Law in Early America
Summary and Keywords
Law in early America came from many sources. To focus exclusively on the English common law excludes other vital sources including (but not limited to) civil law, canon law, lex mercatoria (the law merchant), and custom. Also, the number of sources increases the farther back in time one goes and the greater the geographic area under consideration.
By the 18th century, common law had come to dominate, but not snuff out, other competing legal traditions, in part due to the numerical, political, military, and linguistic advantages of its users. English colonists were well-acquainted with the common law, but after arriving in the New World, the process of adaptation to new experiences and new surroundings meant that English common law would undergo numerous alterations.
Colonists in early America had to create legal explanations for the dispossession of Native American land and the appropriation of labor by enslaved Native Americans and Africans. Their colonial charters provided that all colonial law must conform to English law, but deviations began to appear in several areas almost from the first moment of colonization. When controversies arose within the colonies, not all disagreements were settled in courts: churches and merchants provided alternative settings to arbitrate disputes. In part, other groups provided mediation because there were so few trained lawyers and judges available in 17th-century colonies. By the 18th century, however, the number of trained practitioners increased, and the sophistication of legal knowledge in the colonies grew. The majority of legal work handled by colonial lawyers concerned contracts and property.
Law and the language of rights became more widely used by early Americans as the English attempted to tighten their control over the colonists in the mid-18th century. Rights and law became firmly linked with the Revolution in the minds of Americans, so much so that law, rights, and the American Revolution continue to form an integral part of American national identity.
The Origins of American Law
American law did not evolve exclusively from American experiences but developed out of disparate sources rooted in a variety of legal traditions. Native peoples and Africans enslaved by Europeans held their own views on how law worked, views that remain difficult to retrieve given the absence of literacy in their communities in the 17th and 18th centuries. The attitudes of European explorers and colonists about law largely depended upon their countries of origin. Colonists reared in continental Europe had a greater exposure to the civil law tradition, while settlers drawn from England commenced their travels with an awareness of common law ideas. Alongside both lay ecclesiastical forms of justice (canon law) that shaped European ideas about marriage, divorce, inheritance, and family law. Among merchants, a separate legal tradition called lex mercatoria prevailed, which favored speedy resolutions generally managed via arbitration. In addition to civil, common, ecclesiastical, and mercantile sources of law, one must add custom, the traditional method for settling disputes and resolving problems that might not be recorded in any law book but which might be adhered to rigorously by individuals from a shared community. This diversity of experiences makes it difficult to write about law in early America as if it were a unified set of principles. The varied backgrounds of Native Americans, enslaved Africans, and multiple European colonists preclude such easy characterizations.
To take but one example of this complexity, consider how historian Patricia Seed has partially traced differing views on land and property ownership in her book Ceremonies of Possession in Europe’s Conquest of the New World, 1492–1640.1 Seed considers the single legal concept of property rights in land from the perspectives of the English, French, Spanish, Portuguese, and Dutch upon their arrival in the New World. She demonstrates how law was culturally embedded for these early settlers; even when confronted with a similar legal concept like property, the result was wildly divergent approaches to expressing ownership of land. From Seed’s example about a single legal concept, it becomes obvious that any generalization about law in early America must be handled with care: increase the number of individuals with culturally diverse backgrounds being discussed and the complexity of any conclusion may prove difficult to resolve.
A further complication to this picture is to define where and when early America existed. Although it is commonplace to assume that the nucleus of “early America” consisted of the thirteen colonies that declared their independence from England in 1776, were one to travel back in a time machine to the 15th, 16th, or 17th century, that would seem presumptuous. The mainland colonies governed by British rule were only a portion of those constituting the British empire in the Western Hemisphere, and the Spanish, Portuguese, French, Swedes, Dutch, and Native peoples would have disputed their claims to dominance throughout the region. Any focus upon law exclusively on the mainland of North America in this period must come with a caveat: powerful empires other than England’s made significant claims to the New World and the farther back in time one looks, the more claimants and their varied legal systems jostle for superiority.
Leaving these major caveats to one side, by the 18th century, the most significant source of early America’s law was England’s common law tradition. The numerical superiority of English settlements eventually overwhelmed the communities of Native Americans, Dutch, Swedes, Finns, and others who crowded mainland America. Two key rivals to English dominance remained. To the north, in what would become Canada, French legal norms drawn from the civil law maintained their hold on the local population long after 1763, when the British took control of New France. To the south, French and Spanish legal concepts based upon civil law prevailed in Florida, Louisiana, Mexico, and the many Caribbean islands under those two empires well into the 19th, 20th, and 21st centuries. But regardless of which imperial power settled a specific portion of the Western Hemisphere, European legal ideas and experiences migrated to the New World during the colonial period. Those ideas and experiences arrived in the minds of settlers who traveled to the New World and in the books they brought with them. The transmission of European legal ideas, combined with New World experiences unlike many found in Europe, such as race-based slavery, created a colonial legal culture that had long-lasting effects upon American society.
England’s Legal Traditions
For the English settlers who came to early America, many had a well-formed idea of how law operated in society. In early modern England, one did not have to travel to London’s exalted Westminster law courts to know how the law worked in everyday society. In their daily lives, legal norms, procedures, and penalties surrounded and regulated experiences for all English men and women. Courts happened in so many settings—a lord’s manor court, a town’s borough court, a fair’s market court—that most English men and women had seen a judge or a trial many times during their lives. The travelling assizes that brought justices from London to towns across England had the same effect as a circus arriving. The king’s justices appeared on horseback and were escorted into town by all local dignitaries to open the quarterly court sessions, while common folk lined the streets to watch the procession. The colorful beginning could have an even more vivid conclusion, namely, the public spectacle of hanging a thief or a murderer after all the trials were ended. These courts were surrounded by enough ritual pomp and ceremony to convey the seriousness of legal events to even the illiterate of English society, in much the same way that stained glass windows transmitted visual knowledge of the Bible to the illiterate faithful who gathered in English cathedrals.
