Angela Fernandez

Record-Keeping and Other Troublemaking: Thomas Lechford and Law Reform in Colonial Massachusetts

Historians have long discussed the different ways in which the first professional lawyer to practice in Massachusetts Bay Colony, Thomas Lechford, was at odds with colony authorities in his three-year stay there—from June 27, 1638 to August 3, 1641. Some accounts have focused on his religious views, since Lechford disagreed with the strict forms of church membership prescribed by the colony's religion, Congregationalism. When he returned to England, Lechford wrote a book called Plain Dealing in which he argued against this form of religious organization, claiming that he had received enough first-hand experience to recommend a return to the Church of England.¹ This book has been an important source of information on religious and political arrangements in colonial Massachusetts, and so for many, the picture of Lechford as religious dissenter is familiar.² Another important picture of Lechford, especially familiar to historians of the American legal profession, is Lechford the impecunious lawyer disbarred for the unethical practice of law.³ Lechford himself had written, "I am ... forced to get my living by writing petty things, which scarce finds me bread."⁴ He had been disbarred for "embracery," pleading to a jury out of court, and it was assumed that this combination of circumstances forced him to return to England.⁵ James Savage wrote under his biographical entry for Lechford: "left here, aft. vain attempt to earn bread."⁶ Other nineteenth-century scholars of colonial Massachusetts said much the same thing. William Whitmore, in an introduction to a collection of Massachusetts colonial laws, wrote that Lechford "was finally starved into returning to England."⁷ Emory Washburn related the disbarment incident and then stated that Lechford found his calling "so little profitable that in the following year he returned to England."⁸ This view of Lechford was passed on into the twentieth century. Gerald Gawalt, for instance, wrote that "the court not only disbarred and censured him [Lechford] but ultimately forced him to return to England."⁹	1
In an article published in 1984, Thomas Barnes presented a reevaluation of Lechford in which he challenged this received view.¹⁰ Barnes established that the notion that Lechford could scarce find his bread should be taken with a grain of salt, since a calculation of Lechford's average income based on the entries in his Notebook or ledger of the work he did during his stay shows that his practice was a busy one that would have provided him with a solid and respectable income.¹¹ Barnes pointed out that Lechford did not want for the "best sugar" and smoked expensive Spanish tobacco. Far from being pushed out of the colony due to the embracery incident, Lechford stayed on for almost two more years, with his best year, financially speaking, still to come. Barnes argued that the incident had such little impact on Lechford's practice because Lechford did not actually appear before a court for his clients. He would draft pleadings that clients would read for themselves in court. Moreover, the vast majority of Lechford's work reflected in the over 650 transactions recorded in his Notebook belong to an out-of-court practice.	2
Lechford attended an Inn of Chancery, Clement's Inn, training ground for "the lower branch" of the English legal profession, attorneys, solicitors, and clerks of various kinds. He had been a solicitor in England, the class of professional men who acted as middlemen between the client, the barrister (who argued points of law in court as the need arose), and the various attorneys pursuing the client's claim (who saw to the writs required, kept on top of procedural developments, and drafted the simple pleadings needed to move the case along).¹² However, this divided profession was incompatible with the "grim determination" of Bay Colony magistrates to keep the administration of justice in their own hands, creating a cooperative rather than competitive Westminster-style court system, with parties speaking for themselves and magistrates acting the part of the lawyer if need be.¹³ Hence, Lechford's court practice was most like an English attorney's, with colonists usually acting as "everyman (or woman) his (or her) own lawyer."¹⁴ Lechford's out-of-court practice in Massachusetts Bay colony most resembled what members of the Scriveners' Company of London were authorized to do, namely, draw up straightforward contracts, negotiate loans, and perform simple legal formalities.¹⁵ The Notebook contains much of this kind of work—conveyances such as a sale of land or house, leases, mortgages, wills, powers of attorney, articles of apprenticeship and so on. It also includes work that was not specifically legal—receipts, business letters, and ordinary copying.	3
Given Lechford's disagreements with Congregational organization as it was implemented in Massachusetts Bay, the first editor of Plain Dealing, J. Hammond Trumbull, asked why Lechford had not simply been banished like Anne Hutchinson and other religious dissenters of the period. Barnes pointed out that it was probably Lechford's usefulness as a lawyer that led colony authorities to tolerate his unorthodox religious views.¹⁶ However, another kind of usefulness, which went beyond carrying out specific legal tasks, has gone unappreciated in our historical understanding of Lechford, who he was, and what he represented.	4
This article explores instances in which Lechford's role as an informal colony scribe provided him with opportunities to intervene in some of the most contentious issues in Massachusetts Bay politics. What forms of "writtenness" would be required of colony law? What was the requisite degree and kind of "Englishness" that would need to be embodied in the Bay Colony's legal, political, and religious institutional arrangements? Lechford's position on these issues has gone largely unexamined, due in part to the subtlety of his interventions—an editorial suggestion here, a seemingly innocuous petition there, which in both cases explored here grew out of copying work Lechford did for the colony.	5
The first is a petition Lechford submitted demanding that better court records be kept. He was employed to copy records of one of the colony's courts, the Court of Assistants, and would therefore have been well-placed to notice their inadequacy. He argued that scanty court records resulted in arbitrary and unfair rule, since magistrates exercising their discretion in a case-by-case way would not be bound by prior cases, a practice inconsistent with the precedent-centered style of legal reasoning in English common law legal culture. His demand met with approval and a law was passed setting out that better records would be kept. The second example relates to the issue of how power was held in the community. Lechford was doing copying work on the colony's proposed codes of laws, one of the responses to colonists' demands for more "written" and certain law, when he proposed a change in the colony's strict rule on church formation. Since church membership was a requirement for freeman status, a prerequisite for voting and participating in the political life of the colony, this was an issue of the utmost importance. Again, his proposal was accepted and made into colony law.	6
In both cases, we see Lechford exploiting his status as useful "insider"—colony copyist—to occupy the role of dissenting "outsider," a move that in both cases was successful in terms of the formal law his proposals elicited. However, in neither case were these laws actually implemented. We will see that the rule on church formation was in fact used as a public relations device, to create a misleading impression of the degree of religious freedom in the colony, in an attempt by New England Congregationalists to reassure Presbyterians in power in England that their forms of church worship were less strict than they in fact were. Given this, our understanding of Lechford's usefulness must extend to a higher order.	7
"Higher-order usefulness" refers to the role Lechford played in colony rule, its "grand" governance and famous political struggles, as opposed to what must have also been a useful position, that is, his day-to-day lawyering for New England colonists. The phrase is meant to allude to the way in which even the successful protests Lechford made had a way of being absorbed by what historians of colonial America have identified as the magistrate-dominated and peculiarly Puritan approach to law in early New England.	8
"Puritan jurisprudence," as historians have called it, was much less technical and rigid than what English common law at Westminster required, with its divided profession and competitive courts, along with its inordinate emphasis on procedure, formal written pleadings, and squarely binding precedents.¹⁷ Civil-law influenced ecclesiastical courts in England, or justice as it was meted out by justices of the peace or in borough and manorial courts, came closer to the case-by-case equity-oriented Puritan approach.¹⁸ However, English common law legal culture was significantly at odds with this style. In New England, the near-inquisitorial powers of colony magistrates, who were determined to control all aspects of the administration of justice, created what has been seen as a more ad hoc, less rule-bound, and more individualized approach.	9
Lechford is situated in an interesting way with respect to the issue of whether Puritan jurisprudence was arbitrary or equitable, since he was essentially at odds with its built-in discretionary authority. He joined other excluded members of the community in denouncing the case-by-case approach as arbitrary, agreeing with those like the famous Child petitioners who saw in the discretion of Massachusetts Bay magistrate-rule a violation of their rights as Englishmen. Lechford was primarily oriented toward the common law, which emphasized the values of certainty, stability, and predictability that were said to arise from law's "writtenness," i.e., the function that binding case law could play. While this "rule of law" sentiment occasionally gained the upper hand in colony politics, most dramatically in the codifications of colony laws in Massachusetts Bay, Lechford's reform activities show us new ways in which that supposed triumph was more apparent than real.	10
Lechford was America's first practicing lawyer, and he was present at a foundational moment in America's early legal history. It is, therefore, important for us to see how he and the common law worldview he represented were slyly co-opted by his opponents. Puritan Saints used formally enacted law to create a misleading sense of the extent to which the issues Lechford complained of had been addressed, using the law to make it seem as if they implemented the reforms he proposed while effectively preserving the operation of a Puritan jurisprudence.	11

