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the cambridge history of law in america
volume i
Early America (1580每1815)
Law stands at the center of modern American life. Since the 1950s, American historians
have produced an extraordinarily rich and diverse literature that has vastly
expanded our knowledge of this familiar and vital yet complex and multifaceted
phenomenon. But few attempts have been made to take full account of law*s American
history. The Cambridge History of Law in America has been designed for just
this purpose. In three volumes we put on display all the intellectual vitality and
variety of contemporary American legal history.We present as comprehensive and
authoritative an account as possible of the present understanding and range of
interpretation of the history of American law. We suggest where future research
may lead.
American legal history has long treated the era of the founding of the republic
and the early nineteenth century as its proper point of departure. Volume I of this
History disputes that tendency, beginning our account of law in America with the
very first moments of English colonization and settlement of the North American
landmass. It follows those processes across 200 years to the eventual creation
and stabilization of the American republic. Colonization, the fate of the seaboard*s
indigenous peoples, the creation of structures of jurisdiction and governance, patterns
of imperial communication, the migration (voluntary and involuntary) of
peoples and the disciplines to which they were subject, the construction of essential
social categories and institutions (families, labor forces, plantations, slavery),
economic and commercial activity, religion, the strains and ruptures of empire,
revolutionary and constitutional politics: these are the material and imaginative
worlds of early American law. All this is encompassed in our first volume.
The Cambridge History of Law in America has been made possible by the generous
support of the American Bar Foundation. Volumes II and III cover the history of
law, respectively, from the foundation of the republic until the immediate aftermath
of WorldWar I and from the 1920s until the early twenty-first century.
Michael Grossberg is the Sally M. Reahard Professor of History and a Professor of
Law at Indiana University. His research focuses on the relationship between law
and social change, particularly the intersection of law and the family.
Christopher Tomlins is Senior Research Fellow at the American Bar Foundation
in Chicago. His research encompasses the relationship among labor, colonization,
and law in early America; the conceptual history of police in Anglo-American law
and politics; and the place of historical materialism in legal theory.
Cambridge Histories Online © Cambridge University Press, 2008
Cambridge Histories Online © Cambridge University Press, 2008
the cambridge history
of law in america
volume i
Early America (1580 每1815)
Edited by
MICHAEL GROSSBERG
Indiana University
CHRISTOPHER TOMLINS
The American Bar Foundation, Chicago
Cambridge Histories Online © Cambridge University Press, 2008
cambridge university press
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, S˜ao Paulo, Delhi
Cambridge University Press
32 Avenue of the Americas, New York, ny 10013-2473, usa
www.cambridge.org
Information on this title: www.cambridge.org/9780521803052
c Cambridge University Press 2008
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.
First published 2008
Printed in the United States of America
A catalog record for this publication is available from the British Library.
Library of Congress Cataloging in Publication Data
The Cambridge history of law in America / edited by Michael Grossberg,
Christopher Tomlins.
p. cm.
Includes bibliographical references and index.
isbn 978-0-521-80305-2 (hardback)
1. Law 每 United States 每 History. I. Grossberg, Michael, 1950每 II. Tomlins,
Christopher L., 1951每 III. Title.
kf352.c36 2007
349.73 每 dc22 2007017606
isbn 978-0-521-80305-2 hardback
Cambridge University Press has no responsibility for
the persistence or accuracy of urls for external or
third-party Internet Web sites referred to in this publication
and does not guarantee that any content on such
Web sites is, or will remain, accurate or appropriate.
Cambridge Histories Online © Cambridge University Press, 2008
contents
Editors* Preface page vii
1 Law, Colonization, Legitimation, and the European
Background 1
anthony pagden
2 The Law of Native Americans, to 1815 32
katherine a. hermes
3 English Settlement and Local Governance 63
mary sarah bilder
4 Legal Communications and Imperial Governance: British
North America and Spanish America Compared 104
richard j. ross
5 Regionalism in Early American Law 144
david thomas konig
6 Penality and the Colonial Project: Crime, Punishment, and
the Regulation of Morals in Early America 178
michael meranze
7 Law, Population, Labor 211
christopher tomlins
8 The Fragmented Laws of Slavery in the Colonial and
Revolutionary Eras 253
sally e. hadden
9 The Transformation of Domestic Law 288
holly brewer
10 Law and Religion in Colonial America 324
mark mcgarvie and elizabeth mensch
11 The Transformation of Law and Economy in Early America 365
bruce h. mann
v
Cambridge Histories Online © Cambridge University Press, 2008
vi Contents
12 Law and Commerce, 1580每1815 400
claire priest
13 Law and the Origins of the American Revolution 447
jack p. greene
14 Confederation and Constitution 482
jack n. rakove
15 The Consolidation of the Early Federal System, 1791每1812 518
saul cornell and gerald leonard
16 Magistrates, Common Law Lawyers, Legislators: The Three
Legal Systems of British America 555
james a. henretta
Bibliographic Essays 593
Notes on Contributors 695
Index 697
Cambridge Histories Online © Cambridge University Press, 2008
editors* preface
In February 1776, declaiming against the oppressive and absolute rule of
※the Royal Brute of Britain,§ the revolutionary pamphleteer Tom Paine
announced to the world that ※so far as we approve of monarchy . . . in
America the law is king§! Paine*s declaration of Americans* ※common
sense§ of the matter turned out to be an accurate forecast of the authority
the legal order would amass in the revolutionary republic. Indeed, Paine*s
own fiery call to action was one of the stimuli that would help his prediction
come true. We know ourselves that what he claimed for law then
mostly remains true now. Yet, we should note, Paine*s claim was not simply
prophecy; it made sense in good part because of foundations already laid.
Long before 1776, law and legal institutions had gained a place of some
prominence in the British American colonies. The power and position of
law, in other words, are apparent throughout American history, from its
earliest moments. The three volumes of The Cambridge History of Law in
America explain why Paine*s synoptic insight should be understood as both
an eloquent foretelling of what would be and an accurate summation of what
already was.
The Cambridge History of Law in America belongs to a long and proud
scholarly tradition. In March 1896, at the instigation of FrederickWilliam
Maitland, Downing Professor of the Laws of England at Cambridge University,
and of Henry Jackson, tutor in Greek at Trinity College, the syndics
of Cambridge University Press invited the University*s Regius Professor
of Modern History, Lord John Dalberg Acton, to undertake ※the general
direction of a History of theWorld.§ Six months later Acton returned with
a plan for a (somewhat) more restrained endeavor, an account of Europe and
the United States from The Renaissance to The Latest Age. Thus was born The
Cambridge Modern History.
Acton*s plan described a collaborative, collectively written multivolume
history. Under general editorial guidance, each volume would be
divided among ※specially qualified writers§ primed to present extensive and
vii
Cambridge Histories Online © Cambridge University Press, 2008
viii Editors* Preface
authoritative accounts of their subjects.1 They were to imagine themselves
writing less for other professional historians than for a more general audience
of ※students of history§ 每 anyone, that is, who sought an authoritative,
thoughtful, and sophisticated assessment of a particular historical subject or
issue. Acton envisioned a history largely clean of the professional apparatus
of reference and citation 每 texts that would demonstrate the ※highest pitch
of knowledge without the display,§ reliant for their authority on the expertise
of the authors chosen to write them. And although it was intended that
the History be the most complete general statement of historical knowledge
available, and to that extent definitive, Acton was not interested in simply
reproducing (and thus by implication freezing) what was known. He desired
that his authors approach the task critically, strive for originality in their
research, and take it on themselves to revise and improve the knowledge
they encountered.2
Acton did not live to see even the first volume in print, but between
1902 and 1911 The Cambridge Modern History appeared in twelve substantial
volumes under the editorial direction of Adolphus Ward and Stanley
Leathes. The History quickly found a broad audience 每 the first volume, The
Renaissance, sold out in a month. Other Cambridge histories soon followed:
The Cambridge History of English Literature, which began to appear under
Ward*s editorship in 1907; The Cambridge Medieval History (1911每36); The
Cambridge History of American Literature (1917每21); The Cambridge Ancient
History (1923每39); The Cambridge History of the British Empire (1929每67);
The Cambridge History of India (1922每60), and more. All told, close to a
hundred Cambridge histories have been published. More than fifty are currently
in print. Cambridge histories have justly become famous. They are
to be found in the collections of libraries and individuals throughout the
world.
Acton*s plan for The Cambridge Modern History invoked certain essentials 每
an ideal of collective authorship and a commitment to make expertise accessible
to a wider audience than simply other specialists. To these he added
grander, programmatic touches. The History would be ※an epic,§ a ※great
argument§ conveying ※forward progress . . . upward growth.§ And it would
provide ※chart and compass for the coming century.§ Such ambitions are
1 When, early on, Acton ran into difficulties in recruiting authors for his intimidating
project, Maitland gently suggested that ※his omniscient lordship§ simply write the whole
thing himself. Acton (we note with some relief) demurred. There is humor here, but also
principle. Collective authorship is a practice ingrained in the Cambridge histories from
the beginning.
2 Our account of Acton*s plan and its realization gratefully relies throughout on Josef
L. Altholz, ※Lord Acton and the Plan of the Cambridge Modern History,§ The Historical
Journal, 39, no. 3 (September 1996), 723每36.
Cambridge Histories Online © Cambridge University Press, 2008
Editors* Preface ix
characteristic of Acton*s moment 每 the later nineteenth century 每 when in
Britain and Continental Europe history still claimed an educative mantle
※of practical utility,§ the means rather than science (or law) to equip both
elites and ordinary citizens ※to deal with the problems of their time.§ It
was a moment, also, when history*s practitioners could still imagine filling
historical time with a consistent, standardized account 每 the product, to be
sure, of many minds, but minds that thought enough alike to agree on an
essential common purpose: ※men acting together for no other object than
the increase of accurate knowledge.§ Here was history (accurate knowledge)
as ※the teacher and the guide that regulates public life,§ the means by which
※the recent past§ would yield up ※the key to present time.§ Here as well,
lest we too quickly dismiss the vision as na“ıve or worse, was the shouldering
of a certain responsibility. ※We have to describe the ruling currents, to
interpret the sovereign forces, that still govern and divide the world. There
are, I suppose, at least a score of them, in politics, economics, philosophy
and religion. . . . But if we carry history down to the last syllable of recorded
time, and leave the reader at the point where study passes into action, we
must explain to him the cause, and the growth, and the power of every great
intellectual movement, and equip him for many encounters of life.§
Acton*s model 每 a standard general history, a guiding light produced
by and for an intellectually confident elite 每 could not survive the shattering
effects of two world wars. It could not survive the democratization of
higher education, the proliferation of historical scholarship, the constant
emergence of new fields and subdisciplines, the eventual decentering of
Europe and ※the West.§ When, amid the rubble and rationing of a hastily
de-colonizing post每World War II Britain, Cambridge University Press*s
syndics decided a revised version was required 每 a New Cambridge Modern
History for a new day 每 their decision acknowledged how much the world
had changed. The revised version bore them out. Gone was Acton*s deep
faith in history*s authority and grandeur. The general editor, G. N. Clark,
wrote, ※Historians in our self-critical age are aware that there will not
be general agreement with their conclusions, nor even with some of the
premises which they regard as self-evident. They must be content to set out
their own thought without reserve and to respect the differences which they
cannot eradicate§ 每 including, he might have added (but perhaps there was
no need) the many fundamental differences that existed among historians
themselves. Cambridge histories no longer aspired to create standardized
accounts of the way things had been nor to use the past to pick the lock on
the future. The differences in perspective and purpose that a less confident,
more self-critical age had spawned were now the larger part of the picture.
Yet the genre Acton helped found has now entered its second century. It
still bears, in some fashion, his imprint. The reason it has survived, indeed
Cambridge Histories Online © Cambridge University Press, 2008
x Editors* Preface
prospered, has less to do with some sense of overall common purpose than
the more modest but nevertheless essential precept of continued adherence
to certain core principles of design simply because they have worked: individual
scholars charged to synthesize the broad sweep of current knowledge
of a particular topic, but also free to present an original interpretation aimed
at encouraging both reflection and further scholarship, and an overall architecture
that encourages new understandings of an entire subject or area of
historical scholarship. Neither encyclopedias nor compilations, textbooks
nor works of reference, Cambridge histories have become something quite
unique 每 each an avowedly collective endeavor that offers the single best
point of entry to the wide range of an historical subject, topic, or field;
each in overall conceptual design and substance intent not simply on defining
its field*s development to date but on pushing it forward with new
ideas. Critique and originality, revision and improvement of knowledge 每
all remain germane.
Readers will find that The Cambridge History of Law in America adheres to
these core goals. Of course, like other editors we have our own particular
ambitions. And so the three volumes of this Cambridge history have been
designed to present to full advantage the intellectual vitality and variety of
contemporary American legal history. Necessarily then 每 and inevitably 每
The Cambridge History of Law in America dwells on areas of concern and interpretive
debates that preoccupy the current generation of legal historians.
We do not ignore our predecessors.3 Nor, however, do we attempt in the
body of the History to chart the development of the field over their time and
ours in any great detail. Readers will find a more substantial accounting of
that development in the bibliographic essays that accompany each chapter,
but as editors we have conceived our job to be to facilitate the presentation
of as comprehensive and authoritative a rendition of the present understanding
of the history of American law as possible and to suggest where
future research may lead.
Cambridge histories always define their audiences widely; ours is no
exception. One part of our intended audience is scholarly, but hardly confined
to other legal historians; they are already the best equipped to know
something of what is retailed here. So to an important extent we try to look
past legal historians to historians at large. We also look beyond history to
scholars across the broad sweep of law, the humanities, and the social sciences
每 indeed to any scholar who may find a turn to law*s history useful (or
simply diverting) in answering questions about law and society in America.
3 See, for example, the graceful retrieval and reexamination of themes from the ※imperial
school§ of American colonial historians undertaken by Mary Sarah Bilder in Volume I,
Chapter 3.
Cambridge Histories Online © Cambridge University Press, 2008
Editors* Preface xi
A second part of our audience is the legal profession. Lawyers and judges
experience in their professional lives something of a practical encounter
with the past, although the encounter may not be one they would recognize
as ※historical.§ As John Reid has written, ※The lawyer and the historian have
in common the fact that they go to the past for evidence, but there the similarity
largely ends.§ Here lawyers and judges can discover for themselves
what historians do with evidence. In the process, they will also discover
that not inconsiderable attention has been paid to their own lives and experiences.
Legal historians have always known how important legal thought
and legal education are in the formation of the professional world of the law,
and both feature prominently in this History. Here the profession encounters
the history of its activities and of the medium it inhabits from a standpoint
outside itself.
The third segment of our intended audience is the general public. Our
purposes in this encounter are not Acton*s.We do not present this History as
the means to educate a citizenry to deal with the problems of the moment.
(Indeed, it is worth noting that in America law appropriated that role to
itself from the earliest days of the republic.) Like G. N. Clark, today*s
historians live in self-critical times and have lower expectations than Lord
Acton of what historical practice might achieve. That said, readers will find
that this History touches on many past attempts to use law to ※deal with§
many past problems: in the America where law is king, it has been law*s fate
to be so employed. And if their accounts leave some of our authors critical
in their analysis of outcomes or simply rueful in recounting the hubris (or
worse) of the attempts, that in itself can be counted an education of sorts.
Moreover, as Volume III*s chapters show repeatedly, Americans continue
to turn to law as their key medium of private problem solving and public
policy formation and implementation, and on an expanding 每 global 每
stage. In that light, there is perhaps something for us to learn from Acton*s
acknowledgment that the scholar-expert should not abandon the reader ※at
the point where study passes into action.§ We can at the very least offer
some reflection on what an encounter with the past might bring by way of
advice to the ※many encounters of life§ lying ahead.
In reaching all three of our intended audiences, we are greatly assisted
by the pronounced tendency to ※demystify§ and diversify its subject that
has characterized American legal history for a half-century. To some, the
field*s very title 每 ※legal history§ 每 will conjure merely an arcane preoccupation
with obscure terminologies and baffling texts, the doctrines and
practices of old (hence defunct) law, of no obvious utility to the outsider
whether historian or social scientist or practicing lawyer or just plain citizen.
No doubt, legal history has at times given grounds to suppose that such
a view of the discipline is generally warranted. But what is interesting
Cambridge Histories Online © Cambridge University Press, 2008
xii Editors* Preface
in American legal history as currently practiced is just how inappropriate
that characterization seems.
To read the encomia that have accumulated over the years, one might
suppose that the demise of legal history*s obscurity was the single-handed
achievement of one man, JamesWillard Hurst, who on his death in 1997 was
described in the New York Times as ※the dean of American legal historians.§
Indeed, Hurst himself occasionally suggested the same thing; it was he who
came up with the aphorism ※snakes in Ireland§ to describe legal history in
America at the time he began working in the field in the 1930s. Though not
an immodest man, it seems clear whom he cast as St. Patrick. Yet the Times*
description was merited. Hurst*s lifework 每 the unpacking of the changing
roles of American law, market, and state from the early nineteenth to the
early twentieth centuries 每 set the agenda of American legal historians
from the 1950s well into the 1980s. That agenda was a liberation from
narrower and more formalistic preoccupations, largely with the remote
origins of contemporary legal doctrine or with the foundations of American
constitutionalism, that had characterized the field, such as it was, earlier
in the century. Most important, Hurst*s work displayed some recognition
of the multidimensionality of law in society 每 as instrument, the hallmark
with which he is most associated, but also as value and as power. Hurst,
in short, brought legal history into a continuing dialogue with modernity,
capitalism, and the liberal state, a dialogue whose rich dividends are obvious
in this History.
Lawyers have sometimes asked aggressively anachronistic questions of
history, like 每 to use an apocryphal example of Robert Gordon*s 每 ※Did the
framers of the Constitution confer on the federal government the power
to construct an interstate highway system?§ Hurstian legal history did not
indulge such questions. But Hurstians did demonstrate a gentler anachronism
in their restriction of the scope of the subject and their interpretation
of it. Famously, for Hurst, American legal history did not begin until the
nineteenth century. And when it did begin it showed a certain consistency
in cause and effect. As Kermit Hall summarized the view in 1989, ※Our
legal history reflects back to us generations of pragmatic decision making
rather than a quest for ideological purity and consistency. Personal
and group interests have always ordered the course of legal development;
instrumentalism has been the way of the law.§4 The Hurstian determination
to demystify law occasionally reduced it to transparency 每 a dependent
variable of society and economy (particularly economy) tied functionally to
social and economic change.
4 Kermit L. Hall, The Magic Mirror: Law in American History (New York, 1989), 335.
Cambridge Histories Online © Cambridge University Press, 2008
Editors* Preface xiii
As a paradigm for the field, Hurstian legal history long since surrendered
its dominance. What has replaced it? In two words, astonishing variety.
Legal historians are aware that one cannot talk or write about economic
or social or political or intellectual history, or indeed much of any kind of
history, without immediately entering into realms of definition, prohibition,
understanding, practice, and behavior that must imply law to have
meaning. Try talking about property in any of those contexts, for example,
without implying law. Today*s legal historians are deeply engaged across
the full range of historical investigation in demonstrating the inextricable
salience of law in human affairs. As important, the interests of American
historians at large have never been more overtly legal in their implications
than now. To take just four popular areas of inquiry in American history 每
citizenship and civic personality, identity, spatiality, and the etiology of
social hierarchy and subordination 每 it is simply impossible to imagine
how one could approach any of these areas historically without engaging
with law, legal ideology, legal institutions, legal practices, and legal discourse.