Aside from the doing of justice, judges were primarily responsible for keeping the populace in check at a time when England had no police force or effective penitentiaries to monitor or discipline public behavior when it went wrong. For English criminals who transgressed the law in the 16th, 17th, or 18th centuries, the options for punishment were limited. Fines, publicly shaming offenders in stocks, mutilation through branding, ear cropping, and whipping, or execution remained the judges’ only options—, that is, until transportation to a New World colony became a viable possibility. The threat of execution became particularly severe in the 17th and 18th centuries as the list of capital crimes grew lengthy, but scholars now believe that criminal execution was used relatively sparingly. Marxist historians, foremost among them E. P. Thompson and scholars trained by him, have explored these phenomena as an exercise in class-based domination.2 Why would a society create laws so severe that hanging should have been an almost daily event, but wasn’t? Using the legal system to cause terror in ordinary people to keep them in check was a weapon of the rich and powerful, but so too was the possibility of mercy. This carrot-and-stick process, with the judge’s option to offer a pardon to the condemned, rather than the gallows, shored up the impartial-seeming justice system and reinforced the power of the ruling elite at the same time. By granting mercy to the occasional convict, judges subtly convinced the masses that law was dispensed fairly to everyone, thus inspiring support for law and lawgivers among all ranks of English society, not just the elites who wrote laws and then enforced them from the bench. Even from the very steps of the scaffold, a convicted man was expected to aver that law was fair, a practice that continued in early America. Printers in England and New England published pamphlets containing the last humble and godly ramblings of condemned men. Colonists expected criminals to behave the same way in America, although the list of capital crimes was not as lengthy as the one in England.
In addition to formal adjudication, Englishmen and colonists knew law through the ways they experienced it in everyday life. The two types of law they would have understood best involved selling, mortgaging, leasing, inheriting property, and contracts for labor or goods. Goods sold had to be warranted for soundness; property mortgaged had to have proper documentation. As a result, lawyers became more common in early modern England, for they handled the daily transaction of business, land, and goods that passed from hand to hand in a market economy. While English law enabled men to conduct business, the common law technically restricted women to legally subordinate positions. Women who married passed from legal subservience under their fathers to legal invisibility under their husbands (a status known as feme covert). Unmarried women who became adults or widows escaped the supervision of an adult male for their legal dealings. In theory, married women could not contract debts or run businesses; whatever property they brought with them into marriage became their husbands’, and wealthy families took extreme measures to control property given to daughters, so that husbands could not exploit or waste their lands. In reality, most boroughs passed laws permitting married women to trade and own property, effectively admitting that feme sole trading women operated outside their sex’s legal norms. One feature of modern life would have been completely unknown in early modern England: divorce. Only the wealthy could afford to petition for divorce through the ecclesiastic courts of England and even then, divorce was only granted for limited reasons, such as adultery. Beginning in 1670 so-called “legislative divorces” became possible, effected by a private bill through Parliament, but they too remained far outside the reach of average English citizens.
Law regulated relationships between man and wife, seller and purchaser, and even community member and outsider. The Elizabethan poor law mandated that indigent persons be returned to the parish of their birth. Regardless of personal choice, a woman with no means of support could be legally evicted from village after village (“warned out”) until she was forced back to her birthplace. This process was adopted in English colonies, particularly in the mid-18th century when poverty rates rose following a series of wars between England and France. But even residents who never left home for an entire lifetime lived in a world ringed with laws. Incorporated towns chartered by the crown, such as London, created their own laws about roads, fires, markets, and worship, to name only a few areas regulated by civic authority.
Colonial Charters and Local Adaptation
Although the charters that English monarchs granted to colonists required that English law be observed in their New World settlements, colonists would have the chance to develop local laws largely suited to their own principles. As royal favors in return for promises of future economic royalties or as payoffs for services rendered to the crown, English kings gave charters to merchant companies, such as Virginia, or to groups of noble proprietors, as for Maryland and the Carolinas. The charters provided the legal foundation for local colonial authority, and any disputes about governance would ultimately be judged by whether a law, a governor’s action, or a court decision exceeded the original mandate given in a royal charter. By the 18th century, most charters establishing English colonies in America had been revoked and replaced, dispossessing companies and proprietors in favor of the crown, so that the king could select royal governors and council members for each colony. What the crown gave, the crown could take back. Medieval feudal relations and royal prerogative dictated that the English king was the ultimate legal owner of all his country’s lands, even those in America.
Colonists were supposed to send copies of the laws they created back to England for royal approval, but they did so only sporadically in the 18th century. When their laws seemed to infringe upon the royal prerogative or exceeded the grant of power found in their charter, the crown would disallow the legislation. This disallowance could happen for a variety of reasons: a negative report from a royal governor, a bad review by the Board of Trade and Plantations, which monitored colonial activities after the 1690s, or an adverse account from the Secretary of State charged with supervising the colonies. Any or all of these actions could lead to the King, via his Privy Council, issuing a proclamation that declared a colonial law void.
Laws might be repealed at any time, even decades after they were first passed. This time-lag in receiving royal approval meant that there was a quality of uncertainty that surrounded all law in early America, especially if a law touched upon controversial topics that colonists were supposed to leave to the English and Parliament. As tension rose in the 1760s and 1770s, more and more laws from American colonies faced close scrutiny and possible revocation from London. If colonists thought that their opinions and laws were being disregarded or discounted, however, they were receiving only a mild taste of what they themselves had doled out to others, such as enslaved Africans and Native peoples who had endured legal oblivion at the colonists’ hands.
Males who were legally subordinate in Europe, such as children and apprentices, typically had rights that improved with time once they “graduated” from their inferior status to one of full personhood. Unfortunately, two groups in early America found their legal status to be almost permanently inferior, with no possibility of improvement: Native Americans and African slaves. Both the Spaniards and English reduced indigenous peoples to slavery, but the Spanish had greater success, numerically at least. Native populations dwindled following prolonged contact with European diseases; significant numbers of them were nonetheless forced into servitude by Europeans. Estimates of the total number of Native peoples enslaved run into the hundreds of thousands. In New England, English colonists enslaved thousands following conflicts like the Pequot War that peppered the 17th century. To prevent flight, it was not uncommon to sell a Native person far from his original homeland and people. In the colonial South, tens of thousands of Native people ended up in bondage, working on plantations guarded by their English masters.3 Justifications for enslaving Natives were typically drawn from Biblical sources, for as unconverted heathens, their belief systems in addition to their dress, behavior, and other-ness condemned them to perpetual inferior status.
