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.
Courts and legislatures in colonial America and the early American republic developed and refined a power to compel civilians to assist peace and law enforcement officers in arresting wrongdoers, keeping the peace, and other matters of law enforcement. This power to command civilian cooperation was known as the posse comitatus or “power of the county.” Rooted in early modern English countryside law enforcement, the posse comitatus became an important police institution in 18th- and 19th-century America. The posse comitatus was typically composed of able-bodied white male civilians who were temporarily deputized to aid a sheriff or constable. But if this “power of the county” was insufficient, law enforcement officers were often authorized to call on the military to serve as the posse comitatus.
The posse comitatus proved particularly important in buttressing slavery in the American South. Slaveholders pushed for and especially benefited from laws that required citizens to assist in the recapture of local runaway slaves and fugitive slaves who crossed into states without slavery. Though slave patrols were rooted in the posse comitatus, the posse comitatus originated as a compulsory and noncompensated institution. Slaveholders in the American South later added financial incentives for those who acted in the place of a posse to recapture slaves on the run from their owners.
The widespread use of the posse comitatus in southern slave law became part of the national discussion about slavery during the early American republic as national lawmakers contemplated how to deal with the problem of fugitive slaves who fled to free states. This dialogue culminated with the Fugitive Slave Law of 1850, in which the US Congress authorized officials to “summon and call to their aid the bystanders, or posse comitatus” and declared that “all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required.” During Reconstruction, the Radical Republican Congress used the posse comitatus to enforce laws that targeted conquered Confederates. After the end of Reconstruction in 1877, Southern states pushed Congress to create what would come to be known as the “Posse Comitatus Act,” which prohibited the use of federal military forces for law enforcement. The history of the posse comitatus in early America is thus best understood as a story about and an example of the centralization of government authority and its ramifications.
Terri L. Snyder
Everywhere across European and Indigenous settlements in 17th- and 18th-century North America and the Caribbean, the law or legal practices shaped women’s status and conditioned their dependency, regardless of race, age, marital status, or place of birth. Historians have focused much of their attention on the legal status, powers, and experiences of women of European origin across the colonies and given great consideration to the law of domestic relations, the legal disabilities of coverture, and women’s experiences as plaintiffs and defendants, both civil and criminal, in colonial courts. Early American legalities, however, differed markedly for women of color—whether free, indentured, or enslaved, and whether Native or African in origin or descent—whose relationships to the legal regimes of early America were manifold and complex. In their status under the law, experiences at the bar, and, as a result, positions in household polities, women of color reckoned with a set of legalities that differed from those of their European counterparts. The diversity of women’s experiences of the law was shaped not only by race but also by region: Indigenous people had what one historian has labeled jurispractices, while Europeans brought and created a jurisprudence of race and status that shaped treatments of women of color across imperial spaces. A widely comparative analysis of women and the law reflects ways in which race shaped women’s status under and experiences of the law as well as the legalities of their marriages in pre-Revolutionary America.