Legal historians have been and remain deeply engaged with and
influenced by social history, and as that field has drifted closer and closer to
cultural history and the historical construction of identity so legal history
has moved with it. The interpretive salience of race and ethnicity, of gender
and class is as strong in contemporary legal historical practice as in any
other realm of history. Add to that the growing influence of legal pluralism
in legal history 每 the migration of the field from a focus on ※the law§ to
a focus on the conditions of existence of ※legality§ and the competition of
many alternative ※legalities§ 每 and one finds oneself at work in a field of
immense opportunity and few dogmas.
※Astonishing variety§ demonstrates vitality, but also suggests the benefits
of a judicious collective effort at authoritative summation. The field
has developed at an extraordinary rate since the early 1970s, but offers no
work that could claim to approach the full range of our understanding of the
American legal past.5 The Cambridge History of Law in America addresses both
5 The field has two valuable single-author surveys: Lawrence M. Friedman*s A History of
American Law (New York, 1973; 3rd ed. 2005) and Kermit Hall*s The Magic Mirror.
Neither approaches the range of what is on display here. The field also boasts volumes
of cases and commentary, prepared according to the law teaching ※case book§ model,
such as Stephen B. Presser and Jamil S. Zainaldin, Law and Jurisprudence in American
History: Cases and Materials (St. Paul, MN, 1980; 6th ed. 2006) and Kermit Hall, et al.,
American Legal History, Cases and Materials (New York, 3rd ed., 2003). There also exist
edited volumes of commentary and materials that focus on broad subject areas within
the discipline of legal history; a preponderance deal with constitutional law, such as
Lawrence M. Friedman and Harry N. Scheiber, eds., American Law and the Constitutional
Order: Historical Perspectives (Cambridge, MA, 1978; enlarged ed. 1988). Valuable in
Cambridge Histories Online © Cambridge University Press, 2008
xiv Editors* Preface
the vitality of variety and its organizational challenge. Individually, each
chapter in each volume is a comprehensive interrogation of a key issue in a
particular period of American legal history. Each is intended to extend the
substantive and interpretative boundaries of our knowledge of that issue.
The topics they broach range widely 每 from the design of British colonizing
to the design of the successor republic and of its successive nineteenthand
twentieth-century reincarnations; from legal communications within
empires to communications among nation-states within international law
to a sociology of the ※legalization§ that enwraps contemporary globalism;
from changes in legal doctrine to litigation trend assessments; from clashes
over law and religion to the intersection of law and popular culture; from
the movement of peoples to the production of subalternship among people
(the indigenous, slaves, dependents of all kinds); and from the discourse
of law to the discourse of rights. Chapters also deal with developments
in specific areas of law and of the legal system 每 crime and criminal justice,
economic and commercial regulation, immigration and citizenship,
technology and environment, military law, family law, welfare law, public
health and medicine, and antitrust.6
Individual chapters illustrate the dynamism and immense breadth of
American legal history. Collectively, they neither exhaust its substance nor
impose a new interpretive regimen on the field. Quite the contrary, The
Cambridge History of Law in America intentionally calls forth the broad array
of methods and arguments that legal historians have developed. The contents
of each volume demonstrate not just that expansion of subject and
method is common to every period of American legal history but also that
as the long-ascendant socio-legal perspective has given way to an increasing
diversity of analytical approaches, new interpretive opportunities are rife
everywhere. Note the influence of regionalism in Volume I and of institutionalism
in Volume II. Note the attention paid in Volume III not only to
race and gender but also to sexuality. The History shows how legal history
their own right, such volumes are intended as specific-purpose teaching tools and do not
purport to be comprehensive. Finally, there are, of course, particular monographic works
that have proven widely influential for their conceptual acuity, or their capacity to set
a completely new tone in the way the field at large is interpreted. The most influential
have been such studies as James Willard Hurst, Law and the Conditions of Freedom in
the Nineteenth-Century United States (Madison, WI, 1956), and Morton J. Horwitz, The
Transformation of American Law, 1780每1860 (Cambridge, MA, 1977).
6 Following the tradition of Cambridge histories, each chapter includes only such footnotes
as the author deems necessary to document essential (largely primary) sources. In place
of the dense display of citations beloved of scholarly discourse that Acton*s aesthetic
discouraged, each author has written a bibliographic essay that provides a summary of
his or her sources and a guide to scholarly work on the subject.
Cambridge Histories Online © Cambridge University Press, 2008
Editors* Preface xv
has entered dialogue with the full array of ※histories§ pursued within the
academy 每 political, intellectual, social, cultural, economic, business, diplomatic,
and military 每 and with their techniques.
The Cambridge History of Law in America is more than the sum of its
parts. The History*s conceptual design challenges existing understandings
of the field.We divide the American legal past into three distinct eras and
devote a complete volume to each one: first Early America, then The Long
Nineteenth Century, and last The Twentieth Century and After. The first volume,
Early America, examines the era from the late sixteenth century through the
early nineteenth 每 from the beginnings of European settlement through the
creation and stabilization of the American republic. The second volume,
The Long Nineteenth Century, begins with the appearance of the United States
in the constituted form of a nation-state in 1789; it ends in 1920, in the
immediate aftermath of World War I, with the world poised on the edge
of the ※American Century.§ The final volume, The Twentieth Century and
After, concentrates on that American century both at home and abroad
and peers into the murk of the twenty-first century. Within each of these
broad chronological divisions occurs a much more detailed subdivision
that combines an appreciation of chronology with the necessities of topical
specialization.
Where appropriate, topics are revisited in successive volumes (crime and
criminal justice, domestic relations law, legal thought, and legal education
are all examples). Discussion of economic growth and change is ubiquitous,
but we accord it no determinative priority. To facilitate comparisons and
contrasts within and between eras, sequences of subjects have been arranged
in similar order in each volume. Specific topics have been chosen with an eye
to their historical significance and their social, institutional, and cultural
coherence. They cannot be walled off from each other, so readers will notice
substantive overlaps when more than one author fastens on the same issues,
often to create distinct interpretations of them. History long since ceased to
speak with one voice. In this History, readers are invited into a conversation.
Readers will notice that our chronology creates overlaps at the margins
of each era. They will also notice that some chapters focus on only particular
decades within a specific era7 or span more than one era.8 All this is
7 Chronologically specific topics 每 the American Revolution and the creation of the republic
in Volume I, the Civil War in Volume II, the New Deal era in Volume III 每 are treated
as such. Chapters on the legal profession in Volumes II and III divide its development at
the CivilWar, as do those, in Volume II, on the state and on industrial organization.
8Volume II*s chapter on the military deals with both the nineteenth and twentieth centuries,
as do Volume III*s chapters on agriculture and the state and on law and the
environment. The latter chapter, indeed, also gestures toward the colonial period.
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xvi Editors* Preface
intentional. Historians construct history by placing subjects in relation to
each other within the continuum of historical time. Historians manipulate
time by creating periods to organize the placement of subjects. Thus, when
historians say that a subject has been ※historicized,§ they mean it has been
located in what they consider its appropriate historical-temporal context or
period. Slicing and dicing time in this fashion is crucial to the historian*s
objective of rendering past action coherent and comprehensible, but necessarily
it has a certain arbitrariness. No matter how familiar 每 the colonial
period, the Gilded Age, the Progressive period, and so forth 每 no historical
period is a natural division: all are constructs. Hence we construct three
※eras§ in the interests of organizational coherence, but our overlaps and the
distinct chronologies chosen by certain of our authors allow us to recognize
different temporalities at work.
That said, the tripartite division of these volumes is intended to provide
a new overall conceptual schema for American legal history, one that is
broad and accommodating but that locates legal history in the contours of
American history at large. Maitland never forgot that, at bottom, just as
religious history is history not theology, legal history is history not law.
Notwithstanding law*s normative and prescriptive authority in ※our§ culture,
it is a phenomenon for historical inquiry, not the source of an agenda.
And so we take our cue, broadly, from American history. If it is anything,
American history is the history of the colonization and settlement of the
North American mainland, it is the history of the creation and expansion
of an American nation-state, and it is the history of that state*s place in
and influence on the world at large. The contents and the organization of
The Cambridge History of Law in America speak to how law became king
in this America and of the multitudinous empire of people and possibilities
over which that king reigned. Thus we address ourselves to the endless
ramifications, across more than four centuries, of the meaning of Tom
Paine*s exclamation in 1776.
The Cambridge History of Law in America could not have been produced
without the support and commitment of the American Bar Foundation,
Cambridge University Press, and our cadre of authors.We thank them all.
The American Bar Foundation housed the project and, together with the
Press, funded it. The Foundation was there at the creation: it helped initiate
the project by sponsoring a two-day meeting of an ad hoc editorial consulting
group in January 2000. Members of that group (Laura Edwards, Tony
Freyer, Robert Gordon, Bruce H. Mann, William Novak, Stephen Siegel,
Barbara Young Welke, and Victoria Saker Woeste) patiently debated the
editors* initial thoughts on the conceptual and intellectual direction that the
History should follow and helped identify potential contributors. Since then,
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Editors* Preface xvii
the project has benefited from the support of two ABF directors, Bryant
Garth and his successor Robert Nelson, and the sustained and enthusiastic
interest of the Foundation*s Board of Directors during the tenure of
four Board presidents: Jacqueline Allee, M. Peter Moser, the late Robert
Hetlage, and David Tang.We owe a particular debt of gratitude to Robert
MacCrate for his early support and encouragement. As all this suggests, the
American Bar Foundation*s role in the production of The Cambridge History
of Law in America has been of decisive importance. The part the Foundation
has played underlines its standing as the preeminent research center for
the study of law and society in the United States and its long tradition of
support for the development of American legal history.
Cambridge University Press has, of course, been central to the project
throughout. We are grateful to the syndics for their encouragement and
to Frank Smith and his staff in New York for their assistance and support.
Frank first suggested the project in 1996. He continued to suggest it for
three years until we finally succumbed. During the years the History has been
in development, Frank has accumulated one responsibility after another at
the Press. Once we rubbed shoulders with the Executive Editor for Social
Sciences. Now we address our pleas to the Editorial Director for Academic
Books. But Frank will always be a history editor at heart, and he has maintained
a strong interest in this History, always available with sage advice
as the project rolled relentlessly onward. He helped the editors understand
the intellectual ambitions of a Cambridge history. Those who have had the
privilege of working with Frank Smith will know how important his advice
and friendship have been to us throughout.
Finally, the editors want to thank the authors of the chapters in these
volumes. A project like this is not to every author*s taste 每 some took
to it more easily than others. But together the sixty authors who joined
us to write the History have done a magnificent job, and we are deeply
grateful to every one. From the beginning our goal was not only to recruit
as participants those whom all would identify as leading figures of our field
but also to include those who, we were confident, would be leading figures
of its next generation.We are delighted that so many of each were willing.
We acknowledge also those who were unable for one reason or another to
see an initial commitment through to the end: their efforts, too, helped us
define and establish the project. And obviously, we owe a particular debt to
those others who came later to take the places of the fallen.
To oversee a project in which so many people have at one time or another
been involved has seemed on occasion like being the mayors of a village.
People arrive and (much less frequently, thank goodness) depart. Those who
settle in for the duration become a community of friends and neighbors.
Over time, one learns much from one*s friends and neighbors about the joys
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xviii Editors* Preface
and vicissitudes of life. One learns who (and whose family) may be ailing,
and who is well. One learns of hurts and difficulties; one revels in successes.
And one may learn, as we did so sadly in August 2006, of an untimely
death. Notwithstanding the demands of his immensely successful career in
academic administration, our colleague Kermit Hall never laid down his
historian*s pen and was an enthusiastic participant in this project. He died
suddenly and unexpectedly. His contributions to the field have been great,
and he is greatly missed.
Throughout, the many authors in this project have responded courteously
to our editorial advice. They have reacted with grace and occasional humor
to our endless demands that they meet their deadlines. Sometimes they even
sent their manuscripts too. Most important, they have striven to achieve
what we asked of them 每 the general goals of a Cambridge history and the
specific goals of this history, as we have described them in this preface. Their
achievements are evident in the pages of each volume. In an individualistic
intellectual culture, the scholarship on display here demonstrates the
possibilities inherent in a collective intellectual enterprise. In the end, of
course, the editors, not the authors, are responsible for the contents of these
volumes. Yet, it is the authors who have given the History its meaning and
significance.
Michael Grossberg
Christopher Tomlins
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1
law, colonization, legitimation, and
the european background
anthony pagden
The conquest, occupation, and settlement of the Americas was the first largescale
European colonizing venture since the fall of the Roman Empire. Like
the Roman Empire, various occupying powers acquired overseas possessions
in territories in which they had no clear and obvious authority. Their
actions demanded an extensive reexamination, and sometimes reworking, of
whole areas of the legal systems of early modern Europe, just as they threw
into question earlier assumptions about the nature of sovereignty, utterly
transformed international relations, and were ultimately responsible for the
evolution of what would eventually come to be called ※international law.§
Broadly understood, the legal questions raised by this new phase in
European history can be broken down into three general categories: the
legitimacy of the occupation of territories that, prima facie at least, were
already occupied; the authority, if any, that the colonizers might acquire
over the inhabitants of those territories; and 每 ultimately the most pressing
question of all 每 the nature of the legal relationship between metropolitan
authority and the society that the colonists themselves would establish.
Of the five major European powers to establish large-scale and enduring
settlements on the American mainland 每 Spain, Portugal, Holland, France,
and England 每 the English were relative latecomers. Although there are
more similarities between them and the other European colonial powers
than has sometimes been supposed, in many respects both the legal character
and the administration of their colonies were unusual. The overseas
possessions of the Spanish, despite early incorporation into the Crown of
Castile, were legally identified as separate kingdoms 每 the reinos de Indias 每
governed by a separate body of legislation (codified in 1680) and administered
by a royal council whose functions were similar to those of the councils
that administered the European regions of the empire: Italy, Flanders, and
Castile itself. The Spanish possessions were thus a separate but legally incorporated
part of a single imperium, embodied in the person of the monarch 每
what has often be referred to as a ※composite monarchy.§ The Portuguese
1
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2 Anthony Pagden
overseas dependencies were, with the exception of Brazil, trading stations
(feitorias) not dissimilar to the factories the English later established in Asia
and were under the direct control of the crown. The French kings looked
on New France 每 what would later become Canada 每 as part of the royal
demesne. However, unlike their English neighbors, the French settlers were
governed according to a body of local administrative law called the Coutume
de Paris, a situation that would determine the ideological shape of the
empire until the collapse of the monarchy itself. The Dutch Republic*s possessions
in America, both in the New Netherlands and, while it lasted, New
Holland (a part of Portuguese Brazil that the Dutch held between 1630
and 1654), were held by the Dutch West Indian Company, which had a
monopoly on all land and trading concessions. The governors appointed to
the regions by the Dutch Republic were officers in the Company*s employ.
The laws they administered were those of the Dutch Republic, and Dutch
settlers in the Americas never thought of themselves as anything other than
Dutchmen overseas.
By contrast, each of the thirteen colonies that were eventually to make
up the United States, from Puritan New England to Catholic Avalon, had
a different foundation, a different form of administration, and represented
different demographic and cultural aspects of the of the British Isles. The
legal status of the English colonies was also both more varied and much
less precisely defined than that of their Spanish, Portuguese, French, or
Dutch (or even later their Swedish, Russian, and German) counterparts.
Some colonies were proprietary, like Maryland; some were corporate, in
which the King had granted powers of self-government to a company or
to a body of settlers, like Massachusetts. Virginia (after 1624) and New
York were administered directly by the Crown (as was Maryland between
1689 and 1715). As Edmund andWilliam Burke noted in 1757, ※There is
scarce any form of government known, that does not prevail in some of our
plantations.§1
The same applied to the various legal systems employed throughout the
colonies. As one anonymous settler in Virginia complained in the early
eighteenth century, ※No one can tell what is law and what is not in the
Plantations.§2 The English common law, unlike the law in Spain and France
during the sixteenth century, was uncodified. The absence of any accepted
body of legislation made the resulting conflict between the Parliament,
1 Edmund and William Burke, An Account of the European Settlements in America, 2 vols.
(London, 1757), II: 288每9.
2 Quoted in Craig Yirush, From the Perspective of Empire: the Common Law, Natural Rights
and the Formation of American Political Theory, 1689每1775. Unpublished PhD diss., Johns
Hopkins University, 2004, Chapter 2.
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Law, Colonization, Legitimation, and the European Background 3
the Crown, and the various colonies and overseas dependencies difficult to
resolve. It was this lack of any single constitutional definition of empire
that led the historian Sir Robert Seeley in 1883 to make his famous remark
that it seemed as if England had ※conquered and peopled half the world
in a fit of absence of mind.§ And it would remain a defining feature of the
British Empire until its final demise in the twentieth century.
There was a further difference between the English and their European
rivals. From the beginning of their colonizing ventures, the English seem
to have taken a far more detached view of the possible relations between the
mother country and its colonies than their continental neighbors. Spain,
quite obviously, and France, less certainly, represented themselves as the
true heirs to Rome. Britain, which at least until the eighteenth century
had a very weak sense of itself as an empire 每 a word that, as John Adams
said later, belonged ※not to the language of the common law, but the
language of newspapers and political pamphlets§ 每 held to a far stricter
distinction between a ※colony,§ on the one hand, and a separate, if distinct
kingdom within a ※composite monarchy,§ on the other.3 But if there was,
in effect, no true British Empire before Disraeli created one for Queen
Victoria in 1878, and if the American colonies were not, as those of both
Spain and France were, united to the mother country by a shared ius publicum
embodied in the legal person of the King, what was their relationship to
the metropolis? On the answer to this question hinged, the entire nature of
their legal identity.
To understand just how the English colonies in America acquired their
distinctive legal character, we have to begin where the colonists themselves
had a fortiori to begin: with the question of legitimacy. From the
early sixteenth century until well into the eighteenth, Spain, France, and
Britain waged a moral, theological, and legal battle over the legitimacy of
the conquest and settlement of the Americas. This struggle has often been
presented as a concern with the justice of the treatment of indigenous peoples.
In large part this was indeed the case. What is frequently overlooked,
however, is that the question of justice was also a question about the juridical
status of the European settlements, both under what we would now
term ※international law§ 每 then called the ※law of nations§ (ius gentium) 每
and under the civil law of the European states from which the settlers had
come. And because it involved questions of juridical status no less than of
humanity, the struggle over legitimacy had far-reaching consequences both
for the legal history of the English colonies themselves and for the eventual
United States.