But the near-permanent shortage of labor in the New World meant that Native peoples would never provide enough manpower to satisfy the greed of the masters who owned them. To work their mines and plantations, the Spanish imported Africans to the New World to labor beside the Native peoples as slaves. The Catholicism that dominated Spanish settlements, in addition to the civil law tradition that the Spaniards brought with them, dictated that slaves should be treated with dignity and that their personhood should be recognized. For example, Spanish law mandated that slaves who married should not be separated, that slaves should be allowed to rest and attend worship services on Sunday, and that slaves should be able to keep and own property. This last legal consideration, a remnant of Roman law that had survived within Spain’s civil law, permitted slaves to amass money so they could purchase their own freedom, a process known as coartación. Spanish law prohibited required work from slaves on Sundays, so work done on that day would often be compensated in various ways. Similar protections appeared in France’s New World colonies and were codified in the Code Noir, a compilation of French slave-related laws published in 1685. Legally, the lot of slaves under French and Spanish regimes appeared milder than the form of slavery that evolved under English control, since slaves working on English plantations had no such legal safeguards. However, scholars have disputed whether Spanish and French laws were actually enforced or actually protected the most vulnerable residents in the New World.
In English Caribbean settlements, slavery forced some of the first legal innovations that became part of America’s laws. Unlike the Spanish and French, who derived many of their slave laws from Roman legal sources, the English had no common law tradition regarding slaves. Serfdom and villeinage, forms of legal unfreedom in the Middle Ages, had disappeared from early modern England, so the English borrowed many laws and practices for controlling slaves from their colonial Spanish and French Caribbean counterparts. Crudely constructing slave laws using the forms of English common law, such as confusing whether slaves could have legal volition or were to be treated as mere pieces of property, 17th-century Englishmen crafted slave codes in the Caribbean that were copied in whole or in part by English settlers who moved to continental North America later in the century. Although American slave law appeared orderly and precise by the 19th century, it remained chaotic and unsystematic in the colonial period. Slaves had no direct impact upon the shaping of American law as lawmakers or legal interpreters, but their actions of resistance, including running away, vagrancy, and shirking, inspired the creation of American laws to curb their “misbehavior.” Slaves on New World plantations may have used African legal procedures among themselves during the first few generations, but their European masters either did not know or care about such traditions. Spanish, French, or English laws and procedures prevailed whenever slaves were brought to court, usually for capital crimes committed against whites like arson, rape, or murder. Punishments for less violent slave crimes were handled by the individual master, and most slaves never encountered any transplanted, formal European legal procedures during their lifetimes. For many slaves, the master was the law.
Spanish and French law, derived from Roman origins, recognized the basic humanity of individuals enslaved and their court proceedings differed in presumptions made about the status of an individual. While English courts after the mid-1600s presumed that individuals of African origin were slaves unless proven otherwise, Spanish and French officials proceeded from the assumption of freedom for all individuals unless proven otherwise. The single-judge/no-jury method of justice favored in Spanish and French judicial settings meant that judges were unfettered in reaching their determinations in lawsuits. Moreover, judges could direct the legal proceedings to follow their own interests rather than wait for lawyers to present or not present information on a given topic. This greater flexibility may have offered some additional protections to individuals held in bondage once they entered the courtroom. But again, in most instances, the master was the law.
Like the Africans, Native Americans found themselves disempowered through legal procedures utilized by Europeans who sought to dominate them. Whether reduced to slavery or not, Native Americans discovered that their legal practices and tribal laws were routinely ignored by Europeans, who dismissed them as barbaric or quaint customs. Few legal concepts derived from Native Americans became part of mainstream American legal thought, in part because Europeans could not accommodate the cultural implications that would follow such acceptance. For example, native couples could readily divorce, but this was unthinkable in both Catholic and Protestant settlements, where law and religion combined to prevent such family divisions.
A clear example of the dissonance between native and European legal traditions can be seen in attitudes toward real property. Native tribes tended to treat land as a spiritual commodity that was shared communally by all living things, and the land itself might be endowed with mystical qualities as the home of higher entities. Tribes recognized that some lands “belonged” to rival groups or that a specific planting ground “belonged” to a particular family group, but in the colonial era, native peoples considered land a community, spirit-filled asset that should not be desecrated by excessive fishing or hunting. The European practice of treating land as an individually held piece of property with which the owner could do anything was alien to Native American legal conceptions. Sometimes Europeans “purchased” lands from Native Americans for settlement via treaties, but whether Indians understood European ideas about exclusive property rights remains unclear. More often than not, however, European-born settlers simply considered the land to be theirs, and they relied upon royal charters to justify selling and leasing that property to others. When indigenous peoples returned to traditional hunting grounds and found permanent settlers there who claimed exclusive use of a specific piece of land, the stage was set for conflict between the groups. Such legal-cultural misunderstandings were common throughout the New World and persisted until treaties became the legal basis for reclaiming territory by modern tribal entities.
Legal Structures With or Without Courts
Within English colonial settlements, a complex legal regime developed to resolve disputes among settlers. Justices of the peace decided minor problems with low financial costs. Justices of the peace came from the ranks of colonial gentry, and their social status helped enforce decisions that they made individually. Collectively, justices of the peace rendered judgment in county courts, where more costly issues came before them four times a year. Gentlemen frequently held multiple positions of authority, and it was not uncommon in the 17th and 18th century for justices of the peace to serve as members of their colonial assembly, muster the local militia as officers, and rule on cases from the county court bench. In their individual capacity, justices of the peace were the most familiar face of colonial legal authority in each community. Armed with Michael Dalton’s The Countrey Justice, an English-printed manual to cover all legal occasions and the first book most Americans imported for legal guidance, justices of the peace resolved a variety of legal disagreements.4
Above the justices of the peace and the county courts on which they sat were courts of appeal, including colonial supreme courts. Unlike modern America’s courts, in which virtually all appeals are based on asserted errors at trial, colonial appeals frequently required a completely new trial before new judges. Ultimately, a decision rendered by the highest colonial court might be appealed either to a governor and his local council, or to England and the King’s Privy Council, the Crown’s advisory group, in a process that historian Joseph Smith has described as foreshadowing modern judicial review.5 No laws or legal decisions could ever be considered final in the colonies if they could be appealed to England. In practical effect though, American colonists in the 18th century grew accustomed to managing their own legal affairs through colonial assemblies and court systems without expensive interference from imperial authorities in London.
