Alison L. LaCroix
Federalism refers to the constitutional and political structure of the United States of America, according to which political power is divided among multiple levels of government: the national level of government (also referred to as the “federal” or “general” government) and that of the states. It is a multilayered system of government that reserves some powers to component entities while also establishing an overarching level of government with a specified domain of authority. The structures of federalism are set forth in the Constitution of the United States, although some related ideas and practices predated the founding period and others have developed since. The balance between federal and state power has shifted throughout U.S. history, with assertions of broad national power meeting challenges from supporters of states’ rights and state sovereignty. Federalism is a fundamental value of the American political system, and it has been a controversial political and legal question since the founding period.
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.
Mark G. Hanna
Historians of colonial British North America have largely relegated piracy to the marginalia of the broad historical narrative from settlement to revolution. However, piracy and unregulated privateering played a pivotal role in the development of every English community along the eastern seaboard from the Carolinas to New England. Although many pirates originated in the British North American colonies and represented a diverse social spectrum, they were not supported and protected in these port communities by some underclass or proto-proletariat but by the highest echelons of colonial society, especially by colonial governors, merchants, and even ministers.
Sea marauding in its multiple forms helped shape the economic, legal, political, religious, and cultural worlds of colonial America. The illicit market that brought longed-for bullion, slaves, and luxury goods integrated British North American communities with the Caribbean, West Africa, and the Pacific and Indian Oceans throughout the 17th century. Attempts to curb the support of sea marauding at the turn of the 18th century exposed sometimes violent divisions between local merchant interests and royal officials currying favor back in England, leading to debates over the protection of English liberties across the Atlantic. When the North American colonies finally closed their ports to English pirates during the years following the Treaty of Utrecht (1713), it sparked a brief yet dramatic turn of events where English marauders preyed upon the shipping belonging to their former “nests.” During the 18th century, colonial communities began to actively support a more regulated form of privateering against agreed upon enemies that would become a hallmark of patriot maritime warfare during the American Revolution.
Steven K. Green
Separation of church and state has long been viewed as a cornerstone of American democracy. At the same time, the concept has remained highly controversial in the popular culture and law. Much of the debate over the application and meaning of the phrase focuses on its historical antecedents. This article briefly examines the historical origins of the concept and its subsequent evolutions in the nineteenth century.