The evolution of New England laws from a religious basis toward secular Common Law happened gradually. It took a big step forward in Connecticut in 1712 when the father-and-son team of John and Daniel Gard allegedly killed a stranger who came to their town. But was it murder or manslaughter?
The Gards lived in Stonington, and they were visiting a neighbor, Daniel Eldridge, a sea captain. William Whitear, a visitor from Long Island, came to the Eldridge house. It’s not recorded what started the trouble between Whitear and the Gards, but an argument broke out.
Daniel Gard challenged Whitear to a fight. When witnesses separated the two men, Whitear had clearly gotten the worst of it.
Manslaughter or Murther?
Court records described the incident:
On the 16th day of August, 1712, a quarrel arose at the house of Daniel Eldridge in Stonington, between the prisoner, Daniel Gard, and William Whitear, a stranger, and that the prisoner challenged said Whitear to fight; whereupon they went out of the house, and closed in with one another, and that the prisoner threw said Whitear on the ground and fell with him, and there lay until they were parted; and that said. Whitear said he told the prisoner immediately he had killed him.
Seven days after the fight, Whitear died. An autopsy suggested his bladder had burst in the fight, and he died of the resulting infection. Prosecutors initially charged both Daniel and his father with murder, but then cleared John of joining the fight. Daniel stood trial, however, and a jury found him guilty. But the jury also made a curious finding:
… whether upon the whole matter the aforesaid Daniel Gard is guilty of murther or manslaughter we leave to the discretion of the court.
Connecticut hadn’t actually legislated manslaughter at the time. Legislators, jealous of the powers of colonial courts, specified that judges could only enforce specifically “Connecticut laws.”
In cases where the law was unclear and there were no colonial acts to consult, the courts had traditionally turned to the Bible for guidance. In 1672, Thomas Rood had been convicted of incest. The law said nothing about the crime. The General Court then settled the matter by declaring that under the “law of God,” Rood must be put to death.
English Common Law
In the Gard case, the judges at the New London courthouse again appealed to the General Court for guidance. And in this instance, the Legislature took a different course. They instructed that the judges could follow English Common Law in setting Gard’s sentence.
When the court finally issued a sentence in November, it actually followed neither common law nor Connecticut law. Instead, Gard received a hybrid sentence, a common colonial punishment. He had to stand upon the gallows for an hour with a noose around his neck. Following that he received 39 lashes.
Scholars have noted that the case against the Gards opened the door to greater use of English Common Law in the American colonies. Less than 10 years later the General Court actually specified that, in cases where Connecticut law was silent on an issue, English Common Law would be the default.
The New England States: Their Constitutional, Judicial, Educational, Commercial, Professional and Industrial History by William Davis and The Solemn Sentence of Death: Capital Punishment in Connecticut by Lawrence Goodheart.