Other groups also resolved legal disputes within the colonial world. Well into the 18th century, merchants continued to rely upon the lex mercatoria to resolve disputes with other men of commerce. Some of the earliest Chambers of Commerce in America in New York and Charleston functioned partially as makeshift courts for wholesalers and monied men, who preferred to receive justice at the hands of their fellow merchants rather than take their disputes to court. In the 17th century, but largely only in New England, churches frequently intervened between feuding members to settle both spiritual and secular arguments. As historians David Konig and William Nelson have described, church-based dispute resolution kept many cases from reaching the courthouse.6 The methods varied by congregation, but it was common to appoint a group of arbitrators who met with each of the aggrieved parties; the arbitrators then attempted to conciliate the combatants so that Puritan community harmony could be restored. Dispute resolution worked best in homogenous communities where all residents belonged to the same church. Church-based solutions declined in popularity and efficacy in the 18th century as New World community populations diversified and dispersed, churches multiplied in number and denominational variety, and economic disparities increased.7
As financial contacts expanded across the Atlantic and down the seaboard in the 18th century, traders and merchants in coastal towns conducted business with far-flung inland proprietors who might not be known to them through face-to-face dealings. Women routinely appeared in court to sue and be sued. Not surprisingly, the number of lawsuits rose almost exponentially in the 18th century due to the booming colonial population, decline of church-based dispute resolution, and tremendous economic growth.
Law With and Without Lawyers
In the 17th century, few lawyers migrated to American colonial settlements. A very few settlers in these early groups may have had two or three years’ training at the Inns of Court, the method of legal apprenticeship in London. But from the beginning, lawyers either were disdained in the new communities or there was simply not enough work to employ them full-time. In New England, the religious covenant that bound individuals together in loving relations with God and each other discouraged them from prosecuting cases through courts. In the South, some high-born settlers preferred to resolve their disputes without courtrooms. Conceptions of honor and deference gave face-to-face solutions greater moral weight than allowing judges to decide conflicts impersonally. In addition to societal opprobrium, some legislatures prevented lawyers from plying their trade. The Massachusetts General Court, for example, at one time barred advocates from charging fees for representing clients. Because of these attitudes, and because judges and law clerks in any event knew virtually nothing about formal adjudication, few London-trained lawyers journeyed to America to ply their trade. This may have made for rough, intuitive justice in the 17th century, in which judges sometimes resorted to Biblical solutions, especially in Puritan New England, and professional lawyers no doubt disdained such proceedings as anything but law. Despite the absence of trained attorneys, however, many individuals, including a few women, developed thriving legal practices, using their memory of English legal procedures and rough knowledge of the law to plead cases in colonial courts. These individuals almost always worked as make-shift attorneys in addition to their regular vocations as farmers or merchants.8
By the 18th century, educated, full-time lawyers became more common in the colonies, some trained at the Inns of Court, but most others obtaining their legal education through apprenticeship to established colonial attorneys. Learning from a working attorney provided access to a lawyer’s library and examples of how to handle clients and win cases. Having completed his bachelor’s degree at Harvard College, John Adams apprenticed himself in 1756 to attorney James Putnam. Adams studied Roman civil law texts like Justinian’s Institutes during his apprenticeship in addition to the English common law and probably helped Putnam draft simple bills and letters for delivery to court and clients. After two years of study, Adams returned home to Braintree, continued his studies, and applied for admission to the local bar association, Boston being one of the rare colonial cities that had a bar association that determined who could practice law in the courts. The best lawyers in Boston questioned him on legal matters before signing his certificate and allowing him to be sworn in as a bona fide attorney. Even after admission to the bar, Adams recognized how poorly he had been trained during his apprenticeship. He applied to Jeremy Gridley, the leading lawyer in Boston, to guide him to further learning as well as additional clients. Gridley did both, and Adams’ practice flourished during the next fifteen years.9
In time, Adams collected his own library of legal literature, much the same way that Thomas Jefferson of Virginia did. Adams owned books on common law, civil law, court opinions from England (nearly 20 volumes), plus abridgments that summarized important opinions under topical headings. To stay up to date on legal developments, and because almost no books about the law were published in America during the colonial period, Adams made arrangements with English booksellers to send him new law books as they were published, as did many well-read colonial gentlemen, whether they practiced law or not. Until the end of the 18th century, opinions rendered in American courtrooms were usually recorded only by lawyers who were present to hear them. A few exceptional individuals recorded all the cases they heard and circulated their notes to others in their social circle or prepared them for eventual publication. Josiah Quincy in Massachusetts, John Dickinson in Pennsylvania, and John Rutledge in South Carolina stood out as the earliest reporters in their respective jurisdictions, though only Quincy’s notes were published after his death. For all others, like Adams, taking notes about judgments delivered in court was a personal activity. Adams and other colonial lawyers would also have read Sir Edward Coke’s Institutes of the Laws of England, a four volume, 17th-century guide to English law and process, and William Blackstone’s Commentaries on English law published in the 1760s.10 Much of Adams’ studies were given over to understanding actions about contract and property, with some time devoted to admiralty law and commercial matters like commissions. Like most 18th-century lawyers, his legal practice gave him little reason to study, or to use, material about criminal law or torts. The orderly presentation of law in Coke and Blackstone, which organized English legal opinions by topic, subtopic, and sub-subtopic, gave a formal structure and systematic feel to the otherwise chaotic legal decisions rendered in English courts.11
While authorities like Coke or Blackstone could teach Adams much about the correct form for pleading a case and give numerous examples of cases won in support of a specific legal principle, they did not always carry the day in American courtrooms. Unlike Adams and Jefferson, colonial judges in the 18th century were often not well read in technical legal matters. Moreover, individuals who had no legal training continued to appear before 18th-century courts to plead their own causes and those of their neighbors. Adams’ worst nightmare was the first case he pleaded and lost to an untrained man who knew much less law than Adams did, but who knew how to persuade a judge and jury with commonsense arguments. The decisions made by judges, learned or not, remained so crucial to his budding legal career that Adams attended court sessions incessantly to watch and learn all that he could not discover from books alone.
