection, ... they shall suffer death."

    Surprisingly, one of the harshest applications of law against slaves took place not in the South but in New York City in 1741. The greatest danger in the cities of that time was fire, since most buildings were constructed of wood and firefighting equipment was rudimentary. A series of eight fires in the span of five days spread fear throughout the city, and suspicion centered on a group of slaves who congregated at an alehouse on the waterfront. After a roundup of slaves and quick trials, thirteen blacks were convicted of "treason" and burned at the stake, sixteen slaves were hanged for arson (along with four whites), and another seventy blacks were banished from the colony. The fevered reaction to the supposed Slave Conspiracy of 1741, particularly in the convictions and executions for "treason" against masters, illustrated the role of law in keeping slaves in subjugation.

    The institution of slavery, and the "black codes" that enforced white rule, endured for almost a century after the Declaration of Independence proclaimed that "all men are created equal" and are equally endowed with the rights of life and liberty. Even after the Thirteenth Amendment to the Constitution abolished slavery and the Fourteenth Amendment extended the "equal protection of the laws" to the former slaves, the Supreme Court in the 1880s and 1890s struck down civil rights laws and upheld the Jim Crow laws that replaced the "black codes" of the colonial era. The legacy of slavery and efforts to redress its impact on African Americans continue to divide Americans, including those nine Americans who sit on the Supreme Court.

The people who received the worst treatment from the Puritans and other colonial settlers, and the least protection from their laws, were the Native Americans—known as "Indians" at the time, because Columbus was searching for India in 1492. From the very beginning of English settlement, relations between the Indians and settlers were marked by conflict. Even during times of relative peace and accommodation, the relentless search for new lands by the settlers created animosity on both sides, which flared into open warfare that lasted more than three centuries before the last resisting Indians finally succumbed to armed force near the end of the nineteenth century. The schoolbook myth of Pilgrims living in peaceful harmony with their Indian neighbors, sharing Thanksgiving feasts and native festivals, illustrates the fact that official history is written by the winners. Indians were the losers in virtually every battle with the colonists who forced them from their lands.

    The first English settlers in Virginia built their village of Jamestown in the midst of an Indian confederacy led by Chief Powhatan. During the brutal winter of 1610, the "starving time" for the English, Powhatan maintained an attitude of coolness toward the settlers, but his people fed the whites who fled into the wilderness in search of food. When the governor asked Powhatan the next summer to return the refugees, he replied—according to the English account—with "noe other than prowde and disdaynefull Answers." The governor then sent English soldiers "to take Revendge" on the Indians. They burned an Indian village, cut down the corn around it, killed fifteen or sixteen Indians, forced the tribe's queen and her children into boats, and then threw the children overboard and took sport in "shoteinge owtt their Braynes in the water." After this massacre, the Indians waited twelve years before exacting their own revenge, killing 347 English settlers in a bloody rampage through the colony.

    From that time on, open warefare raged between the Indians and colonists. A noted historian of the colonial period wrote of the English response to the 1622 massacre: "Since the Indians were better woodsmen than the English and virtually impossible to track down, the method was to feign peaceful intentions, let them settle down and plant their corn wherever they chose, and then, just before harvest, fall upon them, killing as many as possible and burning the corn.... Within two or three years of the massacre the English had avenged the deaths of that day many times over."

    The settlers of Plymouth Bay colony waged their own wars against the Indians with equal violence, fueled by biblical conviction that God had given the land to them. The Puritans employed the legal fiction that land on which Indians grew crops was "virgin" land because the Indians did not use proper (that is, English) methods of farming. In reality, the Indians employed a slash-and-burn agriculture better suited to the land than English plowing and planting. Governor John Winthrop, however, argued that because the Indians had not "subdued" the land for fields and meadows, the entire colony was legally a "vacuum" and that Indians had only a "natural" right to their lands and not a "civil right" that could be legally enforced. The Puritan settlers poured into this "vacuum" and took legal title to lands they "purchased" from Indians with deeds that were full of archaic English legal terms the Indians did not understand. The greatest source of misunderstanding was over the English concept of absolute possession of property. English common law provided that holders of land in "fee simple" could evict and prosecute any trespasser. Indians believed they had only given the colonists in these deeds the right to hunt and "traverse" the land, not to make permanent settlements. Over this legal misunderstanding—which the colonists did nothing to erase—much blood was shed on both sides.

    Conflicts with the Pequot Indians of southern New England simmered until 1636, when the murder of a white trader accused of kidnapping Indians led Governor Winthrop to give his troops a "commission to put to death" the Indian men of Block Island and to seize "some of their children as hostages" for the surrender of the murderers. The Puritan soldiers not only killed the Pequot men of Block Island but went up and down the coast of Long Island Sound, burning villages and crops. Winthrop's military commander, Captain John Mason, decided to avoid facing Pequot warriors in open combat and instead to burn all the villages and massacre those who could not escape. William Bradford, former governor of the colony, celebrated the results in these words: "Those that scaped the fire were slaine with the sword; some hewed to peeces, others rune throw with their rapiers, so as they were quickly dispatchte, and very few escaped. It was conceived they thus destroyed about 400 at this time. It was a fearful sight to see them thus frying in the fyer, and the streams of blood quenching the same, and horrible was the stincke and sente there of, but the victory seemed a sweete sacrifice, and they gave the prayers thereof to God, who had wrought so wonderfuly for them, thus to inclose their enemise in their hands, and give them so speedy a victory over so proud and insulting an enemie."

The colonial period ended with another bloody war, this one waged by rebellious colonists against their English rulers. Ironically, the colonists who had deprived most of the population—religious dissenters, women, slaves, and Indians—of legal rights and voices in governance based their Declaration of Independence on pious claims that "all men are created equal" and that governments must derive "their just powers from the consent of the governed." Those who drafted and signed this solemn declaration in 1776 firmly believed in its principles and protestations, but they were all white men of property who simply did not comprehend that people unlike them had been equally "endowed by their Creator" with the same "inalienable rights" they claimed for themselves. And so, when another group of white men of property met in Philadelphia in 1787 to draft a constitution for the United States, they brought to this task the same lack of comprehension. The dispossessed and disenfranchised groups that had no voices in the Constitutional Convention were forced to wait almost two centuries until their own declarations of independence were heard—if not always heeded—by the Supreme Court.