I. Thomas Lechford—"Outsider" and "Insider"
In his introduction to a modern reprint of Plain Dealing, Darrett Rutman explained that when Lechford first arrived in Massachusetts Bay, he was probably at least as much of a Puritan as William Prynne, whose sensational prosecution was the cause célèbre in the years of tension between king and Parliament leading up to the English civil wars. Like Prynne, Rutman explained, Lechford was anti-Episcopal (i.e., against the Church of England) but was probably not committed to either Presbyterian or Congregational tenets.¹⁹	12
Lechford's religious troublemaking had begun prior to reaching the colony, on shipboard, where he apparently had animated conversations with a future minister in the colony, one Mr. Edmond Brown, on "the point of prophesying in the Churches," and the two had, according to Lechford, agreed to exchange written views on the matter. Brown seems to have refused to continue their discussion after landing. Reproaching Brown for his neglect in a letter to him, Lechford wrote that he attached "a coppy of the proposicons," probably the text he named "Of Prophesie," in performance of their agreement "to set downe our opinions."²⁰	13
Lechford presented copies of "Of Prophesie" to other prominent officials, including the Deputy Governor, Thomas Dudley.²¹ When Dudley wrote to Governor Winthrop about the work, he described it as "erroneous and dangerous, if not hereticall," saying that it should sooner be put to the torch than put to the press, and he made comparisons between Lechford and Anne Hutchinson, whose heresy had sent the colony into a tailspin just a few years earlier. Dudley wrote, "[i]t is easyer stopping a breach when it begins, then afterwards. wee sawe our error in suffering Mrs. Huchinson too long." Chiding Winthrop for saying nothing about "Mr. Lechford and his booke," Dudley wrote in a second letter—"this is the way Sathan invades us by (viz. new opynions and heresyes) it behooves us to be the more vigilant and to stir upp our zeale and stopp breaches at the beginning, least forbearance hurt us as it did before."²²	14
No copy of "Of Prophesie" survives for our examination, but based on what others wrote about it, it expressed Lechford's insistence on what he called elsewhere the "apostolical" role of a church, namely, the dissemination of religion.²³ Lechford's view was that the churches in New England should try to "gather in" as many members of the community as possible. He made the argument again and again that the colony needed to devote more energy to converting the Native Indians and that white settler membership in the colony's churches should not be confined to the select few "visible saints."²⁴	15
Church services were open to all colonists in the Massachusetts Bay Colony, but only those who had undergone an examination of conscience, in most cases a reporting of their conversion experience to the satisfaction of other members of that church, were granted full church membership: access to the sacraments of baptism and communion, along with the ability to vote in church matters. Since each church was "independent" in a Congregational structure, the examination procedure might differ from church to church. However, the overall aim was to take steps to make the "visible" church match the "invisible" one, namely, those members of "the elect" whom God had chosen to save. Some kind of screening would help achieve this approximation. The commitment to a profession of faith requirement separated Congregationalists, or "Independents" as they were known in England, from the Church of England, which administered sacraments to any who wanted them. Presbyterians, Puritans who also broke with the Church of England, did not agree with the use of a screening mechanism.	16
When Lechford first came to the colony, he seems to have taken too seriously the idea that each church was independent, as if each church could decide for itself not just what kind of screening mechanism it would use but whether it would use one at all. In Dudley's correspondence to Winthrop, he wrote that Lechford "favoureth Mr. Lentall."²⁵ Robert Lenthal was called by the people of Weymouth to be their minister in their attempt to organize a church in which "all baptized ones might communicate in without any further trial of them"—a church where, in other words, a profession of faith requirement would not be required. Lenthal seems to have been easily dealt with by colony authorities—he "did openly and freely retract" when brought to the General Court.²⁶ However, strains of rebelliousness persisted in the Bay Colony, among Presbyterians as well as adherents of the Church of England. For instance, Robert Child and six other colonists, who drafted a list of complaints against the colony in the famous "Child Affair" of 1646, were "a very motley crew" of Presbyterians and others.²⁷ We will see that Lechford shared many of their concerns about the "Englishness" of colony law and what they viewed as unfair and arbitrary treatment in Puritan jurisprudence.	17
Probably the most important issue for Puritans in New England in the seventeenth century was the dilemma brought on by strict church membership. In the face of dwindling numbers of full church members, some thought an exception to the strict examination of conscience should be made for the children of "visible saints." The solution that was ultimately adopted, what came to be known as "the Half-Way Covenant," gave partial membership to these children—baptism but no communion or church voting privileges.²⁸ In Lechford's day, the point of crisis and compromise was still to come. However, he was already frustrated with what Edmund Morgan has referred to as a "tribalism" among New England Puritans that tended to confine "love thy neighbor" to "love thy family."²⁹ It was Lechford's impatience with just this same strictness of church membership that drove him back to the Church of England with the vehemence demonstrated in Plain Dealing. He had come to see an "accept all" approach as best and to view "the authority of the bishops" and Episcopal Church hierarchy as an effective way to provide the level of superintendent organization and authority needed to achieve what he considered an adequate level of apostolical or evangelical activity.	18
The free voicing of his views to the likes of Dudley when he first arrived in the colony resulted in Lechford being denied church membership. This not only meant that he was unable to vote in colony affairs (e.g., for deputies sent from the towns to the colony's legislature, the General Court), he was also ineligible for any official colony post. One of Lechford's petitions included the request to create the position of public notary to act as a kind of court clerk—writing up the plaintiff's action and the defendant's answer for a set fee and then creating a record of all the proceedings and their outcome, as well as making the affidavits, oaths, and other writings associated with a court action. Just after his record of this petition, Lechford noted: "[t]he Court was willing to bestow employment upon me, but they said to me that they could not doe it for feare of offending the Churches, because of my opinions. Whereupon I thought good to propose unto them as followeth. ..."³⁰	19
What followed was "Certaine proposicons," addressed to the General Court, asking that the elders, ministers who were often asked to give their opinion on vexatious issues that arose in the colony, provide him with an explanation "in writing or otherwise" of why they disagreed with his religious views. He even promised to retract his views and burn his writings if convinced of his error. He also offered to remain silent for a minimum twelve-month period, provided he would be given employment and "admitted to the privileges of God's house." He wrote that he should not be "refuse[d] Church Communion" for his belief in the need for "Apostles, Evangelists & Prophets."³¹	20
One prominent minister, John Cotton, wrote that Lechford was "seriously dealt withall both in conference, and (according to his desire) in writing."³² We know that neither side was convinced and that Lechford's requests for church membership and official colony employment were refused. Steven Winthrop, one of John Winthrop's sons and presumably untainted by unorthodoxy, was chosen as colony recorder.³³ However, Lechford occupied the role of notary public "unofficially."³⁴ For instance, the Notebook included an indenture of the transfer of four square miles of land to the colony "so as they may plant the same wth an English Colony." Lechford's name appeared as a witness to the indenture beneath Steven Winthrop's in the colony's records.³⁵	21
Indeed, the Notebook records much work that Lechford did for the colony. There was a certification by Governor Winthrop that a ship with its goods and passengers had arrived safely, a sale of land for a new plantation (in Winthrop's presence), a letter from Governor Winthrop to the governor of Plymouth, William Bradford, to request that "full & speedy iustice to be done" in two cases where Lechford drafted the complaint of each plaintiff, and a host of certifications under the common seal of the colony, the equivalent of notarized documents, such as an oath, a statement that X owns no property, or that Y is of "full life and health." Lechford prepared "[f]or the Country": The writing of the receipt of the Inhabitants of Dover Kittery & Oyster river into the Proteccon of this Jurisdiccon. [1s. 6d.] The Commission to Mr. Bradstreate for those places. [1s.] The Institution & limittation of the Councell of this Jurisdiccon. [2.] Another of the same. [2.] Charta libertatis. [2.- 6.] The Act of the publique & private tenure of land. [1.] The division of the Plantation into shires. [1.] In addition to preparing copies of proposed laws for the colony, Lechford recorded an oath of allegiance to King Charles and made copies of "the freemens oath."³⁶	22
It might not be surprising that John Winthrop provided Lechford with work for the colony despite the fact that the erstwhile solicitor could not officially occupy a public office. Morgan has presented Winthrop as an eminently practical man, one who always chose workable solutions and compromise over extremism, righteousness, and separatism, and one might imagine that he had less trouble accepting Lechford's services than his touchy deputy-governor, Thomas Dudley, who, as we have seen, thought that Lechford may have been the devil himself.³⁷ However, when Dudley became governor in May 1640, he asked Lechford to do much the same kind of work that had been previously assigned to him by Winthrop. Lechford prepared for Dudley certificates under common seal of the colony for commercial agreements, his declarations of "full life and health," and papers relating to wills and the execution of estates in which Dudley was involved.³⁸	23