As in England, the great majority of legal cases handled by Adams and other colonial attorneys concerned contracts and property. Getting and selling services and goods was important in the New World, since labor was scarce and many finished goods had to be imported from abroad. Property, on the other hand, was readily available, for land in America seemed endless to European settlers. If land was plentiful, disputes about it arose with profusion, and routine quarrels involving botched surveyors’ maps, faulty deeds, or squatters-versus-owners provided a steady stream of business for colonial courts. The abundance of real property prompted some important changes in legal doctrine that would have seemed unusual in the Old World. For example, instead of providing land for only the eldest son (primogeniture), many colonial families subdivided their property, giving land to each of their children or giving land to each son and moveable goods such as household furnishings to each daughter. Other than in the English county of Kent, where such equitable divisions were common (a practice known as gavelkind), equal or near-equal division of lands among a family’s children was uncommon in England. Land’s scarcity in Europe made such legal generosity culturally unreasonable there but relatively easy in America.
Legislation, Courts, and the Coming of the American Revolution
Although modern readers are accustomed to a strong distinction between legislative enactments (laws affecting groups) and judicial opinions (cases usually affecting particular individuals), there seems to have been little difference in the colonial period between work done by legislatures and courts. Multiple-office holding, with the same men serving as both representatives and judges, was common at this time and may have contributed to this blurring effect. In the 17th century particularly, colonial assemblies engaged in actions that nowadays would normally be associated with the judiciary. That is, “private” legislation could be passed by an assembly to resolve a specific conflict; for example, to arbitrate a land dispute or divorce a married couple. In what was seen as an innovation, colonial assemblies, except in South Carolina, began granting divorces. These so-called “private laws” remained common through the colonial period, and only in the early national period would these actions come to be seen as the exclusive jurisdiction of courts. In addition to private laws, 17th- and 18th-century colonial legislatures passed laws affecting a wide range of activities in everyday life, including laws establishing ports, towns, roads, markets, price structures for commodities, fences and ferries, legal procedures, religious observances, schools, health ordinances, trade with Native Americans, and much more. Scholars of law in this period have demonstrated that lawmaking in colonial America was hardly infrequent, rare, or libertarian in nature.
Lacking direction on many of these matters from the English government under a policy called “salutary [healthy] neglect,” colonists resorted to making their own laws to regulate and improve conditions. Colonists could hardly do otherwise. If London refused to act, the legal void demanded that colonists themselves take steps to remedy local problems. Authorities in London might declare a colonial law void after the fact, but colonists still needed laws to address a variety of situations. Without close supervision from the English government in most matters, American colonists became accustomed to crafting their own laws and running their own courtrooms and legislatures in the 17th and most of the 18th century. In the 1760s, when “salutary neglect” ended and England began to intervene more directly in colonial affairs, Americans perceived the shift in supervision as an attempt to deprive them of their legal liberties and rights as Englishmen. England’s efforts to raise revenues through numerous taxes and rigorous enforcement of the Navigation Acts in the 1760s and 1770s, coupled with the presence of English military troops stationed in American port towns, created an explosive situation that culminated in the American Revolution.
Although taxes and tyranny were elements of the Revolutionary story, the leading cause of revolution was the shared sense among Americans that their rights were being trampled upon. The language of rights and legal liberties had been current among the English Radical Whigs for decades, such as John Wilkes, as they complained of the political corruption they viewed as running rampant in the English government. As Bernard Bailyn has described, the Revolution was grounded in the force of ideas about the proper role of government and the basic rights of Englishmen.12 Colonial Americans appropriated these ideas, transformed them in the New World context, and reached the conclusion suggested by Jefferson’s Declaration of Independence: when government ceases to be just toward the governed, revolution is a necessary remedy. The Declaration itself had a legal formula embedded within it: Jefferson accused the king of immoral and illegal behavior in what amounted to a royal bill of indictment. At the time of the Revolution, Americans still admired English law and the unwritten English Constitution, which they believed was the best in all the world. They merely wanted to continue enjoying their rights without interference from English politicians. The American Revolution fought in battles and debated by diplomats was at bottom about the legal position and legal rights that Americans wanted for themselves. If England would not accord them the degree of lawmaking and tax making responsibilities that colonists had grown accustomed to, then Americans would revolt and form a new government based upon laws of their own creation. The colonists’ first actions would be to create new governments built upon state constitutions in the 1770s, a repudiation of Old World beliefs that government flowed downward from kingly prerogative and divine right and an affirmation of law’s central importance in the new nation. While shifting the foundations for government power, Americans would cling to the English common law in the courtroom. For decades to come, American lawyers and judges would continue to look to English legal opinions for guidance.
Conclusion: Law as Cultural Talisman
Americans take for granted that the founding of their country was based upon a series of legal grievances about taxes and inadequate representation. The cohesive force of this nation-founding story is so strong that it remains among the most powerful cultural icons in America even in the 21st century. Put simply, every schoolchild knows the claim “no taxation without representation.” The notions that legal rights are of paramount concern, and that American citizens should have some form of legal representation in their governments, form core elements of American cultural identity. Indeed, some scholars have argued that, lacking a shared religion, a shared ancient heritage, and a shared national language, the formation of America during the Revolution and the primary role of law and Constitution-making during the 1770s and 1780s became the principal binding ties holding American society together. In measuring the impact of law upon American cultural and intellectual life, the cohesive force of law in our country’s creation is outmatched only by the omnipresence of law in every facet of American daily life. Englishmen of the early modern world considered law to be a ubiquitous part of their lives, as did Americans at the end of the 18th century, rich, poor, and middling. Although modern day Americans may take for granted their legal rights or responsibilities, they would readily admit law continues to dominate the landscape of American society.
Discussion of the Literature
American legal history, for any period, is reckoned as starting in the 1950s with the work of J. Willard Hurst. Hurst urged legal historians to abandon their obsession with the Supreme Court and all things constitutional in favor of studying law at the regional, state, and local level.13 This reorientation created a fundamental rift in the study of law’s past: constitutional scholars continue to focus upon doctrine and the Supreme Court’s personnel and decisions, while legal historians since the 1950s have explored a much wider range of topics. By pointing legal historians away from the Supreme Court (which only commenced operations in 1790), Hurst freed historians to dig more deeply into America’s colonial legal past, too. Women, Native peoples, and enslaved individuals all merited having their legal histories explored. Alternative forms of dispute resolution like arbitration and mediation, typically conducted in marketplaces and churches, not courtrooms, have been analyzed and described in greater detail by legal historians.