3 Charles Francis Adams, ed., Works, 10 vols. (Boston, 1850每56), IV: 37.
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4 Anthony Pagden
I. GROUNDS FOR POSSESSION
Like their European rivals the English could make no a priori claims to
rights of any kind in the Americas. ※[We] shall be put to defend our title,§
the Virginia Company early recognized, ※not yet publicly quarreled, not
only comparatively to be as good as the Spaniards, but absolutely to be
good against the Natural people.§ Claims to both sovereignty and property
in the American had thus to be sustained on two fronts: first against prior
claims by another European power 每 in this case Spain, which by the Treaty
of Tordesillas with Portugal in 1494 had stated its rights to all territory
in the western hemisphere 每 and then against all those others, the ※Natural
people,§ whose rights would seem to be antecedent to those of any
European. Because no argument from English civil law could be applied
anywhere outside the jurisdiction of the English courts, the English, like
their European rivals, had to find some argument that would be considered
valid in either natural law (ius naturae) or the law of nations (ius gentium),
laws that were believed to be binding on all humankind no matter what
their civil constitution might be. The complex and extended attempts to
find this argument rumbled on well into the nineteenth century and are
still being rehearsed in Canada and Australia to this day.
All the European empires faced the same dilemma. However, whereas
the Spanish, the French, and to some degree the Portuguese were troubled
primarily by their political (and ethical) relationship with the indigenous
populations whom they sought, at one level or another, to assimilate into
the new colonial order, the English were prompted far more by concerns
over the consequences that the grounds for occupation might have for the
rights and liberties of the colonists themselves vis `a vis the Crown. Both the
Spanish and the French, in their different ways, had attempted to establish
not colonies but overseas dependencies and had tried to incorporate the
indigenous peoples into new multi-ethnic societies. The Native Americans
were peasants, serfs, and sometimes allies. A few could even be landowners
with European servants, and at least in the early years in Spanish America
they could occupy semi-bureaucratic positions in the new overseas dependencies.
Under a law of 1664, all native inhabitants of New France who
had converted to Christianity were held to be ※denizens and French natives,
and as such entitled for all rights of succession, goods laws and other dispositions,
without being obliged to obtain any letter of naturalization.§4
For the English, by contrast, the indigenes were always only of secondary
4 ※Etablissement de la Compagnie des Indes Occidentales,§ E´dits, ordonnances royaux,
declarations et arrˆets du conseil d*´etat du Roi concernant le Canada, 3 vols. (Quebec, 1854每6)
I: 46.
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Law, Colonization, Legitimation, and the European Background 5
importance, persons who were to be displaced, not incorporated 每§savages,§
in the terms of Charles II*s charter to settle Carolina 每 who belonged in the
same general category with ※other enemies pirates and robbers.§5 It was
the manner of their displacement which was crucial since it raised substantial
legal questions about the status of those who were engaged in 每 and
benefiting from 每 the displacing.
Unlike the Spanish, furthermore, and to some degree the French, the
English lacked any initial founding charter issued by an international
authority because the only such authority that existed at the time was
the papacy. Henry VII*s letters patent to John Cabot of 1496 were to some
degree an attempt to replicate the language of papal legislation, as were the
grants made by Elizabeth I to Sir Walter Raleigh in March 1584. But for
all their assumed authority neither Henry nor Elizabeth were pontiffs; neither
could make the least claim to excise jurisdiction beyond their realms.
In the end, possession or sovereignty in the Americas could only be made
legitimate on three distinct grounds: by right of conquest; by ※discovery,§
which crucially, as we see, implied that the territory being ※discovered§
was also unoccupied; or by purchase from, or voluntary concession by, the
native and legitimate owners or rulers.
II. CONQUEST
Of these grounds for legitimacy, the most contentious was indisputably
conquest because no conquest could be legitimate unless it were the consequence
of a just war, and there were no immediate or obvious reasons for
considering the European invasions of America as in any sense just. In general,
conquest as prior grounds for claims of property rights or sovereignty
was looked on with mistrust throughout the entire history of the European
overseas empires.6 ※The Sea,§ as the Scottish political theorist and soldier
of fortune, Andrew Fletcher, declared in 1698, ※is the only Empire which
can naturally belong to us. Conquest is not our Interest.§7 The Portuguese
spoke of ※conquering§ the seas, but rarely the land, and even the Spanish,
whose American empire was so obviously and in the early years so proudly
based on conquest, banned all official use of the term in 1680. In England,
5 ※The Second Charter Granted by Charles II to the Proprietors of Carolina,§ in Historical
Collection of South Carolina; embracing many rare and valuable pamphlets and other documents
relating to the State from its first discovery until its independence in the year 1776, 2 vols. (New
York, 1836), II: 44.
6 Second Treatise 2.175 in Locke*s Two Treatises of Government, 2nd ed. (Cambridge, 1967),
403.
7 ※A Discourse on Government with Relation to Militias§ in The PoliticalWorks of Andrew
Fletcher (London, 1737), 66.
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6 Anthony Pagden
furthermore, there existed a long-standing distrust of conquest 每 to which
I shall return 每 that originated in the Norman occupation after 1066 and
resulted in the ※continuity theory§ of constitutional law in which the legal
and political institutions of the conquered are deemed to survive a conquest.
Yet, at least during the first phase of the colonization of America, from the
moment of Raleigh*s short-lived settlement at Roanoke, the English Crown
and its agents maintained consistently that the American colonies were
※lands of conquest,§ no matter what the realities of their actual occupation.
Virginia, New York, and Jamaica, for instance, were consistently referred
to as conquests. The ※Emperor§ of Virginia, Powhatan, was even crowned
by Christopher Newport in an attempt to create the image of a North
American Atahualpa. (The Privy Council, however, sent a copper crown for
the ceremony rather than gold, thus carefully indicating the inferior status of
James I*s new tributary ruler.) As late as 1744, in the negotiations which led
to the treaty of Lancaster with the Iroquois, the Virginia delegation declared
that ※the King holds Virginia by right of conquest, and the bounds of that
conquest to the westward is the great sea.§ The Virginia colony, that is,
reached all the way to the Pacific.
Virginia was the clearest instance of a land of conquest, but it was by no
means the only one. The early charters and letters patent are all liberally
scattered with references to conquests and occupations, which for some
jurists at least, seem to have been taken to be the same thing. Occupation,
declared the most influential of them, Sir Edward Coke, ※signifieth a putting
out of a man*s freehold in time of warre . . . occupare is sometimes taken to
conquer.§8
The initial claim that America was a land of conquest, was not, however,
made in isolation. It was but one, of which the annexation of India by
the British Crown in 1858 was to be perhaps the last, of a long series of
※conquests,§ some more obviously so than others: the conquest of Wales,
completed in 1536; the conquest, or at least the seizure, of the Channel
Islands (although this was not completed until 1953); the conquest of the
Isle of Man in 1406; the prolonged conquests of Ireland between 1175 and
1603; and the initial attempt at union with Scotland or of the subordination
of Scotland to an English Parliament, which was to become one of the issues
at stake in the Civil War, in 1603. For more than two centuries before the
first colonies were established on the eastern seaboard of North America,
England had been in a state of constant and determined expansion. It was
to remain more or less uninterruptedly in this state untilWorldWar I.
In all previous cases, and in the protracted English attempts to seize
parts of northern France, conquest had been justified on grounds of dynastic
8 First Institute of the laws of England (Philadelphia, 1826每7), II: 249b.
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Law, Colonization, Legitimation, and the European Background 7
inheritance: a claim, that is, based on civil law. In America, however, this
claim obviously could not be used. There would seem, therefore, to be no
prima facie justification for ※conquering§ the Indians since they had clearly
not given the English grounds for waging war against them.
Like the other European powers, therefore, the English turned to rights
in natural law, or 每 more troubling 每 to justifications based on theology.
The Indians were infidels, ※barbarians,§ and English Protestants no less
than Spanish Catholics had a duty before God to bring them into the fold
and, in the process, to ※civilize§ them. The First Charter of the Virginia
Company (1606) proclaimed that its purpose was to serve in ※propagating
of Christian religion to such people, [who] as yet live in darkness and
miserable ignorance of the true knowledge and worship of God, and may in
time bring the infidels and salvages living in these parts to humane civility
and to a settled and quiet government.§ In performing this valuable and
godly service, the English colonists were replicating what their Roman
ancestors had once done for the ancient Britons. The American settlers,
argued William Strachey in 1612, were like Roman generals in that they,
too, had ※reduced the conquered parts of our barbarous Island into provinces
and established in them colonies of old soldiers building castles and towns
in every corner, teaching us even to know the powerful discourse of divine
reason.§9
In exchange for these acts of civility, the conqueror acquired some measure
of sovereignty over the conquered peoples and, by way of compensation for
the trouble to which he had been put in conquering them, was also entitled
to a substantial share of the infidels* goods. Empire was always conceived
to be a matter of reciprocity at some level, and as Edward Winslow nicely
phrased it in 1624, America was clearly a place where ※religion and profit
jump together.§ For the more extreme Calvinists, such as Sir Edward Coke
who seems to have believed that all infidels, together presumably with all
Catholics, lay so far from God*s grace that no amount of civilizing would be
sufficient to save them, such peoples might legitimately be conquered; in
Coke*s dramatic phrasing, because ※A perpetual enemy (though there be no
wars by fire and sword between them) cannot maintain any action or get any
thing within this Realm. All infidels are in law perpetui inimici, perpetual
enemies, (for the law presumes not that they will be converted, that being
remota potentia, a remote possibility) for between them, as with devils, whose
subjects they be, and the Christians, there is perpetual hostility and can be
no peace.§
9 The Historie of Travell into Virginia Britania, ed. Louis B. Wright and Virginia Freund
(London, 1953), 24. I am grateful to David Armitage for drawing my attention to this
text.
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8 Anthony Pagden
Like all Calvinists, Coke adhered to the view that as infidels the Native
Americans could have no share in God*s grace, and because authority and
rights derived from grace, not nature, they could have no standing under
the law. Their properties and even their persons were therefore forfeit to the
first ※godly§ person with the capacity to subdue them. ※If a Christian King,§
he wrote, ※should conquer a kingdom of an infidel, and bring them [sic]
under his subjection, there ipso facto the laws of the infidel are abrogated, for
that they be not only against Christianity, but against the law of God and
nature contained in the Decalogue.§10 Grounded as this idea was not only
in the writings of Calvin himself but also in those of the fourteenth-century
English theologian John Wycliffe, it enjoyed considerable support among
the early colonists. As the dissenting dean of Gloucester, Josiah Tucker,
wrote indignantly to Edmund Burke in 1775, ※Our Emigrants to North-
America, were mostly Enthusiasts of a particular Stamp. They were that set
of Republicans, who believed, or pretended to believe, that Dominion was
founded in Grace. Hence they conceived, that they had the best Right in the
World, both to tax and to persecute the Ungodly. And they did both, as soon as
they got power into their Hands, in the most open and atrocious Manner.§11
By the end of the seventeenth century, however, this essentially eschatological
argument had generally been dropped. If anything it was now
the ※papists§ (because the canon lawyers shared much the same views as
the Calvinists on the binding nature of grace) who were thought to derive
rights of conquest from the supposed ungodliness of non-Christians. The
colonists themselves, particularly when they came in the second half of
the eighteenth century to raid the older discussions over the legitimacy of
the colonies in search of arguments for cessation, had no wish to be associated
with an argument that depended upon their standing before God. For
this reason, if for no other, it was, as James Otis noted in 1764, a ※madness§
which, at least by his day, had been ※pretty generally exploded and hissed
off the stage.§12
Otis, however, had another more immediate reason for dismissing this
account of the sources of sovereign authority. For if America had been
conquered, it followed that the colonies, like all other lands of conquest,
were a part not of the King*s realm but of the royal demesne. This would
have made them the personal territory of the monarch, to be governed at the
King*s ※pleasure,§ instead of being subject to English law and to the English
Parliament. It was this claim that sustained the fiction that ※New England
10 The Reports of Sir Edward Coke, Book VII (London, 1658), 601每2.
11A Letter to Edmund Burke, Esq., A Member of Parliament for the City of Bristol . . . in Answer
to his Printed Speech (Gloucester, 1775), 18每20.
12 ※The Rights of the British colonies asserted and proved§ [Boston, 1764], in Bernard
Bailyn, ed., Pamphlets of the American Revolution. I 1750每1765 (Cambridge. MA, 1965),
422.
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Law, Colonization, Legitimation, and the European Background 9
lies within England,§ which would govern the Crown*s legal association
with its colonies until the very end of the empire itself. As late as 1913, for
instance, Justice Isaac Isaacs of the Australian High Court could be found
declaring that, at the time Governor Arthur Phillip received his commission
in 1786, Australia had, rightly or wrongly, been conquered, and that ※The
whole of the lands of Australia were already in law the property of the King
of England,§ a fact that made any dispute over its legality a matter of civil
rather than international law.
It was precisely because all conquered territories were a part of the royal
demesne that the monarch was able to grant charters to the colonies in the
first place. For however empty those charters might have been considered
by some, they were indisputably concessions made by the Crown. Charters,
wrote Thomas Hobbes, ※are Donations of the Soveraign; and not Lawes but
exemptions from Law. The phrase of a Law is Jubeo, Injugo, I Command and
Enjoyn; the phrase of a Charter is Dedi, Concessi, I have Given I have Granted.§13
If this were so, and Hobbes is here stating a legal commonplace, then in
one quite specific sense the English colonies had feudal foundations. Most
of the lands in America had originally been granted in ※free and common
socage§ as of the manor of East Greenwich in Kent. This formula allowed for
what were, in effect, allodial grants, which derived from a contract between
the Crown and the landowner but at the same time avoided the duties of
feudal tenure 每 such as the need to provide auxilium et consilium, in effect
military assistance to the sovereign. In this way the colonies were both free
and unencumbered while at the same time remaining legally part of the
royal demesne, and every part of the terra regis had to form a constitutive
part of a royal manor in England. Land in Ireland, for instance, was held as
of Carregrotian, or of Trim or of Limerick or of the Castle of Dublin, and
when Charles II made over Bombay to the East India Company this land too
was granted in ※free and common socage§ of the manor of East Greenwich.
In the proprietorial colonies, by contrast, a large area of land was granted to
a single individual, who then allocated lands more or less as he pleased. But
even here the Crown still maintained that it possessed the ultimate rights
of ownership and that it could therefore dispose of the territory in question
as it wished. (The Spanish Crown, by contrast, although often represented
as the most despotic and centralizing of the European monarchies, only ever
made claims to exercise property rights in several limited areas which were
described as being under ※the King*s head,§ or cabeza del rey.)
The English King*s persistent belief that the overseas dependencies
remained his personal property, despite the charters that the monarchy
itself had granted to each of its parts, led to some strain in the relationship
between King and Parliament. When, in 1660, Charles II acquired
13 Leviathan, ed. Richard Tuck (Cambridge, 1991), 200.
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10 Anthony Pagden
Jamaica, together with Dunkirk and Tangier, he immediately moved that
these territories were also part of the royal demesne and thus his to dispose
of as he willed. As a preemptive move, on September 11, 1660, the House of
Commons passed a bill ※for annexing Dukirke . . . and the Island of Jamaica
in America to the Crown of England.§ Charles rejected this law, and on
October 17, 1662 sold Dunkirk to Louis XIV for £5 million. Selling off
what Parliament held to be parts of the realm was an extreme measure, but
there was little Parliament could do about it at the time. What was at stake
here was the status of private rights as against the sovereign rights of the
monarchy. The royal claim created obvious difficulties when, after the end
of the Seven Year*sWar, Parliament attempted to tighten its hold over the
fiscal and commercial activities of the colonies.
The exceptions to the rule were those areas, Maryland and the Carolinas,
which had been created as palatinates, ※as of any Bishop of Durham, within
the Bishopric, or County Palatinate of Durham.§14 Although much reduced
in power since 1535, Durham itself remained a palatinate until 1836. The
bishop had, in effect, powers very similar to those of the Spanish viceroys.
The charter of Maryland also offered its proprietor, Lord Calvert, ※free and
common socage.§ In exchange for a nominal rent of two Indian arrows
and one-fifth of all gold and silver ore payable annually to the Crown, the
proprietor was given the right to grant or lease any portion of the territory
in fee simple or fee tail. Among other privileges he could also erect manors
with courts baron and courts leet.
Both approaches, however, still preserved lands as part of the royal patrimony,
albeit at one remove; consequently, both denied inhabitants any right
of appeal against their immediate proprietor. For as both the bishop and the
proprietor were, in effect, delegates of the Crown, the colonists could make
no claim to constitute an independent sovereign body. This resulted in some
very strained interpretations of the historical facts of conquest. In 1694 the
inhabitants of Barbados argued before the House of Lords that they were
entitled to rights under English law as ※their birthright§ because Barbados
had been, quite literally, uninhabited when they arrived. They were told
that, notwithstanding the facts of the matter, Barbados was nevertheless
held to be a ※conquered territory.§ Any protection the settlers might have
under English law was therefore at the discretion of the monarch. As Coke
put it, ※If a king come to a Christian kingdom by conquest, seeing that he
hath vitae et necis potestatem, he may at his pleasure alter and change the laws
of that kingdom§ 每 a statement which, of course, was a direct contradiction
of the continuity theory of conquest.15 If Coke were right then the same
14 Fundamental Constitutions of Carolina, in John Locke: Political Essays, ed. Mark Goldie
(Cambridge, 1997), 161每2.
15 The Reports of Sir Edward Coke, Book VII, 601每2.
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Law, Colonization, Legitimation, and the European Background 11
would apply to the Americas, even if there was, in effect, no prior recognizable
system of legislation. Indeed, in Coke*s view it would apply with even
greater force in a country of ※Infidels§ such as America, because the laws of
such peoples had no basis in right at all.
Here the long-standing suspicion of conquest, which originated in the
Norman Conquest of Britain, could be turned to the Crown*s advantage. If
America had been conquered, its laws could only be made by royal decree,
and its inhabitants would be bound by those laws. Further, because those
laws were royal decrees they would not be subject to the provisions of Magna
Carta or any of the subsequent constraints that Parliament had succeeded in
imposing on the monarchy. This did not much appeal either to the settlers
or to Parliament, which took the view that, although such laws might have
been made by the monarch acting very much as, to use the Roman term,
※unfettered by law§ (legibus solutus), once they had been enacted they became,
in effect, laws passed by Parliament. In Coke*s view, for instance, although
King John had introduced the laws of England into Ireland without Parliamentary
consent, ※no succeeding king could alter the same without parliament.§
It was for this reason that Sir William Blackstone, in what has
become perhaps the most celebrated statement on the subject, declared that
※our American plantations§ had been ※obtained in the last century either
by right of conquest and driving out the natives (with what natural justice
I shall not at present inquire) or by treaties. And therefore the common law
of England, as such, has no allowance or authority there, they being no part
of the mother country, but distinct though dependent dominions. They are
subject, however, to the control of Parliament.§16
On occasion the same was also said of Ireland, which although indisputably
a land of conquest was nevertheless frequently described as a
※dominion separate and divided from England.§17 ※Of all the objections
raised against us,§ complained William Molyneux in 1698 of attempts to
classify Ireland as a colony and thereby to remove it from the legal jurisdiction
of Parliament, ※I take this to be the most extravagant: it seems
not to have the least foundation or colour from reason or record. . . . Do not
the Kings of England bear the Stile of Ireland amongst the rest of their
Kingdoms? Is this Agreeable to the nature of a Colony? Do they use the
title of Kings of Virginia, New England or Maryland?§18 The same was
true of the Isle of Man, which, although governed by its own laws, could be
bound toWestminster any time Parliament chose because it had originally
been acquired under Henry IV ※by conquest.§
16 SirWilliam Blackstone, Commentaries on the Laws of England, ed. Stanley Katz (Chicago,
1979), I: 105.