Richard Bellingham's rise from deputy-governor to governor in June 1641 seemed to signal an increase in the importance of the kind of colony work Lechford could have done had he stayed in the colony. For example, Bellingham asked him to draw up a commission to "call and keepe a Court," as well as what looks like an important commission relating to Indian trade.³⁹ Bellingham had been the recorder of Boston in Lincolnshire and perhaps because of this shared interest in recording the two appeared to have maintained "very friendly intercourse" during Lechford's stay: Bellingham gave some money to Lechford in 1639 that Lechford was free to treat as a loan or a gift, and Lechford did not charge Bellingham for at least one piece of work he did for him.⁴⁰	24
The use of Lechford's legal services by "high" colony officials was not hampered by antagonisms that otherwise smoldered. His professional services were useful and even an enemy like Dudley saw the point of this. Yet Lechford's services were offered to the governed as well as the governors: a typical Notebook entry is far more likely to record a transaction or task performed for an ordinary colonist than an elite official. While Lechford's notarial/transactional practice was extremely varied, one rich yet relatively small corner were the petitions he prepared.⁴¹ An examination of them reveals what much of Lechford's everyday practice for non-elite members of the community was like. The petition was also Lechford's preferred mechanism for making his own requests of colony officials and is, therefore, important to an understanding of his brand of troublemaking.	25
Most of the petitions Lechford prepared for his clients were directed to the General Court, a "court" in the English sense of the "High Court of Parliament"—a body that legislated and adjudicated.⁴² It functioned as the colony's legislature, made up of elected members, the deputies, elected by the freemen, and the assistants (the magistrates, the governor, and the deputy governor), elected by the deputies. It also exercised adjudicative power in its routine handling of individual cases on their particular facts and circumstances, operating as what we would recognize as a court of law.⁴³	26
Barbara Black called the use of the petition in the General Court of Massachusetts Bay "the chief civil power for redress of grievances" and noted that "[t]he bulk of judicature came to the General Court by way of petition." Of this use of petition, "[s]ome is clearly judicial, some clearly addressed to the General Court in its legislative or executive capacity, some not clearly one or the other." A request framed as a favor is closer to a "pure" petition addressed in a legislative mode, whereas a claim made as a matter of right is closer to the adjudicative one. Black suggested thinking about this distinction in terms of whether or not the petitioner needs to say "please."⁴⁴	27
The petitions Lechford prepared for his clients covered this entire range. Consider the requests from occupational groups and inhabitants of a town. Lechford prepared petitions for the colony's blacksmiths asking for price control on a raw material essential to their trade, husbandmen requesting exemption from military training "in seed time hay tyme & harvest," and tanners calling for regulation of leather making in the colony. Some petitions involved services important to town inhabitants such as a ferry. Issues arose over what might be termed "rural planning," such as a request for the Court to declare where to place and how to pay for a common fence to keep separate swine and meadows. The freemen of Cambridge presented a petition asking for the creation of a town line "for the settlement of peece & quiet among us," since disputes had arisen between them and neighboring towns over wood and timber. These are the petitions that are the most "legislative," since they were brought by groups representing specific interests making overt claims about representing some aspect of the collective good of the commonwealth.⁴⁵	28
Lechford also prepared less "legislative" and more "adjudicative" petitions such as requests made to the colony to settle a debt owed to the petitioner by the colony. The Notebook contains examples of claims a client made against the colony for land that had been promised in return for investments in the common stock of the colony (a form of government financing dating from the days when the colony was organized as a joint stock company). Abraham Palmer of Charlestowne requested two hundred acres for money put into the common stock twelve years prior. Sergeant Edward Mellowes of Charlestowne explained that his father was promised five hundred acres for £50 paid into the common stock ten or eleven years previously, only two hundred acres had been received, and he was claiming the balance as his father's heir. Mariner James Brocke claimed £30 in damages for failing to be paid by the colony for £30 of butter cheese and other provisions provided by him for a voyage to Block Island during the Pequot War.⁴⁶ Christine Desan has called such claims against the state "legislative adjudication," since they are made in much the same way that a petition is presented to a legislature, but they are claims of entitlement—"a matter of obligation and judgment."⁴⁷	29
Lechford's petitions also included other kinds of requests by individuals more difficult to characterize. Consider a different subset of petitions for which "please" had certainly to be said: apologies and pleas for reinstatement. These include an innkeeper's apology for selling beer contrary to legal specifications, a carpenter's apology for charging excessive fees, apologies for selling gunpowder to the Indians, an individual's plea for remittance of his "civill censure" and restoration of his "former libertys," a banished man's request for permission to enter the colony, and an apology from a man who "in his passion" drew his knife in Court.⁴⁸ These seem to be adjudicative since they are directed to the magistrates to mitigate sentences given in particular cases: the dispensing of justice in the intense Puritan face-to-face way. However, they are not adjudicative in the sense that they would be granted or refused as a pure matter of discretion, a kind of forgiveness of sin that would certainly not be dispensed if the petitioner presented the request in the tone of a claim or a demand. Here "appeal" means less the formal right to review that we associate with adjudication (e.g., the plaintiff's appeal from a court of first instance to a court of appeal) than a more personal plea (as in, "I appeal to your sense of fair play").⁴⁹	30
Consider also petitions for grants of land and requests for verification of ownership of land or a house, made necessary in at least one case by a dispute that had arisen in regard to this.⁵⁰ These requests strike a modern eye as more bureaucratic or regulatory than either adjudicative or legislative, the kind of request that might be made to an administrative agency delegated to deal with land allocation and its registry. Indeed, the petitions taken as a whole suggest a jurisdiction as general as "colony business," concentrated in the General Court, which operated in all of these capacities.	31
It was probably in part Lechford's status as an "insider" useful to colony officials that put him in a good position to frame requests and other kinds of petitions for his more ordinary clients. He navigated a number of complicated relationships in the colony's legal and political life, often acting as the (unofficial) notary public for the governing elites, one who might occasionally be invited into their houses to draw up a document or make a copy.⁵¹ Lechford could thus be a source of influence for clients who might be altogether excluded from the halls of power. However, Lechford would have also had much in common with those non-elite clients, those whose petitions could only be cast in the most supplicating of tones. Consider the man who pulled his knife in court, Thomas Grey: the same session of the Court of Assistants in which Lechford was censured for pleading with a jury out of court also ordered that Grey be severely whipped and fined for this incident, which also apparently involved drinking and swearing.⁵²	32
Lechford's combined status as "insider" and "outsider" is important to an understanding of the manner in which he challenged elite authority. It is also key to the way in which, in both cases explored below, his challenges were incorporated into colony law. Against the background of power-sharing struggles in the colony, the laws that Lechford elicited through his agitating appear as an official response or reaction to the grievance Lechford complained of. They constitute a recognition of his claim, while at the same time effectively containing it and the more widespread discontent it represented in the colony.	33

II. Challenges to Puritan Jurisprudence

A. Recording Reasons
On June 8, 1638, Lechford presented a petition to the General Court asking for the following five changes in court proceedings: (i) for all actions between parties to be entered in a court record book by the secretary before the court sits; (ii) for every action to be declared in writing with the defendant's answer put in writing by a public notary before the cause is heard; (iii) for the secretary to take down the verdict and record the judicial command or writ; (iv) for the public notary to record all the proceedings in "a faire booke" and to enter "satisfaccons acknowledged and executions or commands done"; and (v) for the cost for all these to be set at fixed rates. The petition argued that, if implemented, its proposals would lead to more orderly and expeditious court proceedings. For example, having the declaration and response before the court sits "will give an easy and quicke dispatch to all causes for thereby the Court and Jury will quickly see the point in hand and accordingly give their verdict & judgmt." Lechford also recommended more widespread use of the public notary "in Divers cases to the ease of the Magistrates and for making severall writings &c."⁵³	34
In his own practice, Lechford drew up all manner of sworn testimonies and drafted pleadings much like those that would have been required of the new official. He seemed to have imagined here a division of labor between himself and the secretary of the Court of Assistants, Increase Nowell. It is telling that his protest against being barred from official employment is presented just three days after the court record-keeping petition, strongly suggesting that he did indeed have himself in mind for the public notary position he recommended be created.⁵⁴	35