Hurst succeeded beyond his wildest dreams—today, legal history in America and elsewhere tends not to focus on law at the highest theoretical plane (on what state or federal supreme courts pontificate about) but on legal processes that involve ordinary people in their daily lives. However, by pushing legal historians to think beyond the confines of high courts and constitutional theory, Hurst also succeeded in scattering legal historians to the four winds: with multiple colonies or states and multiple jurisdictions, legal historians working on early America can easily experience a sort of intellectual “isolation.” A colonial legal historian may be one of only a few scholars laboring to understand a legal historical problem from the 17th or 18th century. Few topics in this period have more than a handful of studies clustered together (apart from slavery, inheritance, property, and crime); colonial scholars routinely find they are writing the “first in the field” books that offer basic explanations on law and children, law and mental health, or law-and-name-the-topic.
A further retardant to the publication of colonial legal history has been the difficulty of accessing, analyzing, and interpreting the primary materials that form its foundation. Case records from early courtrooms are not indexed by subject matter (the majority have no plaintiff or defendant index either), and most remain scattered in the various state archives that make up the Atlantic seaboard. Only the major divide between criminal and non-criminal suits offers a first order segmentation of the raw sources available to the intrepid scholar. Virtually none are digitized and only a few series have been published, so access typically must be via on-site inspection, requiring costly and time-consuming archival research. In order to discuss developments in contract law, or new events unfolding in criminal law, a legal historian must read hundreds if not thousands of individual case files, often unindexed or sorted except crudely by date. A legal historian working in early American history is frequently forced to go through thousands of pieces of paper, to draw out the simplest of connections and illustrate legal developments.
Two recently published key sources can help the novice find literature on a wide array of topics in American legal history for the 17th and 18th centuries. The volume A Companion to American Legal History, edited by Sally Hadden and Alfred Brophy, was designed to introduce the historiography of the field, focusing upon disparate time periods, peoples, topics, and philosophical approaches.14 The historiographic approach reveals the contours of extant scholarship, grouping works together that share a similar intellectual point of view, focus upon the same questions and controversies, or that reveal the development of a specific field. Elizabeth Dale’s essay on the 17th century comprehensively discusses the works published in that period, while Sally Hadden’s essay on the 18th century prior to the American Revolution provides a complementary piece that covers similar ground.15 Ellen Holmes Pearson’s essay on the era of the American Revolution, Confederation period, and the Constitution completes the chronological essays, offering more in-depth analysis of the legal histories written about various aspects of the tumultuous 1770s and 1780s.16 Other chapters, focused on particular peoples or topics, touch upon early America as well.
The second important starting point for research should be the Cambridge History of Law in America, edited by Michael Grossberg and Christopher Tomlins.17 This three-volume work brings together leading scholars who have crafted synthetic essays on their specialties (e.g., Native peoples, family law). The essays provide an expert’s perspective on the field, coupled with a persuasive argument about some element of the subject. Unlike the essays in A Companion to American Legal History, which are historiographic overviews, the chapters in the Cambridge History of Law in America focus less upon previous literature and more upon a single author’s viewpoint. These chapters are supplemented by lengthy bibliographic essays that provide the scholarly background to the subject at hand.
Aside from these two collections, a reader in search of recent works in legal history would be well advised to scan the contents of its leading journals. In the United States, the principal publications are the Law and History Review and the American Journal of Legal History. Online, the leading venues for discussing legal history are the Legal History Blog and H-Law. All four journals publish book reviews; the online ones offer legal historians the opportunity to respond to reviews of their work.
Information about French and Spanish colonial law as it impinged upon America is strongest in the realm of slave law. Vernon V. Palmer’s Through the Codes Darkly: Slave Law and Civil Law in Louisiana provides a useful introduction to how enslaved men and women in Louisiana might have experienced civil law, as opposed to their counterparts controlled by common law.18 Recent essays by Matthew Mirow are beginning to document the workings of Spanish and English Florida courts in the 18th century, offering an unparalleled opportunity to contrast those jurisdictions and their approach to early American law.19
A first step in identifying information on a specific colony’s laws is to consult the two-volume work edited by Michael Chiorazzi and Marguerite Most, Prestatehood Legal Materials: A Fifty-State Research Guide, Including New York City and the District of Columbia.20 It contains individual chapters on specific colonies, written by law librarians most familiar with the legal works in their locales. They will typically point the reader to important printed or archival collections as well as spell out lacuna and errors that exist for the unwary.
Most states, with centennial celebratory fervor, embarked upon publication programs in the 19th century to make available their colonial records, resulting in various series that collated public laws, gubernatorial messages or letters, and other government documents. Most of these collections (with the exceptions of Connecticut, Maryland, and North Carolina; see “Links to Digital Materials”) are not yet available online as part of their state archive’s ongoing digitization projects, but Google Books, HathiTrust, and the Internet Archive are gradually adding them to their collections. Even the 19th-century collectors did not comprehensively gather all colonial laws, for the texts of some were lost in America, while they may still be recovered in England. Copies of many colonial laws transmitted to the Board of Trade and Plantations, the Secretary of State, or the King’s Privy Council are still held at The National Archives in Kew, England (outside London). For a guide to exploring them (and unraveling the complexities involved in doing so) in a single colony’s context, see Charles Lesser’s South Carolina Begins, which explains how some South Carolina laws can no longer be found anywhere but in England.21
Colonial court decisions were, for a time, published by the American Historical Association as part of the American Legal Records series. Ten volumes appeared before the series stopped in 1984, ranging from Virginia’s and Rhode Island’s Court of Vice-Admiralty to the Court of Chancery in South Carolina. The volumes were exceptional in publishing the full text of existing court records in their entirety, typically preceded by an expert’s introduction.22 Other projects have occasionally made available valuable primary materials from courts, such as David Konig’s Plymouth Court Records, 1686–1859: The Records of the Inferior Court of Common Pleas and the General Sessions of the Peace, or Mattie Parker’s and William S. Price’s North Carolina Higher-Court Records.23 However, court decisions have been published far less often than the records of colonial legislatures. The journals of and laws passed by provincial assemblies have been published for virtually every colony, making it far easier to locate a law created than to see how it might have been applied in a courtroom setting.
