Scarcely anything indicates so accurately the predominant traits and
condition of a people at any given period, as do the laws by which they
are governed and the mode in which those laws are administered. Hence,
in studying the early history of Massachusetts much important aid may
be derived from the records of the courts and magistrates of that time.
These give us a tolerable correct idea of the laws then in force which
were designed to regulate the conduct of men in the various relations of
life and show what was the practical administration of those laws. This
is quite as true (perhaps more so), of the laws concerning what may be
termed minor offences or breaches of social duty, for which men were held
legally accountable, as it is of the graver crimes.
Some of the laws relating to this class of minor offences have undergone
changes within the last two hundred years, particularly since our
separation from the Mother Country.
These changes have been not so much in regard to the nature and
description of the offence itself, as in regard to the penalty. They
have in Massachusetts at the present time, and have had ever since the
American Revolution, laws against drunkenness, vagrancy, petty larceny,
libel and slander, profane cursing and swearing, Sabbath breaking,
unlawful games or plays, lewdness, common railing and brawling, and
idle and disorderly conduct generally. Our Colonial ancestors had laws
substantially like those in force so far as relates to the offences
themselves.
In fact, the present statutes on these subjects are many of them copies
of the provincial statutes. But the penalties are quite different. They
now punish breaching of these laws by a small fine or by imprisonment for
a short term, or by both. For similar breaches of the statute and common
law in the early history of Massachusetts some very different penalties
were provided. These were actually enforced in frequent instances, which
is hardly true of similar cases at the present day.
The Magistrates and Courts that administered the laws in Massachusetts
during the first century and a half after its settlement were full
believers in the propriety and efficacy of corporal punishment for a
certain class of transgressions. Having based their criminal code largely
upon that of Moses, they were well persuaded that, if in no case they
exceeded the Hebrew limit of forty stripes, they would have the Divine
sanction. With this illustrious precedent constantly in view as a rule
of action, they did not hesitate to apply the rod whenever it seemed
to them appropriate and adequate penalty for the offence. Crimes of a
graver character were dealt with by tribunals of larger jurisdiction and
punished by imprisonment or death. But for a large class of misdemeanors,
particularly such as were considered scandalous or tending to disorder
and of evil example, the rod was a very frequent instrument of punishment.
It was a matter within the discretion of the Magistrate to some extent.
This office was held by William Pynehon, of Springfield, Mass., for the
first eleven years, afterwards for half a century by John Pynehon and
his associates. In awarding this punishment of whipping little regard
seems to have been paid by the court to the sex or social position of
the offender. If the infliction of the penalty tended to disgrace the
culprit, the commission of the offence was in itself disgraceful. The
degrading punishment was regarded the just and proper sequence of the
disgraceful crime.
The constable was the officer by whom the sentence was executed, and the
public whipping post was the place. The time was sometimes the day on
which the court was held. Occasionally, the day of the weekly religious
lecture was designated as the time for the infliction.
Sometimes whipping was an alternative sentence to be inflicted if the
offender failed to pay his fine. Often it was the only punishment awarded.
Some instances will be given, taken from the records—most of them are
from the Pynehon record, containing cases tried by William Pynehon as a
Magistrate, and cases tried by his son, John Pynehon, in connection with
Eleziar Holyoke and Dr. Samuel Chapin who were commissioners appointed by
the General Court.