The petition's argument from procedural convenience shaded into suggestions that the record-keeping reforms would provide greater stability and fairness in the colony's judgments. Lechford wrote that because "it is not possible that Judges ... should allwayes remember clearely or know to proceed certainly wthout a faithfull record," better records would allow the Court to "better knowe constantly how to judge the same things." Here a record is imagined as necessary to the consistency required by a fair legal system. "[C]ertaine and unchangeable rules," he explained, were required for the due administration of "the Law of God and justice" so that people "may know what is the Law and what right they may looke for at the mouthes of all their Judges." This is an issue that Lechford continued to write about in Plain Dealing. Indeed, he broke with the generally moderate tone of the book on the issue. The colony's courts "have put to death, banished, fined men, cut off mens eares, whipt, imprisoned men, and all these for Ecclesiasticall and Civill offences, and without sufficient record," he wrote, adding that "for want of proceeding duly upon record, the government is cleerely arbitrary, according to the discretions of the Judges and Magistrates for the time being."⁵⁵	36
The entries of the records of the Court of Assistants both before and after Lechford's petition provided some record (primarily, a brief entry of the sanction ordered) but not in Lechford's mind a sufficient one, failing as these entries did to record all of the proceedings, thereby preventing a reader from understanding why, for example, drunkenness attracted a certain punishment in one case and a different one in another, why Robte Coles and Thomas Wincall were fined twenty shillings for being drunk, James White thirty, and Edward Burton forty, or why some convicted of the same offence were put in stocks, others were whipped, another was made to wear "a D: made of redd cloath & sett vpon white" for one year, and yet another forced to wear a white sheet of paper "haveing a greate D made vpon it" in public for one hour.⁵⁶ Lechford would have been intimately familiar with these discrepant punishments, since he had been employed to make copies of the records of the Court of Assistants, which began in 1631.⁵⁷	37
The freemen and their deputies in the Bay Colony had long clamored for a written body of laws to curtail and control the exercise of discretion and what many viewed as the arbitrary treatment often evident in colony justice. John Winthrop and the other magistrates seemed to resign themselves to the fact that a code of laws would have to be drafted in order to satisfy these insistent demands. The General Court was a forum in which assistants (magistrates, the deputy governor, and governor) sat together with the deputies, and so there was some genuine power sharing in the colony. However, the magistrates adopted various strategies of resistance to protect as much as they could of their discretionary power. Heel dragging under guise of committee work was a primary strategy and often mentioned in accounts of this power-sharing struggle.⁵⁸ Another was not publishing in print the body of laws that was finally adopted in 1641, the Body of Liberties.⁵⁹ The freemen and their deputies demanded that all of the laws be printed and that the code of laws set out more detailed punishments.⁶⁰ The Laws and Liberties were ultimately adopted in 1648.⁶¹	38
One can see in the Laws and Liberties the attempt to remove the arbitrariness of which Lechford and others had complained. The code strove for an ambitious level of detail that would presumably provide advance notice of what the punishment for a particular offence would be. For example, the offence of drunkenness now set out the amount of fines depending on a number of factors, including the severity of drunkenness, its duration, the time of day, and the number of prior offences. However, consider the near-absurd level of detail the Laws and Liberties provided. Drinking more than half a pint of wine at any one time resulted in a five shilling fine, as would drinking for over half an hour, or "at unseasonable times" or after nine o'clock at night. If a person appeared visibly drunk in speech and gesture, then the fine was ten shillings, with an additional two shillings six pence added on if the drinking went on over half an hour, and five more shillings if it was during the forbidden hours. A second offence meant the fine would be doubled, third time tripled, and the fourth time meant imprisonment, with limitations on whippings and time in the stocks if the fines at any level could not be paid.⁶²	39
Such minute regulation suggests that it is less the case that discretion was being surrendered than that the lawgivers were trying to foresee every eventuality and codify or fix how, in that very specific situation, they would exercise their discretion if called upon to do so. In that sense, the provision illustrates the tenacity of a Puritan jurisprudence that strove for exactness in substantive justice in a case-by-case way rather than giving itself over to legislatively expressed general principles. However, the code also contains and retains from the Body of Liberties some of these more general provisions, the style of which seems to anticipate later nineteenth-century European-style codifying, albeit rather imperfectly.	40
The detailed nature of regulation in American colonial codes has led some to deny that they can be thought of as codes in the later Romano-Germanic sense. Indeed, the organization of alphabetized topics in the Laws and Liberties makes it virtually unrecognizable in that tradition, since, in addition to the fact that a statute-like level of detail violates the rule that a "true" civil code must confine itself to rules of general application, the Laws and Liberties lacks anything remotely like the persons-rights-actions structure of the Roman civil law.⁶³ The thematic organization of the Body of Liberties brings it closer to that tradition. For instance, Barnes has said that the Body of Liberties was truly a code because it was a "structured, rational, moderate, and compelling articulation of human rights."⁶⁴ However, that declaration-of-rights function also complicates a view of it as a civil code in the later sense.⁶⁵	41
Codification in the nineteenth century was essentially a way to preserve the exercise of discretion. By providing a general framework for legal rules and guidelines for judicial decision making—a skeleton of the legal order—the civil code would be a starting point for elaboration and formulation rather than an end point that simply reproduced fixed judge-made rules.⁶⁶ The Massachusetts Bay Colony codes sprang from quite the opposite impulse. The freemen and their deputies called for a code in order to contain and control magisterial discretion and in that sense to mitigate case-by-case disparity. Yet, the codes did preserve quite a bit of discretion, since not all provisions were like the Laws and Liberties regulation of drunkenness, most notably, the express reservation to rule by "the Word of God."	42
The codes were also overt expressions of Puritan jurisprudence in the sense that they included unmistakably Puritan provisions. For example, both codes included a rule precluding litigants from invoking technical error and promising justice without delay.⁶⁷ The Body of Liberties included a famous provision prohibiting paid lawyering, thereby preserving the inquisitorial role of the magistrate in all court proceedings.⁶⁸ Radical Puritans like Hugh Peter who called for codification in England certainly understood a code as a Puritan measure. It was meant to undermine the knowledge of and monopoly on the obscure knowledge that elite English lawyers were thought to use to play, delay, and otherwise pervert the course of justice. The promise of radicals like the Levellers and Fifth Monarchists who joined with Puritans like Peter in Oliver Cromwell's New Model Army was that this knowledge and the lawyers' monopoly of it would be rendered obsolete by providing a simple, complete, and easy-to-access code. This radical symbolic understanding of a code reemerged as a persistent if largely literary theme in Anglo-American jurisprudence in the nineteenth century.⁶⁹	43
When Lechford was in Massachusetts Bay, the colony was still in the process of deciding whether it would adopt a set of written laws and if so, which one: a collection drawn up by John Cotton, Moses his Judicials, first presented to the General Court in 1636, or the more secular Body of Liberties, drafted by a lawyer-turned-minister, Nathaniel Ward. Lechford was employed to make copies of Cotton's code and to transcribe brief statements of the propositions in Ward's, and both were sent to every town to be debated. Lechford's record of this work in the Notebook does not indicate that he attached much significance to it—the entries are interspersed with notes on his personal accounts for loads of wood, tobacco, a gown for his wife, and malt cheese and irons.⁷⁰ However, given how important the issue of "writtenness" was to Lechford and the control of discretionary and arbitrary rule a code in this context, this informal treatment is misleading.	44
There is ample evidence that codification was viewed in New England as a way to restrain arbitrary rule in the same way that Sir Edward Coke claimed that Magna Carta had restrained the power of the king. Winthrop, for instance, spoke of the deputies' desire for "a body of grounds of laws, in resemblance to a Magna Charta," two copies of "Sir Edward Cooke upon Magna Charta" were among the books ordered by the General Court from England in November 1647, the year before the Laws and Liberties was enacted, and Magna Carta had pride of place in the General Court's response to the Child petitioners, an event explored in more detail below. Liberty 1, reproduced in the preamble to the Laws and Liberties, was essentially a New England iteration of the "rule of law" as expressed in "the great Charter," as it was later interpreted by Coke. The link Coke was famous for making in the 1620s between it and "due process" seemed to deeply influence the Body of Liberties, which has been called "a sort of Bill of Rights" due to the kinds of freedoms and liberties it guaranteed.⁷¹ This kind of "commoning of the common law," reducing it to a written form to communicate that "law made public restrained otherwise unaccountable power," was invaluable in the face of the common law's point of vulnerability: its "unwrittenness."⁷²	45