The papers of practicing lawyers remain largely in manuscript form, retrievable only by visiting specific archives, with a few exceptions. The papers of Josiah Quincy, one of the first men to record colonial court decisions, have been published in a six-volume series edited by Daniel Coquillette and Neil York.24 John Adams’s legal papers have been published in three volumes, with careful and extensive annotations provided by L. Kinvin Wroth and Hiller Zobel (practitioners both).25 Currently in press are the papers of Robert Treat Paine, which to date have published four volumes under the skillful supervision of Stephen Riley and Edward Hanson.26 Out of date, partial publication of writings by John Dickinson will soon be replaced by the online John Dickinson Writings Project, curated by Jane Calvert.27
For copies of charters and constitutions, most can be found online via the Avalon Project, the Yale Law School collection of seminal documents in legal history.28 Only Pennsylvania has a website devoted to the various editions of its state’s constitution; the Duquesne University School of Law maintains a site that offers the opportunity to explore the many versions of that state’s constitution, with additional expert commentary.29 Key documents relating to the founding era of the United States as a country can be found online in two major collections at the National Archives and the Library of Congress. The Library of Congress maintains American Founders Online, which makes available the writings of George Washington, Benjamin Franklin, John Adams, Alexander Hamilton, Thomas Jefferson, and James Madison in searchable format.30 The Library of Congress offers the complete set of journals belonging to the Continental Congress and Confederation Congress, plus all the laws passed by those bodies, offering an unrivaled opportunity to explore how the lawmakers gradually moved thirteen colonies toward thinking about creating national laws.31
Links to Digital Materials
Allen, David G. In English Ways: The Movement of Societies and the Transferal of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century. Chapel Hill: University of North Carolina Press, 1981.Find this resource:
Billias, George, ed. Law and Authority in Colonial America: Selected Essays. Barre, ME: Barre Publishers, 1965.Find this resource:
Canady, Hoyt. Gentlemen of the Bar: Lawyers in Colonial South Carolina History. New York: Garland, 1987.Find this resource:
Chapin, Bradley. Criminal Justice in Colonial America, 1606–1660. Athens, GA: University of Georgia Press, 1983.Find this resource:
Dalton, Michael. The Countrey Justice. London: Societie of Stationers, 1618.Find this resource:
Dayton, Cornelia. Women Before the Bar: Gender, Law, and Society in Connecticut, 1639–1789. Chapel Hill: University of North Carolina Press, 1995.Find this resource:
Dayton, Cornelia, and Sharon Salinger, Warning Out: Robert Love’s Search for Strangers in Pre-Revolutionary Boston. Philadelphia: University of Pennsylvania Press, 2014.Find this resource:
Ditz, Toby. Property and Kinship: Inheritance in Early Connecticut, 1750–1820. Princeton, NJ: Princeton University Press, 1986.Find this resource:
Grossberg, Michael, and Christopher Tomlins, eds. Cambridge History of Law in America: Early America (1580–1815). Cambridge, UK: Cambridge University Press, 2008.Find this resource:
Hadden, Sally, and Alfred Brophy, eds. A Companion to American Legal History. Hoboken: Wiley-Blackwell, 2013.Find this resource:
Hull, N. E. H., and Peter C. Hoffer. Murdering Mothers: Infanticide in England and New England, 1558–1803. New York: New York University Press, 1981.Find this resource:
Katz, Stanley. “The Problem of a Colonial Legal History.” In Colonial British America: Essays in the New History of the Early Modern Era. Edited by Jack Greene and J. R. Pole, 457–489. Baltimore: Johns Hopkins University Press, 1984.Find this resource:
McManus, Edgar. Law and Liberty in Early New England: Criminal Justice and Due Process, 1620–1692. Amherst: University of Massachusetts Press, 1993.Find this resource:
Merwick, Donna. Death of a Notary: Conquest and Change in Colonial New York. Ithaca, NY: Cornell University Press, 1999.Find this resource:
Mirow, Matthew. “The Court of Common Pleas of East Florida, 1763–1783.” Tijdschrift voor Rechtsgeshiedenis 85 (2017): 540–576.Find this resource:
Mirow, Matthew. “Spanish Courts.” In Florida’s Other Courts: Unconventional Justice in the Sunshine State. Edited by Robert M. Jarvis, 9–27. Gainesville: University Press of Florida, 2018.Find this resource:
Morris, Thomas D. Southern Slavery and the Law, 1619–1860. Chapel Hill: University of North Carolina Press, 1996.Find this resource:
Nelson, William E. Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825. Chapel Hill: University of North Carolina Press, 1981.Find this resource:
Newell, Margaret. Brethren by Nature: New England Indians, Colonists, and the Origins of American Slavery. Ithaca, NY: Cornell University Press, 2015.Find this resource:
Offutt, William. Of “Good Laws” and “Good Men”: Law and Society in the Delaware Valley, 1680–1710. Urbana: University of Illinois Press, 1995.Find this resource:
Palmer, Vernon V. Through the Codes Darkly: Slave Law and Civil Law in Louisiana. New Jersey: The Lawbook Exchange, 2012.Find this resource:
Roeber, A. Gregg. Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810. Chapel Hill: University of North Carolina Press, 1981.Find this resource:
Rowe, G. S. Embattled Bench: The Pennsylvania Supreme Court and the Forging of a Democratic Society, 1684–1809. Newark: University of Delaware Press, 1994.Find this resource:
Salmon, Marylynn. Women and the Law of Property in Early America. Chapel Hill: University of North Carolina Press, 1989.Find this resource:
Smith, Joseph. Appeals to the Privy Council from the American Plantations. New York: Columbia University Press, 1950.Find this resource:
Tomlins, Christopher, and Bruce Mann, eds. The Many Legalities of Early America. Chapel Hill: University of North Carolina Press, 2001.Find this resource:
Ubbelohde, Carl. The Vice-Admiralty Courts and the American Revolution. Chapel Hill: University of North Carolina Press, 1960.Find this resource:
Wroth, L. Kinvin, and Hiller Zobel, eds. The Legal Papers of John Adams. 3 vols. Cambridge, MA: Belknap Press of Harvard University Press, 1965.Find this resource:
(1.) Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World, 1492–1640 (Cambridge, UK: Cambridge University Press, 1995).