17 Howell, State Trials, II: 648.
18 The Case of Ireland*s being bound by Acts of Parliament (London, 1698), 148.
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12 Anthony Pagden
What Blackstone*s claim implied, of course, was that in the case of both
conquest and treaty (for a treaty could only be entered into by a sovereign
state) New England was not ※within England.§ Nor was it the case that
English law 每 English common law at least 每 followed Englishmen wherever
they went, as was so often stated. Paradoxically, the consequence of such
a view was that whereas the colonies were themselves nothing other than
extensions of the royal demesne, the laws by which they were ruled were,
in the terms of the various charters by which they had been established, the
creation of the colonists themselves. It was this situation that led Andrew
Fletcher in 1704 to compare the British overseas empire to the leagues of
the Greek city-states, a semi-federal structure in which each community
was responsible for its own internal affairs, and consequently its own legislative
order, while being dependent or semi-dependent on a central power
for its external regulation.19 It would become a popular model that would
be applied later by James Madison and James Wilson to their proposals
for a federal structure for the United States. This quasi-independent status,
both political and legal, with respect to the metropolis did not make
the American colonies distinct from other colonial settlements within the
British Empire, despite repeated attempts by American historians in pursuit
of the origins of American exceptionalism to demonstrate that it did.
Similar patterns would later be repeated in India, Africa, and Australia.
However, it did distinguish them from the colonial settlements of other
European powers in the Americas.
Their freedom had, however, been conceded to the settlers either directly
by the Crown or by those to whom the Crown had made grants or charters.
And because they were not a part of what Francis Bacon had called ※one
imperial crown§ they could not enjoy the benefits of the English common
law. The position involved, of course, a great deal of incoherence, which was
captured nicely by Benjamin Franklin when he demanded to know, ※What
have these inhabitants of East Greenwich in Kent done, that they, more than
any other inhabitants of Kent, should be curbed in their manufactures and
commerce?§20 For if the colonists were virtual residents of East Greenwich
then they should have enjoyed all the rights enjoyed by the English, just
as any laborer on the East Greenwich estate would necessarily have done.
The argument that because the colonies were the personal property of the
19 ※An account of a Conversation concerning the Regulation of Governments for the
Common Good of Mankind§ in Andrew Fletcher, The Political Works of Andrew Fletcher
(London, 1737), 436.
20 ※On the tenure of the Manor of East Greenwich§ [January 11, 1766] in Benjamin
Franklin, The Papers of Benjamin Franklin, ed. William B. Wilcox (New Haven, 1959每
1993), 13, 21.
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Law, Colonization, Legitimation, and the European Background 13
monarch their inhabitants could be denied the rights and freedoms enjoyed
by those of other places within the British monarchy was also perceived
by many to be a short road to the establishment of the kind of unfettered
legislative powers which the British constitution had struggled so hard for
so long to prevent. It was one of the reasons why Edmund Burke upheld
the rights of self-determination claimed by the American revolutionaries.
※In order to prove that the Americans have no right to their liberties,§ he
wrote in 1776, ※we are every day endeavoring to subvert the maxims which
preserve the whole Spirit of our own.§
No matter what the legal status of the colonies was thought to be in
England, in America de facto self-government in most of the settlements
resulted in a great deal of autonomous legislation. It also led, inexorably, to a
political climate in which, in Burke*s words, the colonists tended to ※augur
misgovernment at a distance and snuff the approach of tyranny in every
tainted breeze.§ The conflict over the status of the relationship between the
Crown and its overseas subjects first came to a head in the years after the
Restoration in 1660 when an attempt was made to transform the scattered
American colonies into something resembling the Spanish empire, with a
centralized structure. Between 1651 and 1696, a series of Navigation Acts
were passed whose purpose was to restrict trade between the colonies and
the mother country and to exclude the Scots from what was, in effect, an
English mercantile system. A new authority of the Privy Council called
the Lords of Trade and Plantations was also established to administer the
colonies, and although the name of this body still indicated the degree to
which the Crown looked upon its overseas possessions in Baconian terms,
it remained the case that this was far closer to the Spanish Council of
the Indies than anything that had existed previously. More significantly,
the royal charters of the corporate colonies were revoked by royal decree. The
Crown had already resumed the charter of the Virginia Company in 1624,
and between then and the 1680s various, although frequently inconsistent,
attempts were made to establish Crown sovereignty over all the remaining
settlements.
From the late seventeenth century until the eve of the Revolution, the
Crown or its more legal-minded officials had looked with envy at the
degree of administrative and judicial authority the Spanish exercised in their
colonies. In the opening years of the eighteenth century, the English political
and economic theorist Charles Davenant, although one of the fiercest
critics of what he saw as Spanish cruelty and Spanish popery, nevertheless
recommended that ※a constitution something like what we call the Council
of the Indies in Spain§ should be established in Britain. ※Whoever considers
the laws and political institutions of Spain,§ he went on, ※will find them
as well formed, and contrived with as much skill and wisdom, as in any
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14 Anthony Pagden
country perhaps in the world.§21 In accordance with this sentiment, by the
1670s the Crown had begun to put into operation a plan to divide the
thirteen colonies into four separate viceroyalties.
In the end, however, only one viceroyalty was ever established, the
Dominion of New England, which combined the former colonies of New
England 每 Massachusetts, Plymouth, Maine, New Hampshire, Rhode
Island, and Connecticut 每 with New Jersey and New York. Like the Spanish
viceroyalties, the Dominion was ruled by a single individual appointed by
the Crown, who governed with a council but without a locally elected
assembly, and who exercised certain legislative and executive powers. After
the Glorious Revolution of 1688 and the demise of the Stuart monarchy,
the colonists threw the governor and the members of his advisory council
into jail, and the Dominion ceased to be. Nevertheless, by 1776 only three
of the thirteen mainland colonies 每 Massachusetts, Rhode Island, and Connecticut
每 still had charters. Two others 每 Maryland and Pennsylvania 每
had proprietors. All the rest, mainland and Caribbean, had become royal
territories.
In the eyes of the Crown, then, the American colonies were in all legal
respects lands of conquest. They were so not because any actual conquests
had occurred, but because the definition enabled the Crown to assert unlimited
rights to grant concessions, or, if it so wished, to repeal them without
consultation, just as, when the time came, it would assert an unlimited
right to raise exceptional taxes without consent. The claim of the American
revolutionaries that taxation without representation in Westminster was
illegal amounted to a denial of the status that the Crown had conferred on
them since the beginning. Their denial was predicated on an alternative
narrative of the legal foundations of the settlements which had begun to
emerge during the eighteenth century, one which would have a powerful
and enduring hold on the legal history of the revolution and indeed of the
fledgling United States.
III. DISCOVERY
In 1804, in the first volume of his misleadingly titled Life of Washington,
Chief Justice John Marshall stated categorically: ※There is not a single grant
from the British Crown from the earliest of Elizabeth down to the latest of
George II that affects to look at any title except that founded on discovery.
Conquest or cession is not once alluded to.§ Conquest, in Marshall*s view,
only became grounds for possession in the eighteenth century when the
21 ※On the Plantation Trade,§ in The Political and Commercial Works of that Celebrated Writer,
Charles D*Avenant LL.D., 5 vols. (London, 1771), II: 30每1.
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Law, Colonization, Legitimation, and the European Background 15
thirteen colonies that would make up the new United States had already
been securely established and most of their remaining indigenous populations
effectively dispossessed. The claim that the earliest, and crucial phase
of colonization was based solely on discovery provided the historical basis
for Marshall*s celebrated ruling in Johnson v. M*Intosh (1823). It became an
accepted commonplace and was repeated frequently by the United States
with regard to its own internal colonization.22 It seems to have been based
very largely on Marshall*s reading of Henry VII*s letters patent to John Cabot
of 1496, which had echoed exactly the terms of the bulls by which Pope
Alexander VI had granted to the Catholic Monarchs of Spain, Ferdinand
and Isabella, dominion over all territories in the western hemisphere not
already occupied by another Christian prince. In Marshall*s understanding
the right to occupation derived not from the conquest of such territories
(although Cabot is explicitly charged with conquest) but from the absence
of occupation by any power that the English were prepared to recognize as
sovereign.
Even if such an interpretation of Henry VII*s letters is warranted, it
is difficult to see how a man of Marshall*s learning could have insisted
that ※discovery§ had continued to be the sole justification employed by the
English Crown in view of all the subsequent evidence. But Marshall was
certainly not the first to make this claim. In 1754, faced with the prospect of
a French invasion, the delegates to the Albany Congress agreed ※[t]hat his
Majesty*s title to the northern continent of America appears founded on the
discovery thereof first made, and the possession thereof first taken, in 1497
under a commission from Henry VII of England to Sebastian Cabot.§ In
1774, James Abercromby, as influential a jurist as Marshall in his own day,
stated, ※The point of Territorial Right in America at first turned totally, on
the priority of Discovery.§ These statements show that from the moment
that the colonists began to distance themselves from the Crown, until well
after independence, there existed a movement to redefine the question of
legitimacy in such a way as to remove the notion that America had ever
been, de facto or de iure, a land of conquest.23
Proponents had good reason for wishing to do so. Marshall clearly
shared with his near contemporary, Joseph Story, and with John Adams
22 U.S. (8 Wheaton) 543.
23 ※Representation of the Present State of the Colonies,§ in Benjamin Franklin, The Papers
of Benjamin Franklin, ed.William B.Wilcox (New Haven, 1959每1993), V, 368; Magna
Charta for America: James Abercromby*s ※An Examination of the Acts of Parliament
Relative to the Trade and the Government of our American Colonies§ (1752) and ※De
Jure et Gubernatione Coloniarum, or An Inquiry in the Nature, and the Rights of Colonies,
Ancient, and Modern§ (1774), ed. Jack P. Greene, Charles F. Mullett, and Edward C.
Papenfuse, Jr. (Philadelphia, 1986), 200.
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16 Anthony Pagden
the widespread unease that the United States might have been created on
lands that had been seized illicitly from their original occupants, who might
therefore at any time attempt to claim them back again.24 In view of recent
developments in Canada, and the ruling of the Australian High Court in
Mabo v. The State of Queensland (1992) conceding that the land of the Meriam
peoples of the Murray Islands in the Torres Straits had been unjustly taken
from them, he had some grounds for anxiety.25 For all that he is represented
as one of the earliest defenders of aboriginal rights, Marshall, like most
of his contemporaries, looked upon Indians as what he called ※domestic
dependent nations,§26 who might possess the ※right to retain possession
of it [the land] and to use it according to their own discretion,§ but nevertheless
enjoyed greatly diminished ※rights to complete sovereignty, as
independent nations.§27 To make good this claim, their lands had to have
been acquired by any means other than force.
Abercromby, Story, Adams, and Marshall all knew that, of all the claims
to sovereignty made by the European powers in America, discovery had, in
what by Marshall*s day had become known as international law, been the one
discredited most easily. As English jurists of the seventeenth century were
quick to point out, even the Spanish had been reluctant to base assertions of
either sovereignty or possession on anything so flimsy. ※Discovery,§ observed
the great Spanish theologian Francisco de Vitoria, ※of itself provides no
support for possession of these lands, any more than it would if they had
discovered us.§28 But flimsy or not, discovery had the advantage not only of
securing rights of occupation ※in nature§ but also of distancing the history
of the English settlements in America from those of the Spanish, which
successive generations of English jurists had maintained were, in fact, little
more than usurpations. It was for precisely these reason that the settlers
in Barbados had argued that their lands, genuinely unoccupied, could not
possibly be counted as conquests.
Both Marshall and, more immediately, Abercromby were also the beneficiaries
of an Enlightenment attempt to detach the legacy of the crumbling
24 ※The European power which had first discovered the country and set up marks of
possession was deemed to have gained the right, though it had not yet formed a regular
colony there.§ Commentaries on the Constitution of the United States, 2 vols. (Boston, 1891),
2 vols. [first published 1833], I: 106.
25 This is the celebrated Mabo case. Commonwealth Law Reports (Australia) 175 (1991每1992),
Commonwealth Law Reports (Aus) 175 (1991每1992). In this case, however, the High Court
was disputing the British government*s original claim to land rights in Australia under
terra nullius, which for Marshall was an entirely legitimate means of acquiring lands.
26 Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 17 (1831).
27 Johnson v. M*Intosh, 23 U.S. (8 Wheaton) 591每2.
28 PoliticalWritings, ed. Anthony Pagden and Jeremy Lawrance (Cambridge, 1992), 264每5.
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Law, Colonization, Legitimation, and the European Background 17
Spanish empire from that of the more robust and prosperous British and
French settlements. By the middle of the eighteenth century it was widely
assumed across Europe 每 even by the Spanish themselves 每 that it had been
precisely the Spanish obsession with conquest that had reduced Spain by
the 1740s to little more than a dependency on its own colonies. In his Spirit
of the Laws (1748), which would become one of the most influential legal
treatises in the American colonies, Montesquieu had argued that because
the English and the French were ※more refined§ than the Spanish (he does
not mention the Portuguese) they had sought in the New World not ※the
foundation of a town or of a new empire,§ but instead ※objects of commerce
and, as such, [had] directed their attention to them.§29
In the very denial of empire, Montesquieu was himself picking up on
James Harrington*s definition of Britain as a state that exercised not imperium
over its various dependencies but patrocinium (protectorate). This, too, was
how Marshall and Abercromby wished to see it. But if the British Empire 每
as it was coming to be named 每 was now what Edmund Burke called ※an
empire of liberty,§ it could hardly be founded on the same legal grounds
as the Spanish, in British eyes the most despised tyranny of them all. The
claim of discovery thus had two distinct advantages. It distanced the English
settlers from their Spanish, Catholic, and consequently despotic neighbors.
And it was one of two grounds 每 contract or purchase being the other 每
that settlers could plausibly cite to deny usurpation in either natural law
or the law of nations.
The trouble with discovery as a title to possession, however, lay not only
in its lack of credibility. Even if it were accepted as a legitimate claim
in the way Marshall insisted it had been, it could never amount to more
than something like a right to first refusal. For behind Marshall*s attempts
to resuscitate the argument from discovery lay another legal debate, one
that would prove the most contentious and most widely discussed of all
European assertions to rights in overseas colonies, from Africa to Australia:
the debate over ※vacant lands§ or terra nullius.
In 1608 the Dutch humanist Hugo Grotius published what was to
become one of the foundational texts of modern international law, Mare
liberum (The Freedom of the Seas). Grotius*s objective was to refute the Portuguese
claim to dominium over the Indian Ocean and, by implication, the
possibility of any claim to property rights in the world*s oceans. In a world
of rapidly expanding trading empires which came increasingly in conflict
with one another, the topic of property rights was of considerable legal
and political importance. Debate spread throughout Europe. In 1636 it
prompted John Selden to respond to Grotius with what became one of the
29 De l*esprit des lois, Bk. XXI. cap. 21.
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18 Anthony Pagden
most widely read legal texts of the seventeenth century, Mare clausum, a
defense of England*s right to close the North Sea to foreign shipping.
Grotius*s argument had centered on the question of whether discovery
could be grounds for dominium 每that is sovereignty 每 and furthermore what
act, or acts, would count as a discovery. To the first of these questions he
answered that discovery could only provide a right of possession if what
had been discovered was genuinely unknown and unoccupied 每 what was
known as res or terra nullius. To the second he replied that the Latin term
invenire implied not merely seeing for the first time but also possession.
Discovery, therefore, ※is not merely to seize with the eyes (occulis usurpare)
but to apprehend.§30 Since it would be absurd to say that anyone could
※apprehend§ a body of water, the Portuguese claim to have ※discovered§
the Indian Ocean was evidently invalid. But what applied to the ocean
applied also to the land. To claim, as the Portuguese had done, that their
mere presence in Indian territorial waters granted them the sole right to
trade there was the same as arguing that any Japanese fleet cruising in the
Atlantic could claim dominium over the kingdom of Portugal. In both cases
the premises were as evidently absurd as the conclusion.
On March 15, 1613, Grotius went to England as a member of a Dutch
delegation sent to work out an agreement between England and Holland
over their respective commercial interests in the East Indies. According to
the Dutch account of this visit, James I is said to have remarked, ※Where neither
was in possession neither should impede the other*s free commerce.§ In
order, that is, to constitute rights, both possession and sovereignty (dominium
iurisdictionis) have to be exercised, a view that the Grotius of Mare liberum
would have shared. More than a century later, the English radical dissenter,
Richard Price would make the same point in exactly the same language. ※If
sailing along a coast can give a right to a country,§ he wrote in 1776, ※then
might the people of Japan become, as soon as they please, the proprietors of
Britain.§31 This, as Price also pointed out, was the real theoretical weakness
of the arguments set out in the Spanish Bulls of Donation. For ※it is not
a donation that grants dominium but consequent delivery of that thing and
the subsequent possession thereof.§ ※Nothing but possession by a colony,
a settlement or a fortress,§ Arthur Young had written a few years earlier,
※is now allowed to give a right from discovery.§32 Clearly the setting up
30 Mare liberum. The Freedom of the Seas, or the right which belongs to the Dutch to take part in
the East India Trade, trans. with a revision of the Latin text of 1633 by Ralph van Deman
Magoffin (Oxford,1916), 11每12.
31 ※Observations on the Nature of Civil Liberty, the Principles of Government, and the
Justice and Policy of the War with America§ in Political Writings, ed. D. O. Thomas
(Cambridge, 1991), 40.
32 Arthur Young, Political Essays Concerning the Present State of the British Empire (London,
1772), 472.
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Law, Colonization, Legitimation, and the European Background 19
of stone crosses, planting flags, burying bottles and other such devices to
which generations of Europeans had resorted were quaint and wholly insubstantial
as legally recognizable claims to possession. ※To pass by and eye,§
as the French King Francois I once icily informed the Spanish ambassador,
※is no title of possession.§
Before the English could claim that discovery had made them legitimate
masters of America, therefore, they had not only to have been there first but
they had also to have exercised some kind of actual sovereignty. Yet, in a
great many of the areas to which they laid claim, their presence was merely
proclamatory or cartographic. At a time when the only English presence
consisted of a handful of settlers in the malarial swamps along the banks of
the St. James River, the Virginia Company*s charter declared it exercised
jurisdiction over all ※territories in Am,erica either appertaining unto us, or
which are not now actually possessed by any Christian prince or people,
situate, lying and being all along the sea coasts between four and thirty
degrees of northerly latitude from the equinoctial line and five and forty
degrees of the same latitude, and in the main land between the same four
and thirty and five and forty degrees, and the islands thereunto adjacent or
within one hundred miles of the coast thereof.§ In fact, the English knew
little about either the real extent of these territories or the nature of their
inhabitants. The charter*s outlandish territorial claims belong rather to the
language of international diplomacy and were intended to establish primacy
over any other European power in the region, in particular the French. As
the drafters of the charter would have known, no right of discovery could
ever be made undisputedly against any prior occupant. Sovereignty, that
is, required not only discovery and a real presence. It also required that
the territories being occupied should be truly vacant or terra nullius. ※I like
a plantation in a pure soil,§ Francis Bacon had written in 1625, ※that is,
where people are not displaced to the end to plant in others. For else it is
rather an extirpation than a plantation.§33
Terra nullius is a principle which has been much discussed and remains a
topic for debate in both Australian and Canadian disputes over the rights of
indigenous peoples. It therefore requires some clarification. The term itself,
although widely used by historians to describe claims made in the early
modern period, does not in fact appear before the mid-nineteenth century.34
It has its origins, however, in Justinian*s Digest XLI. 1 and the law Ferae
bestiae, of the Institutes (II. 1. 2), which simply states, ※Natural reason admits
the title of the first occupant to that which previously had no owner.§ It is
also significant that the idea of vacancy, of being ※of no-one,§ is a concept in
33 On Plantations, in The Works of Francis Bacon, ed. James Spedding, 14 vols. (London,
1857每74), VI: 457.