When Lechford petitioned for more extensive recording of court judgments, he seemed to have in mind the same values touted by proponents of codification—stability, predictability, and "knowability" flowing from written law. A record of a prior case in a precedent-based system could restrain capricious discretion in much the same way as codified law. We know that this was important to Lechford, since he reserved his sternest words for the wide latitude given to the magistrates' discretion, understood in terms of "the Word of God": I feare it is not a little degree of pride and dangerous improvidence to slight all former lawes of the Church or State, cases of experience and precedents, to go hammer out new, according to severall exigencies; upon pretence that the Word of God is sufficient to rule us: It is true, it is sufficient, if well understood. But take heede my brethren, despise not learning, nor the worthy Lawyers of either gown, lest you repent too late.⁷³ Lechford certainly thought of himself as the kind of bearer of "experience and precedents" of the English common law culture that he thought should guide the colonists, rather than ad hoc decision making that sought its justification in the expedient—the "pretence"—of scriptural or divine authority, namely, rule by the "Word of God," preserved in the Magna Carta-modeled provision.⁷⁴	46
Lechford's plea for better court records did not fall on deaf ears. The next session of the General Court ordered: "Whereas many iudgments have bene given in o[u]r Courts, whereof no records are kept of the evidence & reasons wherevpon the verdit & iudgment did passe, the records wherof being duely entered & kept would bee of good vse for president to posterity, & a releife to such as shall have iust cause to have their causes reheard & reveiwed, it is therefore by this Court ordered & decreed that henceforward every iudgment, wth all the evidence, bee recorded in a booke, to bee kept to posterity."⁷⁵ Lechford seemed to get at least part of what he asked for. Written pleadings would not be required and the public notary post would not be created for him; but reasons would be kept to "bee of good vse for president to posterity." However, entries in the records of the Court of Assistants after this date, September 9, 1639, are no different than they were before, consisting essentially of a brief statement of the sanction ordered.	47
Lechford seemed to think that "judgments" were among the things that would be handled by the colony recorder, Steven Winthrop, since he included these in his list of what Winthrop was to record, along with "Mariages, Births, Deaths, Wills and Testaments, Bargaines and Sales, Gifts, Grants, and Mortgages."⁷⁶ The same session of the General Court that called for better court records also ordered "[t]hat there bee records kept of all wills, administrations, & inventories, as also of the dayes of every marriage, birth, & death of every pson wthin this iurisdiction" and that "all mens houses & lands" be certified by each town. "Mr Steven Winthrope was chosen to record things" but which things were not stipulated.⁷⁷ Lechford would have known that nothing more was being done with the records of the Court of Assistants, since his copy of them ran to January 28, 1641. Indeed, he wrote in Plain Dealing, "[s]eldome is there any matter of record, saving the verdict many times at randome taken and entred, which is also called the judgment."⁷⁸	48
What happened to the idea that it was important to keep a record of "the evidence & reasons wherevpon the verdit & iudgment did passe" or, as it was put again seven years later in the Laws and Liberties, that "everie Judgement ... with all the substantial reasons shall be recorded in a book, to be kept to posteritie"?⁷⁹ Such pronouncements can be viewed as evidence of the Puritans' well-known deep commitment to reason giving, and the law that Lechford's petition elicited can be viewed as a recognition of the validity of the point he made, that substantive court records would allow future judges to discern who was treated how and why from case to case. However, they might also be seen as instances of the equally well-known tendency of New England Puritans to dissimulate and misrepresent their behavior to an English audience worried about the extent to which English settlers were being guaranteed English liberties, including consistent treatment under the law from case to case.	49
Presumably a detailed record of a case meant to operate as binding in a precedent-based system would fly in the face of the exercise of equitable discretion at the heart of a Puritan jurisprudence, struggling to stake out its claim against those who were, like Lechford, complaining that it took too much liberty. Magistrates in Massachusetts Bay would have been reluctant to follow the precedent-centered style of legal argument that had emerged by this time in England. There the culture of precedent had shifted from one defined by the general consensus shared by elite lawyers and judges (the "collective eminences" who served as "a repository of collective legal tradition" around 1500) to a text-based knowledge of books and the citation of specific cases (allowing John Seldon, for instance, to say in 1639, "[t]he law speaks by record").⁸⁰	50
Bay Colonists were clearly proud of their ability to effect reform of the common law that Puritans in England could not. The Epistle to the Laws and Liberties declared: "if it be no disparagement to the wisedome of that High Court of Parliament in England that in four hundred years they could not so compile their lawes ... there can be no just cause to blame a poor Colonie (being unfurnished of Lawyers and Statesmen) that in eighteen years hath produced no more ... then this Book." So, for instance, the use of technical error to create delay and multiply expenses, much complained of in England in connection to venues like the Court of Chancery and more generally to the labyrinthine nature of the English court system, was denied Massachusetts Bay litigants. Where "ancient institutions and vested professional interests" would block such reform in England, those traditions and forces had not yet taken root in New England, or they were not as yet in the ascendancy.⁸¹	51
Perhaps the best example of Lechford's alignment with common law legal culture is the "gem" Barnes cited to argue that Lechford's pleading rose to the level of "the ablest barrister." This was a demurer Lechford drew for his client claiming that the suit should be dismissed because the plaintiff's declaration had not been made in writing. We saw above that Lechford's request to make written declarations a requirement was not accepted in the record-keeping session of the General Court. Barnes noted that Lechford crossed it out in his Notebook, having presumably accepted the fact that without such a law the argument would simply not work.⁸² This was just the kind of "technical error" that the Body of Liberties later made expressly unavailable and just the sort of tactics that were associated with English lawyers and their disregard for general justice and equity of a case.	52
A writing requirement for statements of claim and defendant responses would obviously generate a lot of business for someone like Lechford. So, too, his advocacy for better records, which included the plea for his own official employment, makes suspect his support of "writtenness" and his argument that it imported an essential fairness to the administration of justice. However, these arguments were not all self-interest. Lechford was tapping into existing views of the day as to what justice did and did not require. "Writtenness," whether it be in the form of a code or recorded and binding precedents, was seen as an important limit on the discretion at the heart of a Puritan jurisprudence. At the same time, these written forms could, and certainly did in the case of the Massachusetts Bay codes, embody important Puritan goals.	53
It was at Lechford's instigation that the colony adopted the law requiring better court records and that commitment was reiterated in the Laws and Liberties. Although Charles Warren suggested that Lechford's petition was responsible for record-keeping at the Court of Assistants, we know that this cannot be correct, since those records began in 1631, well before Lechford arrived in the colony.⁸³ However, actual colony practice did not change from what it had been when Lechford first made the complaint in 1638.	54
While it is possible that the reform was meant to be aspirational, repeated enactment over a near ten-year period without any change in practice creates the impression that the commitment was actually never meant to go beyond the words on the pages of these early codes. To the extent that this ever convinced anyone that the mechanisms of justice practiced in the Bay Colony did not deviate from English standards, one might say that Lechford's proposed reform was used to give a false impression of the actual state of affairs. This is a manifestation of Lechford's "higher-order usefulness," namely, the adoption of a reform at his behest designed to quell the complaint he made and the dissent it represented.	55
This is a pattern that repeats itself in an even more highly charged political context in the next law reform proposal explored below. Here the issue is not just the degree and kind of "Englishness" required by colony law—how much common law and how much Puritan jurisprudence. The question we examine next is the extent to which Massachusetts Bay Colony religious institutions would be required to mirror England's reformed churches in order to guard against the fear of a loss of "Englishness" in law, politics, and religion to the "heathen wilderness," a topic on which Lechford had definite loudly expressed opinions.	56

B. Church Membership
While Lechford was making copies of Cotton's code and brief statements of the law in Ward's Body of Liberties, he drafted a document he titled "A Paper touching the Church her liberties" in which he supported a move to relax what had until that time been a strict rule on the formation of new churches in the colony. Since the copies and "breviats" were being made so that "any man may acquaint you ... with what he conceives fit to be altered or added," Lechford wrote, "I conceive it my duty to give you timely notice of some things of great moment, about the same Lawes, in discharge of my conscience."⁸⁴	57