(2.) E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York: Pantheon, 1975); and Douglas Hay, ed., Albion’s Fatal Tree: Crime and Society in Eighteenth Century England (London: A. Lane, 1975).
(3.) Margaret Newell, Brethren by Nature: New England Indians, Colonists, and the Origins of American Slavery (Ithaca, NY: Cornell University Press, 2015); and Alan Gallay, The Indian Slave Trade: The Rise of the English Empire in the American South, 1670–1717 (New Haven, CT: Yale University Press, 2002).
(6.) David Konig, Law and Society in Puritan Massachusetts, 1629–1692 (Chapel Hill: University of North Carolina Press, 1978); and William E. Nelson, Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825 (Chapel Hill: University of North Carolina Press, 1981).
(7.) Committee on Arbitration, Earliest Arbitration Records of the Chamber of Commerce of the State of New York, Founded in 1768: Committee Minutes, 1779–1792 (New York: Press of the Chamber, 1913).
(8.) Mary Bilder, “The Lost Lawyers: Early American Legal Literates and Transatlantic Legal Culture,” Yale Journal of Law and the Humanities 11 (1999): 47–117.
(10.) Edward Coke, The Institutes of the Lawes of England (London: Societe of Stationers, 1628–1644); and William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765–1769).
(11.) Daniel Coquillette, “Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758–1775,” in Law in Colonial Massachusetts 1630–1800: A Conference Held 6 and 7 November 1981, ed. Daniel Coquillette, Publications of the Colonial Society of Massachusetts 62 (Boston: The Colonial Society of Massachusetts, 1984).
(12.) Bernard Bailyn, The Ideological Origins of the American Revolution: Fiftieth Edition (Cambridge, MA: Belknap Press of Harvard University Press, 2017).
(13.) See, e.g., Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956), or Law and Economic Growth: A Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, MA: Harvard University Press, 1964).
(15.) Elizabeth Dale, “Reconsidering the Seventeenth Century: Legal History in the Americas,” in A Companion to American Legal History, ed. Sally Hadden and Alfred Brophy (Hoboken: Wiley-Blackwell, 2013), 7–25; and Sally Hadden, “What’s Done and Undone: American Legal History, 1700–1775,” in A Companion to American Legal History, ed. Sally Hadden and Alfred Brophy (Hoboken: Wiley-Blackwell, 2013), 26–45.
(16.) Ellen Holmes Pearson, “1775–1815,” in A Companion to American Legal History, ed. Sally Hadden and Alfred Brophy (Hoboken: Wiley-Blackwell, 2013), 46–67.
(19.) Matthew Mirow, “Spanish Courts,” in Florida’s Other Courts: Unconventional Justice in the Sunshine State, ed. Robert M. Jarvis (Gainesville: University Press of Florida, 2018), 9–27; and Matthew Mirow, “The Court of Common Pleas of East Florida, 1763–1783,” Tijdschrift voor Rechtsgeshiedenis 85 (2017): 540–576.
(20.) Michael Chiorazzi and Marguerite Most, eds., Pre-Statehood Legal Materials: A Fifty-State Research Guide, Including New York City and the District of Columbia (New York: Haworth, 2005).
(21.) Charles Lesser, South Carolina Begins: The Records of a Proprietary Colony, 1663–1721 (Columbia: South Carolina Department of Archives and History, 1995).
(22.) Titles in the series include: Carroll T. Bond with Richard B. Morris, eds., Proceedings of the Maryland Court of Appeals, 1695–1729 (Washington, DC: American Historical Association, 1933); Richard B. Morris, ed., Select Cases of the Mayor’s Court of New York City, 1674–1784 (Washington, DC: American Historical Association, 1935); Dorothy S. Towle, ed., Records of the Vice-Admiralty Court of Rhode Island, 1716–1752 (Washington, DC: American Historical Association, 1936); John T. Farrell, ed., The Superior Court Diary of William Samuel Johnson, 1772–1773: With Appropriate Records and File Papers of the Superior Court of the Colony of Connecticut for the Terms, December 1772, through March 1773 (Washington, DC: American Historical Association, 1942); H. Clay Reed, ed., The Burlington Court Book: A Record of Quaker Jurisprudence in West New Jersey, 1680–1709 (Washington, DC: American Historical Association, 1944); Anne King Gregorie, ed., Records of the Court of Chancery in South Carolina, 1671–1779 (Washington, DC: American Historical Association, 1950); Susie M. Ames, ed., County Court Records of Accomack-Northampton, Virginia, 1632–1640 (Washington, DC: American Historical Association, 1954); Leon deValinger Jr., ed., Court Records of Kent County, Delaware, 1680–1705 (Washington, DC: American Historical Association, 1959); Joseph H. Smith and Philip A. Crowl, eds., Court Records of Prince Georges County, Maryland, 1696–1699 (Washington, DC: American Historical Association, 1964); and Peter C. Hoffer and William B. Scott, eds., Criminal Proceedings in Colonial Virginia: (Records of) Fines, Examination of Criminals, Trials of Slaves, etc. from March 1710 (1711) to (1754), (Richmond County, Virginia) (Washington, DC: American Historical Association, 1984).
(23.) David Konig, Plymouth Court Records, 1686–1859: The Records of the Inferior Court of Common Pleas and the General Sessions of the Peace (Wilmington, DE: M. Glazier, 1978–1981); Mattie Parker, ed., North Carolina Higher-Court Records, vols. 1–2 (Raleigh: North Carolina State University Print Shop, 1968–1971); and William S. Price, ed., North Carolina Higher-Court Records, vols. 3–4 (Raleigh: North Carolina State University Print Shop, 1974).
(24.) Daniel Coquilette and Neil York, eds., Portrait of a Patriot: The Major Political and Legal Writings of Josiah Quincy Junior, 6 vols. (Boston: Colonial Society of Massachusetts, 2005–2014).
(26.) Stephen Riley and Edward Hanson, eds., The Papers of Robert Treat Paine, 4 vols. to date (Boston: Massachusetts Historical Society, 1992–).