34 I am grateful to David Armitage for pointing this out to me.
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20 Anthony Pagden
natural law that, along with many such general claims, Justinian*s lawyers
had absorbed into the Roman civil law. No such process was available,
however, in English law in which all land occupied by Englishmen was
ultimately the property of the Crown and had been acquired either though
descent or, as was claimed of America, through conquest. Precisely because
it was in origin a natural right, whose only codification is Justinian*s brief
entries, the principle of terra or res nullius is expressed in several different and
sometimes frankly contradictory ways. This has led some modern historians
to argue that, as a legal claim to possession in America, terra nullius was
devised ex post facto 每 as indeed Marshall seems to have done. But although
Marshall was clearly, for good political reasons, overstating the case, some
version of terra nullius had been in use since at least the early seventeenth
century.
Determining what constituted a terra nullius, however, posed considerable
legal difficulties and had far-reaching political and ethical implications.
What did it mean for a land to belong to ※no-one?§ In Roman law any
territory that had not been formally enclosed in some manner and could
not be defended, or had once been occupied, but was now abandoned, was
held to be vacant. ※In the Law of Nature and of Nations,§ John Donne told
the members of the Virginia Company in 1622, ※a land never inhabited
by any, or utterly derelicted and immemorially abandoned by the former
inhabitants, becomes theirs that will possess it.§35 In the American context,
however, such an account would have left very little space for European
occupation. Most, if not quite all, of the eastern seaboard of North America
was clearly neither uninhabited nor ※utterly derelicted§ nor ※immemorially
abandoned,§ no matter what the Virginia Company might think.
This argument also raised other difficulties. As its opponents frequently
pointed out, even in Europe there existed large tracts of land 每 the most
contentious being the royal forests 每 which although they were essentially
vacant, did not thus become the property of anyone who chose to settle on
and cultivate them. ※That which lies in common and has never been replenished
or subdued,§ wrote John Winthrop in his Reasons for the Plantation
in New England (c. 1628), ※is free to any that will possess and improve it.§
The same general argument was also applied to the territories within the
Ottoman Empire, which were widely believed to be effectively ※unused§
and thus might similarly be claimed as terrae nullius by Europeans. But
even the great sixteenth-century jurist, Alberico Gentili, although a firm
proponent of the claim that ※God did not create the world to be empty§
and who was generally prepared to concede extensive rights to Europeans
35ASermon Preached to the Honourable Company of the Virginia Plantation 13 nov. 1622 (London,
1623), 26.
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Law, Colonization, Legitimation, and the European Background 21
over non-Europeans on the grounds of their greater technical capacities,
was certain that although the occupation of lands formally under the jurisdiction
of the Ottoman state would be licit the settlers would nevertheless
be bound to accept the sovereignty of the Sultan.36 The same general point
was also made in the following century by Hugo Grotius.
A more demanding criterion had therefore to be found. This was based
on what came to be called ※improvement.§ The obligation on any holder of
land deemed to be terra nullius to improve it was applied literally by both
the English and the French. In 1648, for instance, the General Court of
Massachusetts decreed that anyone who received a grant of land by what
the court termed vacuum domicilium but did not build on or ※improve§ it
within a space of three years would lose it.37
The concept of improvement also had its origins in natural law. Since
antiquity, it had been assumed that one of the features of humankind was the
uniquely human ability to transform nature, or, in conventional Aristotelian
terms, to make actual what was otherwise only potential. This was the root
meaning of technology. Possession and sovereignty were consequently acts
that established relationships between persons and their external and social
worlds. Because those who failed to develop nature*s potentiality could
not be counted as true persons, they could not possibly establish such
relationships. ※God and his Reason,§ wrote John Locke in what was to
become the most influential formulation of this supposition, ※commanded
him to subdue the Earth, i.e. improve it for the benefit of Life, and therein
lay something upon it that was his own, his labour. He that in his Obedience
to this Command of God, subdued, tilled and sowed any part of it, thereby
annexed to it something that was his Property, which another had no Title
to, nor could without injury take from him.§38
Locke*s celebrated theory of property is, in effect, a development of Ferae
bestiae, and clearly it evolved in the context of the debates over the rights
of the American Indians in the years preceding the Glorious Revolution.
But what Locke had done, and which no previous writer on the topic
had attempted, was to associate the claims to possession with those of
sovereignty, because now what was being claimed was that only persons
who lived in civil society could possibly exercise property rights. What
this implied in the American context was far reaching. Nothing short
of agricultural exploitation and a recognizable civil society could provide
grounds for legitimate political control. The Native Americans, by general
36 De Iure belli, trans R. C. Rolfe (Oxford, 1933), I, XVII, para 131.
37 Records of the Governor and Company of the Massachusetts Bay, ed. Nathaniel Shurtleff
(Boston, 1853每4), II: 245.
38 Locke*s Two Treatises of Government, 309: Second Treatise 32.
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22 Anthony Pagden
consent, lacked the capacity to employ culture in this manner. They might
live on the land, but because, in Robert Cushman*s words, ※they run over
the grass as do also the foxes and wild beasts,§ they could not be said to
possess it.39 And since they did not possess it, any attempt on their part
to prevent the Europeans from putting it to its proper natural, and in the
terms employed by Locke, also God-ordained use, constituted a violation of
the natural law. As such they could, in Locke*s celebrated denunciation, ※be
destroyed as a Lion or a Tiger, one of those wild Savage beasts, with whom
Men can have no Society nor Security.§ Furthermore, under the terms of the
ius ad bellum (the law, that is, which governs the condition under which a war
may be waged) the would-be settlers might make war on such peoples ※to
seek reparation upon any injury received from them.§40 In other words, the
seizure of the lands from ※those wild Savage beasts§ might indeed, involve
conquest, but now it was wholly legitimate under natural law, rather than
a status established under English civil law.
Despite the considerable difficulties it presented and for all that
it involved a necessarily slippery distinction between possession and
sovereignty, terra nullius became perhaps the most enduring of the natural
rights arguments for overseas occupation. The colonists who through the
seventeenth and well into the eighteenth century had maintained that their
rights depended upon purchase from legitimate indigenous landowners (to
which I shall return) gradually began to turn to one or another version of
the ※agriculturalist§ argument 每 as it has come to be called 每 to support
what were, in effect claims to both legal and political independence from
the Crown. As the New Jersey jurist, Robert Hunter Morris, put it in the
mid-eighteenth century, ※If the people settling . . . the British Dominions
in America can derive property in soil or powers of government from any
source other than the Crown which by the laws of England is the fountain
of powers and property then they are as much independent of the Crown &
Nation of Britain as any people whatever.§ In one form or another, terra nullius
became the argument of final appeal in most of the American colonies.
As we have seen, it would later be considered final by John Marshall. It
also became the basis for the British occupation of Australia and, when any
justification at all was offered, of much of southern Africa. It was still being
invoked in the 1990s.
Terra nullius was part of the same essentially existential juridical argument
as an equally enduring Roman conception, namely prescription. This
allowed for long-term de facto occupation (preascriptio longi temporis) to be
39 Reasons and Considerations Touching the Lawfullness of Removing out of England into Parts of
America (London, 1622), f.2v.
40 Locke*s Two Treatises of Government, Second Treatise 12, 292.
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Law, Colonization, Legitimation, and the European Background 23
recognized de iure as conferring retrospective rights of property and of
jurisdiction. Despite its Roman origins, prescription was entirely in keeping
with most English constitutional thinking and with the process of the
English common law. ※Our Constitution is a prescriptive Constitution§
declared Edmund Burke:
it is a Constitution, whose sole authority is that it has existed time out of
mind . . . Prescription is the most solid of all titles, not only to property, but, which
is more to secure that property to Government. . . . It is a better presumption even
of the choice of a nation, far better than any sudden or temporary arrangement by
actual election. Because a nation is not an idea only of local extent and individual
momentary aggregation, but it is an idea of continuity, which extends in time as
well as in numbers, and in space.41
The legitimacy of a state or condition, that is, depended on its continual and
successful existence. Crucially, because prescription relied upon objective
conditions, it was able to transform natural into legal rights, and in the
end, in America, it was always legal rights that were under discussion.
Prescription, however, also presented considerable difficulties of interpretation,
particularly in the American context. One of the most obvious was
the length of time required to establish title. The English, claimed Robert
Johnson in 1609, had been in Virginia ※long since without any interruption
or invasion either of the Savages (the natives of the country) or any other
Prince or people,§ which conferred upon James I the right to grant ※rule or
Dominion§ over all ※those English and Indian people.§ In fact, ※long since§
amounted to little more than two years* continuous presence. It is unlikely
that any jurist, however zealous, could have accepted two years as sufficient.
(In English common law the minimum period was generally held to
be twelve years.) There was also the broader and more telling point, which
Grotius had made, that because prescription was indeed a truly existential
argument, it could only be a matter of civil law rather than part of the law
of nations, in which case it clearly could not apply to contracts between
※kings or between free peoples.§42
All this notwithstanding, prescription, like terra nullius, was generally
accepted by a large number of English jurists. Like terra nullius, it has had
a long life in the subsequent history of international law. And since, pace
Grotius, it was also widely held to be a part of the Law of Nations, it
applied to all peoples everywhere. Robert Ferguson, one of the champions
of the abortive scheme to create a settlement of Scotsmen in the Isthmus
41 Edmund Burke, ※Speech on the State of Representation of Commons in Parliament,§ in
Writings and Speeches ed J. F. Taylor (New York, 1901), 7: 94每5.
42 Nova Britannia, offring most excellent fruites by planting in Virginia (London, 1609), 47.
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24 Anthony Pagden
of Darien in 1699, acknowledged that the only rights which the Spaniards
might have in America derived exclusively from their ※claim and upon the
foot of prescription thro* their having inhabited, occupied and inherited
them for 200 years without interruption, disseizure or dispossession.§43
This implied that Ferguson*s own attempts to supplant them would be
invalid in law, unless, as he hoped would happen, the indigenous people
turned out to welcome the Scots as saviors from Spanish tyranny 每 which,
unsurprisingly perhaps, they failed to do.
IV. PURCHASE AND CONCESSION
The other argument, which John Marshall claimed was ※not once alluded
to§ in any ※single grant from the British Crown§ until the eighteenth century,
is cessation. British colonists, like their French and Dutch and later
Swedish and other European counterparts, made wide and varied use of
land purchases and of several kinds of land grants arrived at through treaty.
Indeed, for most colonists, purchase, gift, or treaty was the most usual way in
which individual colonists had acquired their land and had been so from the
beginning.44 Whether in the Chesapeake or in Massachusetts, the earliest
settlers purchased land whenever controversies over occupancy threatened.
As with all such claims, the Crown*s right to grant a patent in the first
place was not in question. Sovereignty, however, did not provide rights
to property. Even after independence when much of the semi-independent
status granted to the Indians by the Crown had been swept away, the new
United States claimed only the right to preempt attempts by other nations
to take possession. In their recognition of aboriginal title, as in so much else,
the British were following French and most immediately Dutch examples,
in particular after the Anglo-Dutch conflicts in the Connecticut valley in
the 1630s. The Dutch West India Company, eager as always to distance
itself from the behavior of the Spanish, ※less we call down the wrath of
God upon our unrighteousness beginning,§ insisted that all land had to
be ※righteously§ acquired without ※craft or fraud,§ so that, in the words of
the colony*s governor, Willem Verhulst, in 1625, none of the Algonquin
inhabitants of the Delaware and Hudson rivers should be ※driven away
by force or threats, but by good words be persuaded to leave, or be given
something therefore for their satisfaction.§ In accordance with this general
principle, the following year Verhulst*s successor, Pieter Minuit, purchased
Manhattan Island for sixty guilders.
43A Just and Modest Vindication of the Scots Design, for Having Established a Colony at Darien.
(N.P, 1699), 72每3.
44 Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge,
MA, 2005), 10每48.
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Law, Colonization, Legitimation, and the European Background 25
The Dutch may have preferred the idea of cessation because of religious
scruples and because their presence in America was always over-stretched.
The British had similar motives for denying their own official status as
conquerors. But they were also aware that a conqueror in the service of
a monarch could only ever be a subject and, at least by feudal contract,
a vassal. If, in contrast, the settlers had purchased their lands, they might
claim some measure of independence from the Crown or, where this applied,
from the proprietary holder of the colony. Understanding this concept,
Maryland*s proprietor declared all lands purchased from the Indians subject
to forfeiture.
Furthermore, if the colonists had purchased their lands or acquired them
through treaty, it followed that the indigenous peoples had been in legitimate
possession of them; otherwise the lands would not have been theirs to
sell. The English, insisted Edward Rawson in The Revolution in New England
Justified (1689), had ※purchased from the Natives their right to the soil in
that part of the world, not withstanding what right they had by virtue of
their charter from the kings of England.§ Rawson was a supporter of the
revolt against the Dominion of New England 每 to which the title of his
pamphlet refers. In the eyes of the colonists, one of the more heinous crimes
of the late governor, Edmund Andros, had been precisely to dissolve all land
claims based on what he called ※pretended purchases from the Indians§ on
the grounds that ※from the Indians no title can be Derived.§ If that action
were allowed to stand, a group of prominent Bostonians protested, ※no Man
was owner of a Foot of Land in all the Colony.§ As Rawson stressed elsewhere,
any attempt by the Crown to limit the rights to self-determination that the
English had acquired by ※venturing their lives overseas to enlarge the King*s
Dominions§ made them a conquered people, ※deprived of their English liberties
and in the same condition with the slaves in France or Turkey.§ In
1721, Jeremiah Dummer reiterated the same point. There could exist ※no
other right than that in which the honest New-England planters rely on
having purchased it with their money. The Indian title, therefore, as much
as it is decry*d and undervalued here, seems the only fair and just one.§45
If, however, America were a land of conquest and thus a part of the royal
demesne, any contract to dispose of any part of it between parties who were
both subjects of the Crown was necessarily invalid. In addition, even if
such purchases were considered to be merely private agreements they were,
as many subsequent historians have pointed out, generally fraudulent. At
least by implication, this was the point made by the Royal Proclamation
of 1763, which set out the principles of government for the lands acquired
by the British by the Treaty of Paris at the end of the Seven YearsWar.
45 Jeremiah. Dummer, A Defence of the New-England Charters (London, 1721), 14.
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26 Anthony Pagden
The purpose of the Proclamation was to bind the former New France
much more tightly to the Crown than the original English settlements
in North America. To achieve this objective the Crown was compelled to
limit the damage that might be inflicted upon Native American interests
by colonists* intrusions on their lands. Hence the Proclamation conferred
on what came to be called the ※Aboriginal Peoples of America§ a form
of ill-defined de iure nationhood that ceded a large measure of autonomy
to ※the several Nations or Tribes of Indians.§ The Proclamation accepted
that the Indians had use 每 but not true possession 每 of ※such Parts of our
Dominions and Territories as, not having been ceded to or purchased by
Us, are reserved to them, or any of them, as their Hunting Grounds.§ The
Proclamation also defined all the lands west of the Appalachians as ※under
our Sovereign Protection and Dominion for the use of the said Indians,§
and it forbade any future settlement there.46 This last injunction reinforced
the Treaty of Easton of 1758, which had prohibited any settlement west of
the Alleghenies. The bans were unworkable in practice, not least because the
Iroquois, the Cherokee, and the Creek all had ancestral lands to the east of
the line, while by 1763 there were already settlements from Virginia to the
west. The Proclamation line would become one of the principal grievances
leveled against the Crown by the colonists.
The Proclamation was not, however, merely an attempt to limit the
colonists* powers of acquisition. Nor was it an isolated case. In many ways
it can be seen as the final resolution to a legal dispute dating from the
1690s between the Mohegan nation and the government of Connecticut, to
which John Bulkley*s An Inquiry into the right of the aboriginal natives to land
in America had been a contribution. The Mohegans had argued that they
were a sovereign nation and, as such, could not be deprived of their lands by
the claim that they ※lack such thing as a civil Polity, nor [do they possess]
hardly any one of the circumstances essential to the existence of a state.§47 On
August 24, 1705, the Privy Council had decided in favor of the Mohegans.
Despite fierce lobbying from the colonists it reaffirmed the decision the
following year. Not until 1763, however, was the matter decided by a formal
royal decree intended to be irrevocable. The Proclamation has also had a
long subsequent history. It was incorporated into the British North America
Act of 1867 (now renamed the Constitution Act, 1867) and still forms the
basis for much of the dealing between the Canadian federal government and
Canada*s Aboriginal Peoples. As recently as 1982, Lord Denning declared
that the Proclamation was as binding today ※as if there had been included in
46W. P. M. Kennedy, ed. Documents of the Canadian Constitution (Toronto, 1918), 20.
47 J. H. Smith, Appeals to the Privy Council from the American Plantations (New York, 1950),
434.
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Law, Colonization, Legitimation, and the European Background 27
the statute a sentence: &The aboriginal peoples of Canada shall continue to
have all their rights and freedoms as recognized by the Royal Proclamation
of 1763*.§48
The Proclamation clearly intended to grant a measure of legal autonomy
to the Native Americans, as successive interpreters have supposed. But the
repeated references in the document to the ※sovereignty,§ ※protection,§ and
※dominion§ that the British Crown exercised across the whole of America,
north of New Spain, Florida, and California make it clear that this autonomy
was intended to be severely limited. The Indian ※nations§ may have been
self-governing communities with rights over their own ancestral lands. but
they certainly could make no claims to independence from His Majesty.
Indian rights did comprise the king*s seisin fee 每 legal ownership. The
Indians were perpetual tenants. They exercised, in effect, only what Marshall
later deemed, in Johnson v. M*Intosh, a ※right of occupancy§ 每 use, rather
than full property rights 每 because they lacked, in Marshall*s words, the
※ultimate dominion§ that had been granted to the ※nations of Europe . . . a
power to convey the soil, while yet in possession of the natives.§49 Similarly,
their political status was severely restricted by the presence of an ※ultimate§
form of jurisdiction that, in the Romanized formulation in which these
distinctions were made, was also conceived as a form of property 每 dominium
jurisdictionis. They were, in Bruce Clark*s words, ※sovereign in the same way
that the colonial government was sovereign 每 that is vested with a delimited
jurisdiction independent of all other governments except as against the
imperial government.§ It was only by assuming that the United States
had acquired the imperial authority formerly exercised by the Crown that
Marshall was able to make his famous and still authoritative ruling that the
Native American peoples constituted nations.