We recall here two key features of Congregationalism and consider a potential tension created by them. On the one hand, there was the overall commitment to make an approximation between members of the "visible" church and the "invisible" church by restricting church membership and its attendant political entitlements for the select few, the "visible saints," who had given convincing evidence of their salvation. On the other hand, Congregationalist organization viewed each church as "self-sufficient, ... an integral unit, independent of all external compulsion, and competent to manage its own affairs,"⁸⁵ which meant that each church was, for instance, able to adopt a more or less intense examination of the potential church member's conversion experience. If churches adopted less stringent examinations for membership, this could be disastrous for the approximation project. The stakes were very high for both the included and the excluded, since only church members could receive the sacraments and be freemen.	58
However, the danger of an individual church using examinations for membership that were not stringent enough could be avoided by carefully controlling who would be allowed to form a church. Hence, the law in the colony since 1636 had required "companyes of men ... ioyne[d] in any pretended way of church fellowshipp" to declare their intentions to the magistrates and elders of the other churches and obtain their consent in order to proceed to "gather" a church. It further stipulated that "noe pson, being a member of any churche which shall hereafter be gathered without the approbacon of the magistrates, & the greater pte of the said churches, shalbe admitted to the ffreedome of this comonwealthe."⁸⁶ This meant that candidates rejected by the existing churches could not form their own churches and, most important, they would not be able to gain freeman status through that indirect route.	59
It seems that the liberty for church formation proposed for the Body of Liberties, one that Lechford was working with in the process of making his brief statements or breviats, retained some of the strict sentiment animating the 1636 rule. In "A Paper touching the Church her liberties," Lechford requested that the words "nor will this Court allow of any Church otherwise gathered" be omitted from the proposal setting out that "Orthodoxe Christians, allowed to plant together in this Jurisdiction," be permitted to "gather themselves into a Church ... [un]hindered by any Civill power" after giving notice to neighboring churches.⁸⁷ Lechford's concern was that groups of Indian converts, who would fail to meet the qualification of being "Orthodox Christians" under the proposed rule, be allowed to gather in churches. However, Lechford also thought that it was wrong to withhold baptism and communion from such large portions of the white settler population, "three parts of [whom]," by his calculation, "remaine out of the Church," and he would also have supported a relaxed church formation requirement on those grounds.⁸⁸	60
Colony authorities seemed to have listened to Lechford's plea, since Liberty 95§1 of the Body of Liberties did not include the phrase he objected to, or much else in the way of restrictive content. It ultimately read: "All the people of god within this Jurisdiction who are not in a church way, and be orthodox in Judgement, and not scandalous in life, shall have full libertie to gather themselves into a Church Estaite. Provided they doe it in a Christian way, with due observation of the rules of Christ revealed in his word."⁸⁹ Control could still be exercised through decisions of who were and were not "orthodox," who were viewed as "scandalous in life," and what "gathering in a Christian way" meant. However, in principle, excluded "good Christians" would be free to make their own churches, without the need for approval by the magistrates and church elders, leaving it open to the settler community's judgment who this would include and exclude. This was quite a concession in light of the approximation project, and a potentially immense concession in terms of political power sharing if membership in these freely formed churches would give their members freeman status.	61
The motive for making the move probably came from an important realpolitik consideration, that is, the fact that Presbyterians gained control of the "Long" English Parliament in 1640. Massachusetts Bay shared in the celebration of this event to the extent that it was a triumph over Episcopy. However, Presbyterians disapproved of strict church membership and the Congregationalist use of a profession of faith requirement. Presbyterians and Anglicans had been shocked to hear of its use, since there were no other churches in Massachusetts Bay for excluded people to turn to if they were denied church membership.⁹⁰ The adoption of Liberty 95§1 in 1641 was probably an attempt to protect against interference from a Presbyterian Parliament and to attest to a commitment to greater flexibility with respect to church membership than had been and probably still was the case.	62
By 1648, when Massachusetts Bay adopted the Laws and Liberties, the political climate in England had changed and colonial authorities no longer needed to present their criteria for church membership as being in harmony with those of Anglican or Presbyterian England. That year, the New Model Army purged Presbyterian Puritans from Parliament to create the "Rump" Parliament, controlled by the "Independency," namely, the Congregationalists and other sects who sought an alliance to defeat the Presbyterians.⁹¹ New England Congregationalists could safely return to their stricter form of church creation and attendant church membership, which they promptly did. The language of Liberty 95§1 was carried over into the Laws and Liberties. However, it now came with a proviso that altogether undid the 1641 relaxation Lechford called for. The following was added to §1: "Provided also that the General Court doth not, nor will heerafter approve of any such companyes of men as shall joyne in any pretended way of Church fellowship unles they shall acquaint the Magistrates and the Elders of the neighbour Churches where they intend to joyn, & have their approbation therein." And §2 continued "no person being a member of any Church which shal be gathered without the approbation of the Magistrates and the said Churches shal be admitted to the Freedom of this Common-wealth."⁹² Just as in 1636, approval from the magistrates and elders was required and freeman status would be denied to any member from a church not so approved.	63
There are other indications that the Lechford-influenced Liberty 95§1 had been motivated by transatlantic appeasement that did not result in an on-the-ground relaxation of the rule regarding church formation. The Child petitioners' complaints included the demand that the colony "give liberty to the members of the church of England, not scandalous in their lives and conversations ... to be taken into your congregation ... or otherwise to grant liberty to settle themselves here in a church way, according to the best reformations of England and Scotland." If this request was not complied with, the petitioners threatened to apply their "humble desires to the honourable houses of parliament," which they hoped would "provide able ministers for us ... or else ... transport us to some other place where we may live like christians."⁹³ The petitioners had apparently not been allowed to form their own churches in the way that Liberty 95§1 seemed to allow.	64
From the earliest days of the settlement, colony authorities had been very aware of the need to keep what Perry Miller called "an obsequious eye" on English government, and to that end they learned to phrase their pronouncements for public consumption carefully and, indeed, at times, casuistically.⁹⁴ Liberty ⁹⁵§1, and perhaps even the entire Body of Liberties, can be understood as an exercise in this kind of externally oriented politics. When colonial authorities responded domestically to the Child petitioners, or, at least, as that exchange was recorded in Winthrop's Journal, the Body of Liberties was nearly invisible. For instance, when the petitioners claimed that "a bodye of Englishe ... Lawes hath not been heere established," the authorities did not deny this by pointing to the Body of Liberties. Instead, they referred to "the Constant care, & paynes the Court hathe taken for establishinge a bodye of Lawes." Similarly, when the petitioners made what was probably a disparaging reference to the Body of Liberties—"we [do not] so understand and perceyve our owne lawes or libertyes, or any body of lawes here so established, as that thereby there may be a sure and comfortable enjoyment of our lives, libertyes, and estates, according to our due and naturall rights, as freeborne subjects of the English nation"—the authorities did not claim that the Body of Liberties could provide them with all the assurance they might need.95	65
The low domestic profile of the Body of Liberties stands in significant contrast to the role it played in the document produced for external consumption, what has come to be known as "the Declaration."⁹⁶ Although the English civil wars meant that England was unlikely to have actually interfered with Massachusetts Bay, colony authorities would have nevertheless perceived the Child petition as a grave threat to the carefully constructed religious and political power-sharing mechanisms and their ways of regulating inclusion and exclusion in colony decision making. Harsh fines and imprisonment were an effective way to prevent the petitioners from crossing the ocean to press their suit. However, copies of the petition were floating around the transatlantic world, creating bad press for the colony. The lack of tolerance Massachusetts Bay showed dissenting sects was becoming more and more of an issue with their Congregationalist brethren in England who felt that New England strictness hurt them in their attempts to create the anti-Presbyterian coalition they needed. Winthrop and the others knew that some kind of "damage control" was required. This was the Declaration, and it relied very heavily on the Body of Liberties, referring to it twenty-seven times.⁹⁷	66
The very structure of the Declaration was an attempt to address the petitioners' claim to be unable to "discerne a setled forme of government according to the lawes of England."⁹⁸ Massachusetts law and English law were lined up side by side for easy comparison in what the drafters called "a parallel." This presentation—one of the "Fundamentalls of the Massachusetts" placed opposite a principle from Magna Carta or English common law—was a way to provide assurance that the colonists did indeed benefit from the equivalent of British justice. Placing Liberty 95§1 at the top of the list and labeling it "Liberty 1" was no "clerical error," as a nineteenth-century scholar of the document, William Whitmore, saw it.⁹⁹ It was positioned there because it was so important to refute the petitioners' claim that Englishmen in the colony could not "live like Christians." Any who were "orthodoxe in judgment and not scandalous in life" could gather into a church estate.	67
