The evolution of New England laws from religious based findings toward secular Common Law was a gradual affair, and it took a big step forward in Connecticut in 1712 when the father and son team of John and Daniel Gard 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, it was clear Whitear had gotten the worst of it. 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 John was cleared of being part of the fight. Daniel stood trial, however, and was convicted. But the jury 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.”
Manslaughter was not actually legislated in Connecticut at the time. Legislators were jealous of the powers of colonial courts, and specified that judges were empowered to 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 was silent on the crime, and the General Court settled the matter by declaring that under the “law of God,” Rood must be put to death.
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 sentence in November, it actually followed neither common law nor Connecticut law. Instead, Gard received a hybrid sentence that was a common colonial punishment. He was forced to stand upon the gallows for an hour with a noose around his neck. Following that he was whipped 39 times.
Scholars have noted that the case against the Gards opened the door to greater use of English Common Law in the American colonies, and less than ten years later the General Court would actually specify 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.