Although the Proclamation does not explicitly restate the rights of the
Crown through conquest, it does insist that, because ※great frauds and
abuses have been committed in purchasing lands of the Indians, to the
great prejudice of our interest, and to the great dissatisfaction of the said
Indians,§ all further purchases had to be made ※for Us in our name at some
public meeting or assembly of the said Indians.§50 They had therefore to
be a matter of public law, rather than private contract.
48 R. v. Secretary of State for Foreign & Commonwealth Affairs [1982] Law Rep. Q.B. 892, 914.
49 Johnson v. M*Intosh, U.S. (8 Wheaton), 574. Although the concept of a ※right of occupancy§
exists in Roman law, Stuart Banner argues that it only came into use in America after
independence and only gained currency with American lawyers in the early nineteenth
century. How the Indians Lost Their Land: Law and Power on the Frontier, 150每90.
50 The text of the Proclamation is printed inW. P. M. Kennedy, ed. Documents of the Canadian
Constitution, 20每1.
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28 Anthony Pagden
But the argument from purchase was too powerful to be disposed of so
easily. For, as Richard Price argued in 1776, if the lands of the settlers had
indeed been purchased and developed 每 and he was in no doubt that they
had 每 then, ※It is, therefore now on a double account their property, and no
power on earth can have any right to disturb them in the possession of it, or
to take from them, without their consent, any part of its produce.§51 Price
was a staunch defender of the cause of the American colonists during theWar
of Independence. His arguments, like Dummer*s before him, were intended
not only to clear the original settlers of the charge, which so many English
writers leveled against the Spanish, of illicit occupation on the basis of
conquest; they were also meant to give greater weight to the argument that
the colonies had been original and thus effectively independent foundations,
over which, in Dummer*s words, ※the English king could give . . . nothing
more than a bare right of preemption.§52 For the argument from purchase or
concession, backed by the claim to have ※improved§ the land, also gave
added force to the colonists* resistance to a government that had denied
them the right of representation in Parliament.
There was further advantage to any claim based on free sale or concession.
For if the colonists had acquired their lands through purchase or concession
from legitimate indigenous holders, they might also thereby evade the
monarch*s right to limit the movement of his subjects 每 the right of ne exeat
regno 每 which the monarch held under common law (and, many would argue,
under natural law). Later opponents of colonial rule, like Richard Bland,
whom Jefferson described as a ※most learned and logical man, profound in
constitutional law,§ would argue that in fact the colonies had been Lockean
foundations created like the first human societies, quite literally out of the
state of nature. ※When subjects are deprived of their civil rights, or are
dissatisfied with the place they hold in the community§, he wrote in 1766:
they have a natural right to quit the society of which they are members, and to retire
into another country. Now when men exercise this right of withdrawing themselves
from their country, they recover their natural freedom and independence; the jurisdiction
and sovereignty of the states they have quitted ceases; and if they unite,
and by common consent take possession of a new country and form themselves into
a political society, they become a sovereign state, independent of the state from
which they separated.53
51 ※Observations on the Nature of Civil Liberty, the Principles of Government, and the
Justice and Policy of theWar with America,§ in Richard Price, Political Writings, ed. D.
O. Thomas (Cambridge, 1991), 40.
52 Jeremiah Dummer, A Defence of the New-England Charters, 13.
53 An Enquiry into the Rights of the British Colonies (London, 1769), 12.
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Law, Colonization, Legitimation, and the European Background 29
Once established in their new country, their rights 每 which could only of
course, be natural rights 每 could be based only on terra nullius or purchase
or a combination of both. Only then would the settler population be in a
position to demand the same kind of sovereign rights that the Crown was
claiming to exercise on their behalf.
CONCLUSION
In the end, the prolonged dispute over the legality of the occupation of
America resolved itself into a dispute over the sources of sovereign authority.
Who, in other words, had the right to make the law, and on behalf of whom?
In 1776, Adam Smith complained that the rulers of Great Britain ※have
for more than a century past, amused the people with the imagination that
they possessed a great empire on the west side of the Atlantic. This empire,
however, has hitherto existed in imagination only. It has hitherto been not
an empire but the project of an empire.§54 As Smith had seen, the de facto
situation in the colonies, where every individual settlement enjoyed its own
peculiar rights, laws were made at a local level, and separate constitutions
and even separate semi-feudal hierarchies (think of the Carolinas with its
Caribbean Caciques, and Hanoverian Landgraves) might be established,
could hardly be an ※empire§ as the term was currently employed. This
※project of an empire§ had been brought into being largely because, unlike
the French or the Spanish, the English Crown had never had any clear
conception of what were the grounds for the occupation of the Americas.
As we have seen, the Crown had generally insisted that its colonies overseas
were lands of conquest, even though very few acts of conquest had actually
taken place. Under English common law, conquest made them integral parts
of the royal demesne and subject directly to royal command, not Parliament.
Logically the colonists were not, as was later claimed, represented ※virtually§
in Parliament; they were represented literally, just not in person but by the
※King in Parliament.§ Yet, its general jurisdictional claim put to one side,
the Crown not only made grants of lands to its subjects but it also permitted
those subjects to make their own laws 每 something that none of the other
European monarchies, all of whose colonies were governed by codes issued
in the metropolis, ever did. What this meant was that in practice, if never in
law, the Crown shared sovereignty with its settler populations. Much later
this would be transformed into a recognized principal of imperial law. After
centuries of struggle, sovereignty in Europe had become indivisible. But
54 An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R. H. Campbell and
A. S. Skinner, The Glasgow Edition of the Works and Correspondence of Adam Smith 2 vols.
(Oxford, 1976), II: 946每7.
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30 Anthony Pagden
beyond the frontiers of Europe 每 as Henry Sumner Maine, sometime Regius
Professor of Civil Law at Cambridge and Member of the Viceroy of India*s
Council, would declare in 1887 每 ※sovereignty has always been regarded as
divisible.§55 As Maine recognized, although the problem had never been
formulated as such, up until the end of the Seven Years War, this had
effectively been the practice in British North America. As an anonymous
contributor to the Pennsylvania Journal in March 1766 expressed it, ※In a
confederacy of States independent of each other yet united under one head,
such as I conceive the British empire at present to be, all the power of
legislation may subsist full and complete in each part, and the respective
legislatures be absolutely independent of each other.§
After 1763 when faced with a government determined to regain full
sovereignty over all its domains, both within the British Isles and overseas,
the American colonists turned to those arguments that, in natural rather
than civil law, could help them secure the survival of their de facto rights.
This demanded that they reexamine, and very substantially rewrite, the
early history of the original settlements. For questions as to how and by
what authority indigenous peoples had been deprived of what in natural law
was usually conceded to be their dominium would in the end determine not
so much the status of whatever remained of those peoples as the future legal
status of the English colonies and their inhabitants and, more important,
the status of what the successors to those colonies might be. For most of
the jurists who attempted to construct a convincing legal argument for
independence from the Crown, and for the early legislators of the new
republic, the task was to set aside the long-standing English argument
that America had been a land of conquest. To do this they turned to those
two other claims, discovery (as in terra nullius) and purchase or concession,
which had always appealed to the early colonists precisely because they
might provide rights in natural law, but had never, for that very same
reason, figured in the official legal languages of the metropolis. American
law was and is based upon English common law. But it should never be
forgotten that the early history of American law was marked by a struggle
for emancipation that also demanded a reconstruction of the relationship
between the Europeans and the Native Americans.
The English waited until the early eighteenth century before they began
to contemplate the awful possibility of separation from the mother country.
But the forms of government and the legal system in effect in the colonies
had from the beginning established a de facto independence that no other
55 International Law.Aseries of lectures delivered before the University of Cambridge 1887 (London:
John Murray, 1888), 55每7.
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Law, Colonization, Legitimation, and the European Background 31
European monarchy had permitted its settler populations. The entire subsequent
history of law in the United States, the fact that much of it remains to
this day closer to its English common law origins than the legal systems of
any of the other former European colonies in the Americas resemble theirs,
has its origins in their experience of de facto independence.
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the law of native americans, to 1815
katherine a. hermes
At the time of European contact with North America in the early sixteenth
century, Native Americans across the continent lived in a diversity of groups
characterized by highly varied governmental and family structures. Geography,
language, and economy affected the way in which these societies
understood law and formed legal institutions. It is not easy to cover in one
essay the many legalities and legal practices of Native American peoples
before their eventual designation as ※domestic dependent nations§ of the
United States in 1831, but it is possible 每 and perhaps more important 每
to show how their jurispractice changed as European colonization began to
alter their law.
No historian has ever attempted a narrative of indigenous American
jurisprudence. Indeed, until the 1970s it was difficult to find historians
who would even admit that Native Americans had something that was
identifiable as ※law§ in the way that Europeans use the term. By then,
discovery narratives had begun to give way to neo-conquest analyses that
stressed the brutality of European behavior and the often fatal biological
consequences of European occupation of the Americas after 1492. However,
until the cross-cultural encounter narratives of the 1990s began to appear
it was difficult to find anything in the historical literature that seriously
suggested that pre-contact American Indians possessed laws, much less had
structures and systems. Even though legal anthropology had begun to have
significant effects on legal history by the 1980s, the historical narrative of
Native American jurispractices for the centuries prior to Chief Justice John
Marshall*s ※Indian§ trilogy seemed more or less immune from its influence.1
It is safe to say that before the mid-eighteenth century there was no Native
American jurisprudence, either in a pan-Indian sense or among the tribes,
1 Johnson v. M*Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1830);
Worcester v. Georgia, 31 U.S. 515 (1832).
32
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The Law of Native Americans, to 1815 33
nations, and confederacies that made up the various governments of indigenous
people. But if jurisprudence is the philosophy of law, and if law itself is
interwoven, sometimes inextricably, with morality, custom, or other means
to force people to act in ways they would not otherwise choose, American
Indians certainly possessed law. They may have had no way in which to
disperse and debate philosophical principles, but they shared certain concepts
that created a legal mentalit´e 每 what I here call ※jurispractice§ 每 that
evolved as an indigenous way of acting legally, both within indigenous societies
and among them, and that could, after European settlement, be communicated
to colonial authorities whose systems were different. Indigenous
jurispractices were founded on expectations of people that were not subject
to arbitrariness or to change without formal discussion. They encompassed
mechanisms for resolving disputes that were time-honored and consistent.
They remedied wrongs, through restitution or punishment, in ways that
were bound by rule. Deviation from these rules evoked objections from
those who considered them unalterable.
Some colonists understood that Indians had law. Others did not. Most
European colonial regimes, however, gave some measure of acknowledgment
to Indian expectations that seemed to them ※legal,§ or as custom that
had to be enforced. What historians know of Native American law before
1750 comes filtered largely through European sources. The Spanish in the
southwest developed a system of imposing court days and elections on the
Indians they conquered, but southwestern Indians dispensed justice in a way
that combined Spanish process with Indian substance. They may have been
forced to use the trappings of Spanish procedure to hold their courts, but
the justice provided within was probably traditional. Modification would
follow as Spanish law became known and understood. In New France, Jesuit
missionaries frequently analogized Indian law to the old Germanic or Salic
law, referring to Indian payments of wampumpeag for restitution as wergeld.
But the Jesuits understood that they could not deduce Indian law by these
means. Puritan authorities in the English colonies, meanwhile, held Indian
law to resemble that of their primitive ancestors or as related to their own
understandings of justice.
Whether or not Europeans were interested in Indian jurispractice did
not matter to Native Americans, who tried to make known their own
expectations, even in colonial courts. By the eighteenth century some Indians,
usually Christians, had become literate enough to produce works that
detailed their own peoples* customs, but often these writers did not use the
language of law or of legal systems as much as that of custom and government.
Whether this was an outgrowth of a Europeanized view that they
had adopted or a matter of deliberate choice is hard to say.
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34 Katherine A. Hermes
Overall, what emerges from all these sources is an imperfect picture of
Native American jurispractice, but one that is nevertheless quite recognizable
as law.
Tracing the evolution of jurispractice during the period after contact with
Europeans requires recognition of several fundamental realities. First, there
were many levels of contact. The 500 or more Native American tribes and
nations that existed at the time of contact were not homogeneous. All had
laws particular to their cultures that may or may not have been shared with
others, even nearby native communities. Second, several layers of European
and colonial government came first to interact with and then to overlie
the heterogeneous sovereign entities of the tribes themselves. By 1815, the
native peoples residing in the area of the modern United States had been
subjected to the law of Spain, of France, and of England; to the law of the
colonies and subsequently states that formed around them; to the law of
the United States under the Articles of Confederation; and lastly to the
law of the United States under the Constitution of 1787. As if these many
entities, each claiming sovereignty or at least some degree of dominion
over the native peoples in their territories, were not enough, the process of
colonization itself created a divide between types of Indians that affected
which law applied to them. Native peoples who maintained themselves in
autonomous Indian communities retained a measure of self-government;
in theory this distinguished them from individual Indians who lived in
colonial towns and who therefore were under some form of colonial law.
To understand the effect of contact on Indian jurispractice through the
early nineteenth century 每 arguably one of the most complex legal periods of
American and U.S. history 每 one must recognize three premises that acted
both alternately and, occasionally, simultaneously on Native American law.
The first was the belief held by Indians that their law was in their control.
This premise was entirely true for the pre-contact period and often true
thereafter. The second was the belief held by colonists, and later by federal
and state officials, that Indians had only partial control of their law because
Anglo-European law always trumped native law whenever they met. The
third was an ideal on the part of Anglo-Europeans, shared as a belief by
Indians, that justice should be accorded to Native Americans in the same
way it was to whites. Despite the apparent accord on the matter, this third
premise was problematic because so often native perceptions of justice were
simply not the same as those of the colonists or the later federal government.
Most native ideas of justice entailed some sort of reciprocity, which often
took the form of a gift exchange, so that neither side would be bitter at the
result.
Some differences that arose in the contact period between colonists and
Indians could be resolved out of court, but most 每 for example, disputes
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The Law of Native Americans, to 1815 35
over boundary lines, fencing, and animal trespass 每 could not. Communities
in which mediation was a familiar legal mechanism for resolving disputes
could implement the native idea of justice as reciprocity. Mostly, however,
disputes were resolved antagonistically. The adversarial system of British
law in particular resulted in great dissatisfaction for the Indians. Where law
failed to be the mediating factor, trade became the sole ※middle ground§
between Europeans and Indians. Indians who violated European legal norms
in the post-contact period were frequently viewed by colonists as military
enemies.
In the North Atlantic colonial world, Native Americans and European
colonists negotiated the terms of the law that would exist in the space they
co-inhabited. Each had their own laws that they followed in the spaces they
did not share.2 There were, consequently, multiple legalities in the colonized
North Atlantic world. But most overlapped, for the different peoples
could not inhabit entirely separate spheres.3 Most of these coexisting legalities
were found among native peoples, although not exclusively, because
European regimes also differed among themselves, not only by national
origin but by the particular colonial objectives of the settlers. The interpenetration
of jurispractice among Native Americans was, however, complicated
by circumstances that did not particularly confront Europeans 每
namely, the repeated ethnogenesis that tribes were forced to undergo as they
attempted to make new social entities from what remained after disease,
warfare, poverty, and trauma had all taken their toll. Rents and repairs in
the social fabric supporting jurispractice were not the sole factor in the
erosion of negotiated legal power sharing after contact. Cultural fusion or
cultural hybridization, both forms of ethnogenesis, created new political
identities necessary for the groups* survival. In tribes whose composition
changed, laws had to be renegotiated and legal customs altered.
Over time, the possibility of maintaining some form of mutual creolized
law in North America disintegrated. Although it is easy to attribute this
disintegration largely to sheer power imbalances that favored the Europeans,
the answer is not that simple. The mere existence of power imbalances did
not mean that domination would necessarily result. Several cultural factors
2 I refer to ※space§ and not territory, because the concept of territorial jurisdiction is
problematic for Native Americans, as discussed below.
3 ※Legality [refers to] meanings, sources of authority, and cultural practices that are commonly
recognized as legal, regardless of who employs them or for what ends.We conceive
of legality as an emergent structure of social life that manifests itself in diverse places,
including but not limited to formal institutional settings. Legality operates as both an
interpretative framework and a set of resources with which and through which the social
world is constituted.§ Patricia Ewick and Susan Silbey. The Common Place of Law: Stories
from Everyday Life (Chicago, 1998), 22每3.
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36 Katherine A. Hermes
in the European world had a bearing on the shift. First, even as the number
of Indians decreased, settlers* fear of them grew. The legal culture
of the English settlements, meanwhile, became generally less hospitable
to Native Americans as it became more ※English§; as the common law
ascended, English legalities became more adversarial, more formal, and
less equitable. In addition, changes among the Indian population altered
their participation in the system they helped create. Some Native Americans
became increasingly hostile to Europeans and rejected cooperation
altogether. Other Native Americans opted for accommodation or assimilation
and began using the colonial court systems without the protections,
demands, or special processes they had once reserved fo,r themselves. Among
those who adapted to European ways there were gendered divisions in the
use of laws and legal procedures. Women, perhaps because they tended to
become domestic servants if they lived among colonists, sometimes saw
European legal practices as expeditious, such as the writing of wills to
transfer property and ensure inheritance. Men, in contrast, especially as
time went on, became suspicious of European legal instruments that had
so often proved deceptive, such as land deeds.
Europeans, meanwhile, used their opportunities to dominate in ways that
were not merely oppressive but might be described as casually abusive. The
rules shifted from one town to the next and across colony lines. They were
insisted on at some times, but not at others. Overall, European legalities
were simply unpredictable. It became impossible for Native Americans to
guess which protocols and processes might be required in colonial courts
or when they had to resort to them, making it very difficult to maintain
standing or to operate at all effectively within two separate yet overlapping
spheres of jurispractice.
One final factor must be mentioned before embarking on the story of
Native American law and of how a negotiated realm of jurispractice arose
and fell in North America as divergent legal ideas vied for space. It is crucial
to touch on the effect of this evolutionary process on Anglo-American or
U.S. law. The idea that Native Americans contributed anything to Anglo-
American or U.S. law is hotly contested among scholars. Although it is
a truism that in cross-cultural encounters neither side remains unchanged
by the other, this does not mean that every aspect of one culture will be
influenced by the other. Nevertheless, there are legal practices that historians
and anthropologists, and even eighteenth-century contemporaries, suggest
might have come to the present from the indigenous past in America.
When Sarah Kemble Knight, a female traveler who in 1704 wondered in
her journal whether the New England Indian custom of casually casting
away one*s spouse might be responsible for the high rate of divorce among
couples in Connecticut, she was not without grounds for her speculations.
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The Law of Native Americans, to 1815 37
When modern historians suggest that the Iroquois Confederacy might have
contributed to the conception of a U.S. federal government, they should not
be taken lightly. No conclusive proof of direct adoption from Native law
to European law exists at the present time, but among scholars the inquiry
has only just begun in earnest.