It has sometimes been said that the colonists deliberately refrained from calling the Body of Liberties "laws" for fear that law making would be perceived as a violation of the colony's Charter.¹⁰⁰ However, the Declaration was not shy about parading elements of the Body of Liberties as law. Indeed, its ability to make assurances as to the quality of colony justice depended on the credibility of the claim that the propositions supported by the Body of Liberties had the force of law. If the slippery distinction between "laws" and "liberties" was somewhat disingenuously made to communicate to the outside world that the Body of Liberties had the force of law when it really did not, it would be difficult to avoid concluding that the document itself, not just the Declaration, was disingeuous.¹⁰¹ If this is correct, we see a striking similarity between the document and Lechford's higher-order usefulness. In just the same way that Lechford's reform proposals were adopted in order to misrepresent the similarity between Puritan practice in Massachusetts Bay and certain English trends, the Body of Liberties, one of the earliest expressions of the rule of law in America, was not only produced primarily for English consumption, it was used to mislead in much the same way.	68
Both Lechford and the Child petitioners linked the exclusion of white settlers from church membership to the situation of the Native Indians, whose situation Lechford had in mind in "A Paper touching the Church her liberties." The Child petitioners wrote, "we suppose ourselves in a worse case here and lesse free than the natives amongst whom we live." Lechford warned in the preface to Plain Dealing that "when the major part are unbaptized, as in twenty years undoubtedly they will be ... either they may goe among their fellow-heathens the Indians, or rise up against the Church."¹⁰² In both cases, the strategy of linking these two excluded groups was meant to communicate that white settlers were being made equivalent to the Indians, something that would have been shocking to seventeenth-century Europeans, who saw themselves as the fit and proper superiors of the Indians. The inappropriateness of such an equivalency was communicated through the use of one word uttered in an easy stinging breath: "heathen."	69
Lechford asked in Plain Dealing whether by limiting membership to the select few, "these good men of New-England, are not forced to be too strict in receiving the brethren, and to run a course tending to heathenisme?" With such restrictive church entry requirements, he argued, "the people begin to complain, they are ruled like slaves, and in short time shall have their children for the most part remain unbaptized: and so have little more priviledge then Heathens."¹⁰³ The petitioners' charge that the colony did not allow Englishmen to settle in a church way was potentially devastating, given the deep-seated fear on both sides of the Atlantic that the colonists would lose their "Englishness," their Protestant "civilization," and be consumed by the wilderness, understood in terms of "savagery" or Catholic "popery."¹⁰⁴ The petitioners' claims about the "loss" of English law would have been designed to play upon the same anxieties. In this transatlantic culture, probably no more damning charge could have been made against the colonial government than that it reduced Christian Englishmen to the status of "heathens." The petitioners knew it and colonial authorities knew it too.	70
Lechford's charge of negligence vis-à-vis Native conversions would also have been damaging, since missionary work had always been a way to incite interest (and investment) in Massachusetts Bay. However, the first official conversion attempts were not made until 1644, fourteen years after the founding, and three years after Lechford's departure.¹⁰⁵ Scholars have explained this initial reluctance in terms of the inward-looking nature of Puritanism.¹⁰⁶ Even in 1648, when he wrote a response to Lechford's charge, a time when aggressive converting was well underway, John Cotton expressed the sentiment that the primary concern was and ought to be for "our flock"—church members and their children who stand in need of converting grace.¹⁰⁷ This was the "striving for purity" of Puritanism, which simply left outside the Church "the mixed multitude of wicked Englishmen and heathen natives" in order to concentrate on those who had demonstrated that they were saved.¹⁰⁸	71
There seemed to be a sense in the early days of the colony that the overwhelming attractiveness of Christianity would convert the Indians, making overt measures unnecessary. Compared to what the Jesuits were doing to obtain high numbers of conversions to Catholicism, inserting themselves into Native communities, learning the local language and so on, the Protestant approach of passive seduction must have seemed woefully inadequate.¹⁰⁹ Lechford wrote again and again of the need to take more active steps, arguing, for example that "the way to instruct the Indians, must be in their owne language, not English." Given the importance of prayer, he asked, "must not some Ministers learne their language?"¹¹⁰	72
An order of the General Court in 1646 outlining new and more aggressive measures seemed to recognize the "neglect" that Lechford complained of. That year John Eliot began preaching to the Indians. By 1652, he had produced a short catechism in Massachusett, an Algonquian language spoken by Indians in Eastern New England, and in 1663 he published a translation of the Bible, Up-Biblum God. The Protestant "praying towns," of which his Natick was the first and best example, were attempts to bring the Indians to "civilization" in an English town environment.¹¹¹ Yet in 1642, when Lechford wrote, he was making an important point: not only might Englishmen "go heathen" if left to live outside any church; no concrete and effective plans had yet been adopted to ensure that "the heathens" would be made into Englishmen.	73
Lechford was presenting two-fold evidence of the failure of the Reformation in New England. Not only had Congregationalism there not organized the members of the white settler population in a way that allowed them to "live like Christians," something that was putting their very "Englishness" at risk, it was also failing to colonize the native population with the speed and effectiveness that had been promised and hoped for at home. Little wonder that Cotton responded with the vehemence he did, stating that Plain Dealing was "unfitly" named, since many passages in it "might rather be called false and fraudulent."¹¹² Yet Cotton's fervor highlights points of weakness in the Colony's project for implementing the Reformation. They would have both been on Lechford's mind when he proposed deleting the words "nor will this Court allow of any Church otherwise gathered" in "A Paper touching the Church her liberties."	74
Lechford's intervention on this rule regarding church formation grew out of the commission and process of copying proposed codes for the colony. His request was not even to add words that were his own but merely to delete some—a posture in keeping with his servile clerical role. From that quiet beginning, the provision was launched and transformed on the seas of transatlantic politics. The drafters of the Declaration were so keen to refute the "false Report & fowle Slander" that "godly, sober, peaceable, &c: men, cannot liue heer like christians"¹¹³ that they mislabeled Liberty 95§1 and placed it first in their list of the "Fundamentalls of the Massachusetts." The process that played itself out in the case of the court record-keeping petition was here repeated: Lechford spoke out in his own way on a legitimate grievance shared by other members of his community (here, the inappropriateness of a strict rule on church formation), followed by the adoption of a legal provision purporting to address that grievance, a provision that was then promptly ignored.	75
Lechford probably died in 1644 or 1645, so he would not have known about the position taken in the Declaration or the reversion made in the Laws and Liberties.¹¹⁴ He may not even have known how the law was ultimately formulated in Liberty 95§1.¹¹⁵ We may imagine, however, that he would have been appalled by the colony's attempts to appear to be more open about church membership than it in fact was, since his own exclusion from church membership caused him great trouble and pain during the time he was in the colony. Three years was a long time for someone as religious as he was to have lived without "the Sacrament of the Lords Supper," for a trained solicitor to be "kept from all place of employment or preferment," and for someone with such an instinct for civic involvement to be consigned to making copies of the freeman's oath but unable to take it.¹¹⁶	76

III. Copying in Context
Both law reform initiatives explored above were linked to work Lechford was commissioned to do for the colony—copying Records of the Court of Assistants and making copies of the colony's codes. This is important because while we might think of scrivener's copying as a lowly and even slavish activity, there was nothing inherently unworthy about copying at this point in history. Some of the most respected men of the day devoted themselves to projects that involved a tremendous amount of copying, partly but not only due to the limited availability of print. However, previous scholarship has tended to overlook and undervalue this aspect of Lechford's legal practice, with its subtle connections to broader historical trends and Lechford's own law reform endeavors.	77
To comprehend the importance of copying to the higher ranks of the legal profession, one might note that the eminent Sir Edward Coke "personally copied the title deeds and particulars of nearly a hundred properties acquired in the course of his long, eventful and immensely lucrative career into a 'Great Book of Conveyances' which runs to just under one thousand large folio pages."¹¹⁷ An antiquarian gentleman-scholar and collector of documents, Simonds D'Ewes, employed "an industrious servant" to copy his edition of the parliamentary papers of Elizabeth's reign that he compiled in a massive scribal edition. However, D'Ewes did the actual copying himself in a different project—a transcription of Fleta, a medieval commentary on the laws of England.¹¹⁸ As one legal historian has observed in relation to Coke's "Great Book of Conveyances," at least up until the middle of the seventeenth century, the differentiation between professional categories of English lawyers was less about the nature of the tasks done than "the superior intellectual capacities and training" that the upper order of the Bar, the barristers, were supposed to bring to them.¹¹⁹ In that case, Coke's collection of conveyances can be seen as an extension of the belief that deep knowledge of the common law was intimately connected to a detailed familiarity with its written "forms" (sample forms contained in formularies, as well as other written expressions of the law such as yearbook cases or a work like Coke Upon Littleton), which one might think of, in a Platonic sense, as expressions of what could only ever be imperfect instantiations of the "true" common law. Reading was obviously crucial to acquiring any such deep knowledge. In addition there were practices in which one would form the letters and words of those imperfect instantiations in one's own hand, "spatializing" acquired knowledge, on the pages of commonplace books and in manuscripts of collected cases, sample conveyances and pleadings, and other scribal papers.¹²⁰	78