I. FROM THE BEGINNING: THE LANGUAGE, STRUCTURES,
AND PRINCIPLES OF NATIVE AMERICAN LAW
In separating certain periods from others, pre-contact from contact, colonial
from post-Constitutional, one must bear in mind that at no time was the
law of Native America institutionally stagnant. When one looks at precontact
law and considers native traditions and how they were changed by
contact, it is imperative to recognize that these legal systems would have
changed in any case. Most native legal systems in North America were quite
flexible. Like many systems that use custom to judge present cases, and this
included Anglo-American legal systems, the good of the community as it
stands weighed on the minds of those judging the case at hand. Throughout
native North America, whether the system was based on the use of councils
who adjudicated disputes or dependent on a paramount chief who decided
matters in consultation with his advisors, law was personal. In face-to-face
communities, no judgment was distanced from the people who wanted a
resolution.
Before 1815, the Native Americans who lived within what would become
the borders of the United States 每 east of the Mississippi River, south into
Florida and Louisiana, north to the Canadian line, and along the Atlantic
seaboard 每 were mainly of five general linguistic groups: Algonquian, Iroquois,
Sioux, Inuit, and Muskhogean. These linguistic groups were not
determinative of culture per se. Those who lived in the eastern woodlands,
whether Algonquian or Siouan, had more in common than those who lived in
the interior, in the Great Lakes region, or in the southeastern area below the
Chesapeake. Nevertheless, language and law are intertwined, for language
gives life to legal concepts. Social groupings also affect jurisdiction; that is,
the right to claim power over territory, persons, or certain objects or subjects.
Where the usual social grouping was the clan, owing some allegiance
to a chief but living apart from a central chiefdom, law was institutionally
less structured than in societies that had constructed confederacies of
many tribal nations. Several such confederacies existed in North America
in the period just before contact with Europeans. The most notable were
the Powhatan Confederacy of the Chesapeake, the Iroquois Confederacy of
the Great Lakes region, the Appalachian Confederacy, and the Cherokee
Confederation of the Southeast.
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38 Katherine A. Hermes
The first visitors from Europe reported almost universally that they had
found a people without laws. Visitors friendly to the natives accorded them
a knowledge of the law of nature, but no system; for example, the Jesuit
missionary Jean de Br´ebeuf described the Huron as ※not without laws§
and left a description of their system of punishment, which noted that
they punished murderers according to a four-step ritual, with a specific
incantation for each step. Skeptics believed them to be completely lawless.
Another Jesuit, Paul Le Jeune, held that loyalty to a chief was the only reason
the Montaignes were constrained from killing one another. ※[T]he Indians
have neither civil regulation, nor administrative offices, nor dignitaries, nor
any positions of command,§ he wrote.4
A few reformers guessed that there had once been a legal system among
natives, but that it had been destroyed. In a 1553 letter to Charles V, Louis de
Le´on Romano, an administrator of the viceroyalty of New Spain, described
native society as ※without order and governance whatever.§ Yet, Romano
insisted this was ※because the system of government has been turned so
much to the opposite of what it once was. For the sort of people they are,
their former system of government was the best that ever [a] nation had,
except for the salvation of their souls.§ Indeed, the indigenous people in
North America did have laws and legal systems, just as they had religious
beliefs and practices that were also invisible to many European observers.
Some systems were more complex than others. Their languages demonstrate
some of the legal concepts Native Americans held, though one cannot
infer too much from the existence of a word if there is no evidence as to what
natives really understood it to mean. (Frequently, that evidence is missing.)
The Algonquians had certain words that signified the practice of law. The
root ※tepa§ or ※tipa§ combined with ※wa,§ ※wew,§ or ※kew§ meant judging
or measuring something; it could even mean to control. That this word for
judge probably had some legal meaning can be inferred from the words that
surround it: in Cree, an Algonquian language, the expression ※tipeyeimew§
meant ※he rules over him.§ In Nahuatl there were words to express such
technical and complex ideas as land and water rights, as well as words for
many types of rulers. The Nahuatl word ※altepetl§ expressed the idea of
※city-state.§ The Muskhogean tribes include, among others, the Choctaw,
Creeks, Chickasaws, Seminoles, and Apalachi. The Cherokee, who would
be recognized by Europeans as one of the ※Five Civilized Tribes,§ spoke
an Iroquois dialect. Whether the Cherokee linguistic difference had any
enabling effect on their later development of an alphabet and a constitution
is a matter for speculation, but the Iroquois language and culture seem to
have facilitated certain political associations.
4 Br´ebeuf, Jesuit Relations, 10: 210每35; Le Jeune, Jesuit Relations, 6:228每35.
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The Law of Native Americans, to 1815 39
The Confederacies make up an important part of the legal landscape
for native North America. At first viewed by historians primarily as political
entities, the confederacies are currently seen as economic and military
alliances. They were also entities that maintained legal structures and
enforced legal customs among their members. Among the eastern tribal
nations such alliances were common, both as a means of protection and
a system of tribute. The first alliance encountered by Europeans was the
Iroquois Confederacy, formed about 1390, which consisted of five nations:
the Seneca, Oneida, Mohawk, Cayuga, and Onondaga. The Iroquois Confederacy
spread across the Ohio Valley, up toward the Great Lakes, and into
the St. Lawrence River Valley around present-day Quebec. In 1715, the
Tuscaroras of Virginia moved northward and joined the Iroquois Confederacy
when English settlement across the Blue Ridge Mountains made it too
difficult to remain in that region.
The Iroquois Confederacy had a very distinct system of law when compared
with other eastern cultures. The confederacy itself was a diplomatic
and military bond, which later evolved into an economic unit as well. The
Iroquois depended on frequent meetings, spending considerable time in
council. Groupings for council were determined by locality, sex, age, and
the specific question at hand. Each had its own protocol and devices for
gaining consensus.
The Hurons, like most northern Indians, also made decisions by council.
In some villages the council met daily. There were a set of elders who
garnered respect at these meetings, but the forums were open. Huron councils
exerted little control over individuals, beyond what was necessary to
keep social order. The councils had a formal protocol, and even the oratory
was procedural, with each speaker summarizing the issue and arguments
of the previous speaker. In a non-literate society, this method could have
been a means to ensure that everyone understood the issues and arguments;
listening was an essential quality. Br´ebeuf admired the practice, which he
thought gave clarity to the proceedings and made it easy for a stranger to
understand what was going on.
Whatever structure of legal decision making was in place, the most
important legal concept among Native Americans was the principle of
reciprocity. Reciprocity was first recognized as a principle common among
native peoples by early twentieth- century anthropologists, although somewhat
anachronistically and without any historical particularism. In fact, the
principle had important variations among Native Americans in the colonial
period. Moreover, although it is true that the principle of reciprocity was
used in other areas of society, from religion to economics, its use as a legal
principle was particularly distinctive among the several tribes, nations, and
confederacies.
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40 Katherine A. Hermes
For the native peoples, the practice of give-and-take transcended legal
boundaries and existed as an economic and social value. In the legal realm,
however, it meant that reparation could be made for wrongdoing. It also
meant that, when a wrong occurred, all parties took away something so
that, in most cases, no one bore the entire burden of the legal infraction.
Europeans found Indian legal customs unfathomable when they observed
such processes at work, but they also accepted that the core value of reciprocity
corresponded to their own systems of law. For Puritans and legal
reformers in New England, the value in reciprocity was that it allowed the
law to be a mediator between parties rather than an adversarial tool. For
the French and the Dutch, both of which had civil law rather than common
law systems, justice was less about moral absolutes and more about fairness.
Thus, in the period of contact, from about 1600 to 1675, all four interacting
legal systems were operating on an assumption that justice could be and
should be equal between all parties.
An example of reciprocity in native jurispractice was the concept of restitution
for harm. In the current Anglo-American system of law, tort law and
criminal law present two different types of legal redress for dealing with
harm.We now think of the state as the complaining party in criminal cases,
though even in England in the seventeenth century, individuals could bring
private criminal prosecutions. In Indian North America few tribal nations
had a concept that distinguished between criminal and civil offenses as
precisely as English law, but most had a system that involved the group
in seeking redress for the individual and determining whether both the
individual and the group needed compensation for the harm. The concept
of harm to the group, even for an action against an individual, was commonplace.
The means of settling the matter between the offending parties,
also defined according to complex norms involving ideas about who was
responsible 每 chief and tribe or individual 每 differed from region to region.
At the core, however, was a strong belief common to most societies that
harm to an individual member was harm to all and that the individual
should not have to face his victimization alone. Leaders offered communal
protection.
Embodying the principle of reciprocity, in most Indian communities a
designated person served as peacemaker, a type of mediator who was well
versed in community norms and knew how to restore harmony. The role
of the peacemaker was critical to the community. In the Iroquois nations,
peacemakers were part of the formal judicial system. In the southwest, they
tended to have less formal roles, being chosen by the parties rather than as
part of the formal process.
The Iroquois believed in a system of law that the Jesuits who first encountered
them described, as we have seen, as analogous to wergeld, the ancient
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The Law of Native Americans, to 1815 41
German law that exacted material goods for wrongs. To modern eyes, the
distinction between tort law and criminal law seems blurred by the Iroquois,
and it is easy to assume that they had no distinction between a crime
against the state, as it were, and a personal injury. In fact that was not
the case. The payments that could be demanded depended very much on
whether the transgression was against an individual or the tribe as a community.
The homicide of a sachem brought warfare and sanctions against
the people from whom the killer came, whether a clan within the same
tribe or another nation. If another nation was involved, captives taken from
the wrongdoer*s people were either tortured and killed or adopted into the
avenging tribe. This practice, known as the mourning war, became more
prevalent as time went on, compensating the tribe that had been victimized
not only for murder but also for losses from disease, warfare, or hardship
once the Europeans settled in North America.
Other wrongs, such as the killing of a person by accident or negligence,
or a theft of a valuable item, were punished by demanding payment of some
kind in relation to the level of harm done. Furs and other goods such as
wampumbelts from the coast compensated victims. Usually a council set the
payment, and if there was any dispute between the parties as to the justice
of the demanded amount, it would become the subject of negotiation.
Yet, the Iroquois legal system was not wergeld in any strict sense. That was
merely the closest European analogy the Jesuits could think of. Priests and
travelers described a system of rules that carried specific penalties for specific
wrongs. Elaborate rules governed behavior, but the principle that dictated
most judgments was reciprocity. Justice was usually satisfied by putting the
world back in balance. Yet, the Iroquois went further than many eastern
woodland tribes in their scale of punishments. They included torture as a
legitimate punishment, something most Algonquian tribes did not.
Jean de Br´ebeuf*s 1636 Relation gives us perhaps the fullest account of
the government of the Hurons. Br´ebeuf was familiar with the laws of many
civilizations, including the Chinese and Japanese, with whom the Jesuits
had missions, and so he had a basis for comparison outside European law.
He thought the Huron primitive, but not without civilization. The system
he described eschewed private vengeance but punished wrongdoers.
Vengeance, he remarked, was the ※blackest§ crime, even worse than murder.
The rule of law could never be thwarted without incurring terrible
punishments. Br´ebeuf commented that the Indians of his time were not
as strict against murderers as in former times, suggesting that the death
penalty was once exacted on murderers. The relative of a murdered person
brought the prosecution to the village of the alleged killer. The family was
paid in gifts, sixty to be precise. Each series of presents had meaning and
was apparently stipulated by law. The ritual was designed to restore peace
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42 Katherine A. Hermes
to the country, an exchange that required the ※guilty§ party to give back, in
a sense, what was taken from the group that lost a member, thereby eliminating
the need to exact vengeance. If Br´ebeuf was correct, what modern
lawyers would now call the penalty or sentencing phase of a trial was more
important than the proof of a person*s guilt or innocence. In earlier, harsher
times, the murderer was forced to stand beneath the body of the slain person,
where he had to endure the experience of having the corpse release its fluids
onto him and into his food. This practice seems to have faded by 1636.
Even as late as the nineteenth century, the prohibition against vengeance
still functioned, particularly if the murderer was within the kin group of
the victim.
In their encounters with the Indians, the Jesuits did not perceive that
the ritualized system of restitution in lieu of vengeance corresponded with
any pressing need to curb deviant behavior; they actually found very little
crime among the Indians, as Europeans defined it. The principle was an
overarching one, applying not only to transgressions within the Huron
tribe but also to their relations with other tribes. The Huron had rules for
intertribal relations that covered such matters as trade routes. Their rules
also extended to intertribal transgressions. If one tribe or a person under
the tribe*s jurisdiction committed a wrong against a person in another
tribe and would not make restitution, this constituted grounds for war.
During war, according to Br´ebeuf, both torture and ritual cannibalism were
permissible.5
The power to restore balance in a complex society riven at times by
transgressions against individuals or groups is but one of the powers we may
recognize as inherent in the right to govern. In all societies with any kind of
ruling power, there is a way in which that power asserts its right to govern.
The claim may be the right to exercise authority over territory, persons, or
certain subject matters, but having jurisdiction, whether formally used as a
concept or not, means the right to impose rule over some place, some one, or
something, and occasionally all of these. Although jurisdiction and tribute
were not the same phenomenon, one finds hierarchical power expressed in
native North America through the system of tribute.
Tribute was a form of payment by one tribe or clan to a higher political
authority. It was a way of recognizing superior authority, whether that was
an authority won by conquest or as a means of mutual diplomacy. The
tribute system predated contact, but Native Americans adapted it to meet
the changing post-contact world. In pre-contact native societies the system
of tribute affected many people, from the highly organized and militarily
powerful system established by the Aztec Empire to the smaller systems
5 Br´ebeuf, Jesuit Relations, 10: 210每261.
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The Law of Native Americans, to 1815 43
of control among tribal nations elsewhere. When the Pequot controlled
the wampum trade, the small tribes along the Connecticut River paid
them tribute. After the ruinous war of 1637, the Pequot paid tribute to
the Mohegan sachem, Uncas, or to the Connecticut colonial government,
depending on who offered protection. Tribute might be paid in gold and
precious metal in the southwest or, depending on where one lived, in maize,
wampum, or skins.
The system of tribute and jurisdiction could go hand in hand; that is,
a person who exacted tribute might at times claim jurisdiction over that
people, but at other times not. Just as often, nations exacting tribute left
governance and jurisdiction to the local chief or leader. At the time of contact
in North America, the primary eastern groups that would encounter
the European colonists, such as the Powhatan Confederacy of Tsenacommacah
(now Virginia), were organized as tribute systems. The Powhatans,
under their paramount chief by the same name, controlled Algonquian-,
Siouan-, and Iroquoian-speaking peoples in the Chesapeake region as far
as the Appalachians. In the Powhatan system tribute and jurisdiction were
intertwined but not inseparable. For example, Powhatan claimed to the
English that he did not have the authority to punish wrongdoers from his
tributaries. If the English had problems with members of a confederate
tribe, they had to take it up with the tribe*s werowance, or chief.
Just as Native American personal jurisdiction mystified Europeans, territorial
jurisdiction appeared to colonists as nonexistent outside of confederacies.
Historians frequently blame this problem on the different understandings
held by Indians and Europeans regarding possession of the land.
We must also distinguish between Indians* views of jurisdiction and their
view of property. Territorial boundaries were well known among the tribes,
nations, and confederacies and sometimes were contested. There was no
unfettered movement between lands, and chiefs had some sense of control
over territory. If a problem occurred within their territory, chiefs were
more likely to hand over the transgressors to their own tribal leaders. Yet,
there was no property ownership, as Europeans understood it, among most
Native American peoples of North America. Typically, before colonization
and in the period immediately following it, most Indians followed a law
of usufruct that enabled them to use land for various purposes, such as
farming, hunting, and maintaining a dwelling.
Alden Vaughan, sometimes viewed as an apologist for the Puritans in
their interactions with Native Americans, argues that Algonquians resented
colonial rules and colonial courts from the beginning, but he identifies this
claim with the Indians* resentment of land acquisitions. It is necessary
to differentiate between the early willingness of Algonquians to try to
reach understandings with the colonists on matters of law and their later
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44 Katherine A. Hermes
realization of the damage done by the colonists* insatiable hunger for land.
The majority of Algonquians who faced the colonists* Christianizing efforts
from 1650 to 1750 adopted the same line of resistance: they preferred to
live as their fathers and grandfathers had lived. Land was at the heart of
this conflict, not law. The Algonquian tribes before 1675 had shown a
willingness to compromise on legal procedures to facilitate good relations
with the colonists, and their willingness had been reciprocated by various
colonial governments. As Yasuhide Kawashima has shown, King Philip*s
War in 1675, in part the violent reaction to a legal decision in a murder
trial that resulted in the hanging deaths of three Wampanoags for the
death of a Christianized Indian, marked the end of attempts at mutual
accommodation. The war was a turning point in legal relations, as in all
other interactions in southeastern New England.
II. RECIPROCITY AND TRADE AS LEGAL MEDIATORS
IN THE COLONIAL WORLD
When the Pilgrims landed at Plymouth Rock in the winter of 1620, they
were greeted by an English-speaking Native American whose name they
rendered as ※Samoset.§ He in turn brought them another Indian whose
command of English was even better. Tisquantum, otherwise known as
Squanto, had been to England, taken there by men who had been fishing
and trading in the Northern Atlantic regions of North America long before
there was any colony at Plymouth. Tisquantum introduced the Pilgrims to
the powerfulWampanoag sachem, Massasoit, who shortly thereafter signed
a treaty with them. Thus began the legal history of native and English
contact, the interplay of jurisdiction and jurispractice on both sides, and
the resultant creation of a new and fragile legal space 每 a kind of international
law and domestic law all at once, in which dramatically different cultures
struggled for fairness and justice. These goals often eluded them, but not
always. Indeed, it is worth remarking on those instances where the law was
both formed and followed, for there is something almost incredible about
this part of the story 每 not often told and even less frequently believed. The
history of violence almost always obscures the history of mediation through
law. Indeed, historians most often see law as a means to do violence 每 a tool
of oppression rather than a forum to reach common ground. Colonization
was an inherently violent process, but it was ameliorated by the nature of
legal compromise and creation that took place over two centuries.
In the period of contact, from about 1600 to 1675, interactions between
indigenous and European legal systems operated on the assumption that
justice could be and should be equal between all parties. The compromise
and creation that occurred in the shared legal landscape after contact can
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The Law of Native Americans, to 1815 45
best be illustrated with an analysis of jurisdiction in New England. Of
the three types of jurisdiction recognized by English law 每 territorial, personal,
and subject matter 每 the Algonquian tribes of the region subscribed
to practices akin only to the second and third. The chiefs of the various
tribes, whether they were called sachems, sagamores, or werowances, exercised
a varying degree of personal jurisdiction over members of their tribes.
Depending on their alliances with other tribes, the chiefs might also have
certain responsibilities to decide particular issues. In their interaction with
Europeans, Indians almost never accorded jurisdiction over their persons
to colonial governments. Intra-indigenous disputes could not be settled in
English courts just as intra-colonial disputes could not be settled by native
authorities. This rule was observed more or less rigorously.
The eastern Algonquians, such as theWampanoags, actively shaped the
nature of personal jurisdiction exercised over tribal members by Indian and
colonial governments in the first decades of colonization of New England.