One "history of the book" scholar, Harold Love, has presented a compelling account of how in seventeenth-century England, handwritten texts continued to be produced despite the increased availability of publishing in print form, and other scholars have pursued this and related themes in an American setting, as well as a more specifically legal context.¹²¹ Similar observations on the perseverance of handwritten texts can be made about the Massachusetts Bay of Lechford's day. The first printing press arrived in the colony the same year as Lechford himself, 1638. The first item that was printed was "the oath of a free-man," the colony's oath of citizenship. However, there are entries in the Notebook recording handwritten copies Lechford made of the oath in 1640, after the 1639 printing.¹²² Printed forms for subpoenas, deeds, letters of attorney and the like, we are told, date only from 1688, when Governor Andros became keen to introduce "correct" English procedure, and their use lapsed with the end of his regime, not to return until 1692 when the colony's charter was restored.¹²³	79
In certain contexts, the colonists certainly "aspired" to print. Two thousand copies were made of a broadside of the capital laws of the Body of Liberties.¹²⁴ It seems that a printed copy of all of the colony's laws was much desired—the Epistle to the Laws and Liberties referred to "our hasty indeavour to satisfie your longing expectation, and frequent complaints for want of such a volume to be published in print: wherin (upon every occasion) you might readily see the rule which you ought to walke by." The failure to make printed copies of the full text of the Body of Liberties may have reflected the extent to which the document was oriented toward English affairs, as we have seen in relation to Liberty 95§1. Perhaps this was a way to keep the document out of the hands of colony residents who would have no way to know about the impressive liberties it contained.	80
Capital laws were obviously a different kettle of fish. Colonists would need to know what these were in order to avoid engaging in behavior that would place the colony's covenant with God at serious risk. Indeed, a law passed in 1642 required "parents & masters" to ensure that children under their care were able "to read & undestand the principles of religion and the capital lawes of the country." When this requirement was reiterated in the Laws and Liberties, servants and apprentices were expressly included among those to whom the duty to catechize in these areas was owed.¹²⁵ The need to have the capital laws widely available did not then parallel the need for wide access to the liberties themselves.	81
In other words, as history of the book scholarship has emphasized, the existence of print technology did not dictate its actual use in every situation. Often the colony preferred to rely on the handwritten texts produced by Lechford and other "legal literates" rather than printed copies and forms. As Mary Sarah Bilder wrote when she coined that term, "One of the facts that confronts anyone who reads colonial legal documents is the enormous time that was devoted to the copying of material. Records from town and colony books were copied for lawsuits. Deeds were copied as evidence of land transactions. Wills were copied for purposes of inventories and probate. Assembly meetings were copied to testify to the acts passed. And even private correspondence was copied to testify to the exchange of information."¹²⁶ Both the Body of Liberties and the Laws and Liberties contained provisions allowing anyone to record on the public rolls any testimony given on oath or any legally confirmed deed or evidence, as well as providing "free libertie to search and view any Rolls, Records or registers of any Court or Office" and for a fee to have "a Transcript or exemplification ... written, examined and signed by the hand of the Officer of the Office."¹²⁷ Copying allowed litigants to reconstruct arguments for their cases, and it made possible the private study of public documents, which gentlemen-scholars like D'Ewes were interested in.¹²⁸	82
Hand copying guarded against loss in transatlantic transportation—multiple copies of an important document could be sent on more than one ship.¹²⁹ It also made possible the dissemination of an "underground" document like the Child petition. Robert Child's brother, John Child, did publish the petition in print in London in a collection of papers entitled New England's Jonas Cast up at London (1647). Edward Winslow, empowered by the Bay Colony to deal with this bad press, set out the colony's side of things in New England's Salamander (1647). Winslow attempted to confirm the rumor that John Child had tried to refute, namely, that a ship carrying a copy of the petition to England would have sunk during a storm if passengers had not insisted on throwing the God-offending copy overboard.	83
For working lawyers, copying by hand and having access to such copies had a very specific practical value. Lawyers recognized just how much thinking and effort went into the creation of usable standard forms for use in the court procedure and business transactions they faced in their everyday practice. The value of such models is evidenced by the immense popularity of a form book like William West's Symboleography and other popular practice manuals such as Michael Dalton's Countrey Justice.¹³⁰ However, since individual uses of these standard forms might need to be fine-tuned to particular circumstances, it might have been thought unwise to pay for printed copies of forms when a handwritten alteration might have to be made anyway. Even in the standard-form situation, once effective wording was hit upon, it may in some cases have been judged easier or more economical to make a handwritten copy from copies rather than pay for printed forms. Harold Love reported that since many seventeenth-century English legal documents contained conventional and repetitive wording, these were filed for future use in the pages of a commonplace book.¹³¹	84
Indeed, the Notebook of Thomas Lechford was just this kind of book, since he often recorded an entire document in it, rather than a one-line statement describing the work done. This may have been to fix the form for future use in a similar situation. The end of the Notebook manuscript includes forty-six pages of extracts from legal instruments in a hand other than Lechford's. These extracts may have originated with an English attorney Lechford had a clerical relationship with.¹³² They probably served as "sample" conveyances and pleadings with much the same function as modern-day law firms' banks of "precedents," that is, providing a pool of documents from previous transactions or proceedings from which boilerplate or general guidance can be extracted and used in the drafting of new documents.	85
In any event, it is important for us to adjust our present-day ideas about the relative value of printed and unprinted materials. In Lechford's time, for a wide variety of reasons—necessity, cost, access, aesthetics, culture, and politics—handwritten copying remained an important lawyerly activity. This was especially so with respect to the acquisition and storing of legal knowledge, one of the aims of which was to learn the amorphous shape and feel of the common law through laborious handwritten reproduction of its imperfect pieces. The memory grooming associated with such painstaking reproduction actually intensified with the shift to print, creating what Richard Ross has termed a "memorial culture" in which memory becomes "an individual storehouse of short-to-medium term, highly particular legal authorities."¹³³ Indeed, handwriting itself and the range of its possible meanings would multiply as American culture became print-saturated in the eighteenth century.¹³⁴	86
It might seem counterintuitive to situate a reevaluation of Lechford in his copying work. Copying, after all, is not particularly difficult or even specifically legal. Any literate person in sixteenth- and seventeenth-century England such a schoolmaster, shopkeeper, or clergyman could act as a scrivener and many often did—writing a letter, recording a will, or setting down a business agreement at the request of an illiterate neighbor.¹³⁵ The work of a copyist or scrivener was not particularly glamorous or sophisticated. As Lechford himself put it, much of this work was the writing of mere "petty things." British legal historian John Baker has written, "[s]criveners, or professional writers, drew contracts and conveyances and therefore must not be overlooked in a study of the history of solicitors; but drawing documents was not a peculiarly legal role and so even the most ambitious scrivener ought not to be classed as a lawyer."¹³⁶	87
One can see then why, when Thomas Barnes offered his reevaluation of Lechford, he focused primarily on Lechford's pleadings and other work that rose to a barrister-like level.¹³⁷ After identifying five of Lechford's pleadings on behalf of the defendant, "[t]he contemporary mark of a good pleader," we have seen how Barnes focused on the demurrer that relied on Lechford's own proposal that all declarations be required to be submitted in writing, claiming that his client did not need to answer because the plaintiff had not complied with this requirement. Barnes's conclusion was that, while the evidence is slim, it is sufficient to say that Lechford's pleading rose to the level of "the ablest barrister." Furthermore, Barnes identified this handful of pleadings as Lechford's "greatest contribution to the Bay Colony and to the development of its legal profession."¹³⁸

Record-Keeping and Other Troublemaking: Thomas Lechford and Law Reform in Colonial Massachusetts

Angela Fernandez

I. Thomas Lechford—"Outsider" and "Insider"

II. Challenges to Puritan Jurisprudence

A. Recording Reasons

B. Church Membership

III. Copying in Context