They decided by protocol, agreement, or individual volition whether to
appear in colonial courts. For example, the agreement signed by Massasoit
provided that anyWampanoag who harmed the English would appear in a
colonial court. This agreement would have fatal consequences half a century
after it was made. Only in cases of murder of a colonist would a colonial
court ※fetch§ an Indian without consent, and then only after his sachem was
unable to persuade the accused to appear. Sometimes individual Indians
appear to have acquiesced to pressure from tribal councils to confess to a
crime against the colonists, because they were convinced that it was in the
best interests of the tribe. In the Algonquian worldview, trading one man*s
life for peace with the colonists was the ultimate act of reciprocity. The
exercise of Indian jurisdiction over the persons of colonists is less clear. It
may be argued that the use by some New England colonial courts of mixed
juries composed of Indians and colonists in certain intra-group homicide
cases constituted a cession of personal jurisdiction. Indians did not keep
records, and although there are stories that Indians subjected Europeans
to native processes for transgressions within their own tribal lands, it is
doubtful that this was a common practice.
In negotiating the legal space we now call ※subject matter jurisdiction§
the Algonquian position was very clear. They insisted that Europeans
take jurisdiction over the troubles they brought with them, namely, alcohol,
guns, and livestock. What historians have often mistaken as colonial
usurpation of power over the persons of Native Americans was actually the
demand by tribes that colonists fix the problems that they created. The
appearance of Native Americans in colonial courts before 1675 did not
signify a loss of autonomy; it was, in fact, the opposite. They came with
explicit requests for justice.
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46 Katherine A. Hermes
The year 1675 is a well-recognized watershed in relations between
Indians and Europeans because it marks the start of King Philip*s War,
a conflict between the tribes of southern New England and the English that
spread as far as the borders of New France. It is no coincidence that it was a
legal spark that ignited the war, one that included issues of trial methods,
punishment, and jurisdiction. The war shattered the relative stability of the
negotiated legal sphere. After 1675, Algonquian jurisdictional autonomy
as it had developed over the decades ended abruptly. Algonquians were
reduced to exercising jurisdiction over themselves at English sufferance, on
reservation lands set aside for them.
This seventeenth-century jurisdictional picture is complicated by the
conversion of Indians to Christianity and the creation of segregated ※praying
towns§ in New England. Both the French and the English established
separate towns for Indians who converted to Christianity, suggesting that
Indians and Europeans each had reasons for preferring segregation between
traditionalists and converts. Yet, New England convert towns took on a
character quite distinct from those of the French, and there has been debate
about whether English ※praying towns,§ as they were known, were actually
the first reservations. Praying Indians of New England developed hybrid
laws and governmental structures that reflected colonial values, but in distinctly
Algonquian ways. They held their own courts, which in the seventeenth
century were presided over most frequently by Indian magistrates.
Men such as Waban at Natick, Massachusetts, sat as magistrates in judgment
of their fellow Christian Indians. The praying Indians voted for their
selectmen, usually by holding up their hands, at town meetings. Fraudulent
elections of selectmen sometimes occurred when white settlers hoodwinked
Indian inhabitants by using paper ballots, but the paternalism of the colonial
governments and the overseers often resulted in the overturning of such
results. Natick Indians learned to keep written records in a transliterated
version of their language. Eventually, after King Philip*sWar instilled fear
of all Indians into the colonists, colonial authorities began to replace Indian
magistrates with colonial overseers.
Throughout the eighteenth century the personal jurisdiction that had
been crucial to Algonquians before King Philip*sWar eroded even further.
Deeply in debt to colonists, the praying Indians petitioned colonial governments
to give them ※the rights of Englishmen,§ which amounted to the
right to sell off common lands to pay what they owed. In this respect, the
praying Indians ended up in much the same position as their non-Christian
brethren. Although colonial governments* general desire was to protect
the Indian inhabitants of the praying towns, the substance of that protection
was frequently questionable in its benefits, for the governments also
responded to pressure from their own constituents. Native peoples were
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The Law of Native Americans, to 1815 47
caught in an unhappy middle, heavily indebted to European neighbors and
in some cases signing away land to avoid going to jail for debt after being
sued in colonial courts. This cession of territory sealed their jurisdictional
fate in the minds of the colonial government, which equated territory with
governing power.
The mediated jurisdictional space of early colonial New England, built
on shared principles of reciprocity and justice, had been destroyed by war.
Its history nevertheless offers a slightly different picture than that which
emerges from the Chesapeake area, where trade networks rather than principles
of fairness were the legal mediators. In that space, acts of war had a
different role.
In general, the Chesapeake colonies rarely brought Indians to court except
to have their ages confirmed as servants or slaves or to punish those already
in bondage for running away. Few instances of violent crime were treated as
individual crimes. What might have been called murder in New England
was usually an act of war or petit treason in the Chesapeake. Thus, the
jurispractice of Indians eroded much more quickly in the Chesapeake, where
it was given much less chance of creating a hybrid colonial legal space. After
the early wars of 1622每5 and 1644, Indians either lived on the periphery of
Chesapeake society, and outside of its court system, or in bondage within it.
Yet, Native Americans fared better than the other subjected culture in the
Chesapeake, the Africans. The tripartite racial community of the Chesapeake
created a hierarchy of races in which Indians occupied a precarious middle
station.
Although the courts in the Chesapeake tended to treat unfree Indians
much as they would unfree Africans, free Indians received better treatment
by the courts than free Africans. All of the major remaining tribes in
Virginia, for example, were able to assert successful claims for reservation
lands during the seventeenth and eighteenth centuries. Indians also went
to the county courts for redress when colonists assaulted them or stole from
them. Indians could prevail in these cases, and frequently reparations were
ordered paid to Indian victims. Nonetheless, there were clearly differences
in the treatment of white men and Indians in the courts. When, for example,
an Indian from a Virginia Indian town was killed by a group of servants
belonging to an Englishman, the master of the servants was ordered to
pay money to the Indian town, and the servants had their time on indentures
extended. The payment of money was not necessarily an insult to the
Indians, who traditionally had compensated victims of homicide in just
such a way, but the colonists did not view it as following any principle of
reciprocity. It was merely a way to keep peace.
Trade networks rather than the courts were the usual venues of settling
disputes between the majority of Indians and settlers in the Chesapeake.
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48 Katherine A. Hermes
Indians in Virginia tended to live in Indian towns within the colony, which
were not like the praying towns of New England but more like reservations
with semi-autonomous government. Others lived on the frontier itself in
their own societal configurations. With each succeeding generation, they
moved further westward. Dispute resolution was usually part of a treatymaking
process if it was peaceful or a battle if it was not.
Even when traders tried to take Indians to court for such matters as
bad debts, the Virginia legislature stepped in to forbid it. Traders were
expected to treat the Indians well, but it was the economy itself that colonial
governments in the Chesapeake expected would regulate human behavior
and establish new customs. Bacon*s Rebellion in 1676 was fought in part
over the privileges given to Indian fur traders by the Virginia ruling class, at
least as Nathaniel Bacon and his followers saw it. The Governor of Virginia
had alliances with Indians that were crucial to the colony, and Indians
accepted these trade relations as establishing quasi-legal norms of behavior.
Settlers in the Chesapeake did not want Indians in their midst. Those
Indians who did live among them were usually servants or slaves, and there
was a steady amalgamation of Indian and African peoples. Nevertheless
the slave narratives of the Works Progress Administration suggest there
were still ※full-blooded§ Indians in the Chesapeake during the nineteenth
century, and many of the former slaves claimed a full Indian ancestry. Indians
who were not amalgamated into the general population of servants or placed
on reservations became in effect enemy combatants, people to be dealt with
by the military rather than by the courts when trading went awry.
Trading relationships in the north were also fraught with tension, but
provided, as Richard White has called it, a ※middle ground,§ where natives
and colonists could meet without hostility. A nascent fur trade arose in the
seventeenth century and burgeoned in the eighteenth and early nineteenth
centuries. Trade along the Great Lakes region forced movement among
the Indians, introducing economic competition into the native communal
norm. The trading areas were largely free of formal legal institutions, and
Native Americans could insist, in the early period, on using native practices
to negotiate the terms of exchange. As trading became a larger industry,
however, both the British and the French Crowns attempted to regulate its
conditions.
The introduction of liquor often affected the contracts made between
native fur traders and colonial or crown purchasers of furs. Alcohol complicated
the resolution of differences, usually by making it impossible to
wait for a legal decision and settling matters by violence. Indian traders
often did not understand the English and French law of contract and debt
obligations. When courts did decide cases that involved payments or debts
owed, they often resorted to the concept of quantum meruit, an obligation
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The Law of Native Americans, to 1815 49
based on ※reasonableness and justice,§ rather than on the consent of the parties.
This should have worked in favor of the Indians to some extent, but by
the time the fur trade had been established in the mid-eighteenth century,
the once common idea that Indian alcohol abuse was the fault of Europeans
had faded, and Indians were held to individual accountability.With alcohol
often the cause of misunderstandings if not outright deliberate deception on
the part of colonial traders, Indians lost their cases because courts assumed
they were ※reasonable§ when they made their trades or ought to have been.
The lack of legal protection in areas of trade, whether because disputes were
settled on the ground, as it were, or because Indians lost when in court,
turned the middle ground into a dangerous place. It created a situation that
perpetuated Indian indebtedness, forcing them to continue to hunt further
away from home and to leave their families for extended periods. It also
forced the sale of Indian lands to repay debts incurred while trapping.
Whether New England courts or Chesapeake commercial relationships
were the venue for early colonial dispute resolution, by the eighteenth
century Indian resort or subjection to the power of Anglo-European courts
was the common denominator throughout the colonies, as it would be later
in the United States. The dominance of the Anglo-European legal system
did not, however, completely obliterate Indian jurispractice.
III. ANGLO-EUROPEAN LAW ABOUT NATIVE AMERICANS
AFTER CONTACT, 1730每1815
Assimilated Indians, or those living within the borders of Anglo-European
towns, began using the colonial court system almost exclusively by the
1730s. Indian use of Anglo-European courts to settle disputes began earlier,
as we have seen, but it was not the only forum for settling differences in the
seventeenth century. By the eighteenth century, however, Indians who had
managed to survive among colonists adopted many of their legal practices 每
though not without leaving an Indian imprint.
In the Chesapeake, Indian heritage contributed to the retention of certain
practices involving property. Despite the preference for primogeniture in
Anglo-Virginia, at least one Anglo-Indian man, who had a large estate, made
his daughter the executrix of his will and left her his land, making gifts of
money and chattel to his sons. Whether this was a legacy of Algonquian
matrilineal customs or simply a preference for his daughter over his sons is
not certain, but there is other evidence that Indian heritage played a role
in their use of the colonial law.6
6 Kathleen M. Brown, Good Wives, Nasty Wenches and Anxious Patriarchs: Gender, Race and
Power in Colonial Virginia (Chapel Hill, 1996), 242每43.
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50 Katherine A. Hermes
More frequently, Indians found themselves being used by colonial law.
The rise of a distant royal voice of authority among the colonists, along with
increasing royal pronouncements about treatment of the Indians and the
presumption by royal agents that Indians were either wards or quasi-subjects
in need of protection, took from the Indians much of the autonomy they
had managed to preserve. The European wars of the eighteenth century that
were fought on North American terrain led to a new era of Anglo-Native
American conflict in which territorial jurisdiction and national sovereignty
were the dominant themes.
British Imperial Law and Native Americans
Michael Leroy Oberg has argued persuasively that two principles governed
the British interaction with Native Americans in the seventeenth century:
dominion and civility. These dual principles extended well into the eighteenth
century when the Indians were British allies. As long as the British
could dominate, they expected to maintain civil relationships with the
tribes. Domination and civility required face-to-face relationships and even
friendships of a sort between the individual parties representing each side.
The British agent or superintendent became the counterpart to the chief.
Although Native Americans had frequently insisted on the presence of
councils at meetings, or the use of female interpreters, these practices faded
as men sent by Britain to regulate Indian affairs insisted on dealing with one
chief. An artificial system of designating one male chief became cemented
in eighteenth-century diplomacy.
Colonial governors appointed by the crown often had a very different
perspective on the legal rights of Native Americans than colonists and their
elected officials. Governor Berkeley of Virginia tried to secure a Crown-
Indian relationship that left Indians dependent on England but not on
the colonists per se. He co-opted Indian assistance by treaties that, for
example, made them accomplices in hunting down non-friendly Indians
who murdered colonists. Likewise, the Indians favored Governor Andros,
who ruled over New York and later the short-lived Dominion of New
England (1686每9) and who alienated the colonists of New England by his
attempts to challenge land titles obtained from Indians. His protection of
their rights even against those of his countrymen was worth the price of
submission and loyalty for many Indian nations.
In the eighteenth century, the charters and governments of many colonies
were remade to a more uniform standard. Their legal systems were altered to
be more consistent procedurally with one another, and the Crown appointed
royal governors for all but the proprietary colonies, Pennsylvania and
Maryland. The royal governors tended to take an imperial rather than local
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The Law of Native Americans, to 1815 51
view of Indian relations, one that increasingly diverged from the desires of
the colonists. In war after war begun in Europe but played out on American
soil, European monarchies and their Indian allies fought for control of
North America. By the time of the French and Indian War (1754每63), or
the Great War for Empire as it is also known in North America and the
Seven Years War as it is known in Europe (1756每63), America had long
ceased to be a sideshow on the stage of European rivalries. What many
Native Americans had been requesting for years 每 that is, meetings with
true representatives of the Crown 每 came to fruition, not, however, because
of Indian efforts but in the service of metropolitan imperial ambition.
After more than 150 years of colonization, the wars of the mid-eighteenth
century gave the English control of all of eastern North America. With
rapidly growing populations, the English colonies now turned inward away
from the sea to a larger destiny. The Great War for Empire in the 1750s
and 1760s had resulted in the expulsion of the French political and military
presence from the interior. The powerful Native American nations of the
interior no longer had European allies to assist them against English settlers*
incursions. At the same time, the need to coordinate British power in
America in the face of the French threat had already led, in 1755, to the
appointment of a superintendent of Native American affairs for the northern
department, an office to which SirWilliam Johnson was appointed. In 1756
a similar superintendency for the southern colonies was established, with Sir
Edmond Atkin as superintendent. The superintendents reported directly to
the commander-in-chief of British forces in America. Although not taking
the conduct of Native American relations entirely out of the hands of the
colonial governors and assemblies, the existence of these new colonial officers
marked a significant reduction of the powers inherited and assumed by the
individual English colonies.
With the end of the French and Indian War, the English government
established further controls on colonial freedom to act, particularly in
restricting western settlement within the chartered limits of the colonies.
By the Proclamation of 1763, the lands beyond the Appalachian mountain
chain were declared off-limits to settlers, albeit that the Atlantic colonies
claimed their borders ran all the way to the Pacific. The lands over which
the British Crown reasserted its sovereignty were reserved for the Indians,
though less by formal means than by understanding. There were, of course,
important treaties that guaranteed preservation of land and rights to Indians.
The anger of the colonists who itched to move westward was tempered
only by the knowledge that the ban was not necessarily permanent.
The status of the Native American nations of the interior is not easy to
describe, because each entity entertained different perceptions. The Indian
nations attributed to themselves an independent status, which they felt
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52 Katherine A. Hermes
able to maintain by force of arms. The English government, on the other
hand, asserted ultimate sovereignty over Native American lands by virtue
of the ancient charters that former kings of England had granted to those
undertaking to plant colonies in the New World. Though speculative in
origin and based on ignorance of the geography of the New World and of
the power of the Native American nations in the interior, the charters were
brought forth in legal argume,nts whenever their full realization seemed
possible. Law in the form of treaties began to replace negotiated jurispractice
with colonial governments at the cost, in some cases, of individualized
justice.
In their dealings with the Native American nations, the English authorities
used the treaty form of negotiation, in which solemn covenants were
entered into as between equals. The Iroquois analogized English forms
to their own ※Covenant Chain,§ the name given by them to an intricate
network of parties who treated with one another. The idea of the chain
harkened back to the pre-contact history of the Iroquois in which their
own confederacy, the Haudenosaunee, became a chain. They linked arms
with their treaty partners to signify the human chain they were creating by
their entry into treaties. In 1763 the Indian nations of the southeast signed
the Treaty of Augusta with Great Britain, giving the Crown, and not the
colonists, control over Indian relations. Indian territory was then carefully
plotted out. Native peoples adjusted their jurispractice to incorporate a
concept of territorial jurisdiction that never sat easily among their other
legal principles.
During the period from 1763 to 1775, a series of boundaries between
the colonists and the Native Americans of the interior were created from
Lake Ontario to Florida, confirming in the minds of Native Americans (and
many colonists) the belief that the Native American country was closed to
speculation and settlement by the increasingly aggressive colonists. Except
for South Carolina, where there were few violent land disputes after 1763
until the RevolutionaryWar, colonists continued to usurp the powers of the
crown extra-legally by buying Indian lands and entering into unenforceable
treaties. Until the dawn of the American Revolution, colonists had to
find ways of negotiating with Indians without contravening English law*s
assertion of royal sovereignty and exclusive right to treat with Indians as
foreign nations.
Lord Dunmore*sWar of 1774 began to erode the arrangements by which
the seaboard colonies and the Native American nations of the interior were to
be divided. Dunmore, the royal governor of Virginia, wanted to acquire Fort
Pitt, abandoned by the French but not the Indians during the French and
Indian War, in support of Virginia*s charter claims. Dunmore*s move into
the trans-Allegheny areas of western Pennsylvania (Virginia*s charter claims
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The Law of Native Americans, to 1815 53
were to the west and northwest) led to war with the Delaware and Shawnee.
The war initiated a response from the Iroquois to the north, who stood in the
relation of elder brothers to the Shawnee and Delaware. Perhaps the most
prominent guarantor of the relationship was William Johnson. A patriarchal
figure with a Mohawk second family who inspired trust with the Iroquois
Confederacy, Johnson was a man who mediated the interests of King,
colonies, and Indians. As an agent for the King, Johnson often acted outside
his legal authority to ensure Indian rights. As Superintendent of Native
American Affairs, Johnson worked diligently to keep the Iroquois out of war.
He pointed out that the Six Nations that comprised the Iroquois Confederacy
had renewed and confirmed the Covenant Chain that existed between
them at the Treaty of Fort Stanwix, entered into on October 26, 1768.
The Iroquois demanded to know why Anglo-Europeans were not honoring
the former treaties and boundary lines and were moving beyond the
mountains into the Ohio River valley. In 1774, while arguing in council
to prevent Iroquois participation in Dunmore*s War, William Johnson
died. His successor met with the Iroquois representatives in a series of
conferences culminating in a great meeting at Onondaga. The Iroquois
ultimately endorsed the pledge to remain at peace with the English and
persuaded the Shawnee to settle their differences with theVirginians. Joseph
Brant, a Mohawk graduate of Eleazar Wheelock*s Native American School
at Lebanon, Connecticut (later Dartmouth in Hanover, New Hampshire),
was particularly influential in these conferences. What had once been a unitary
system of law that incorporated diplomacy with other jurispractices
was replaced by a dual legal system of local justice and international diplomatic
relations. This dual legal system in turn divided native leaders and
created new legal roles in tribal communities.
To keep colonists and Indians apart, the British government continued
to enforce the Proclamation of 1763. The Quebec Act, which replaced and
changed the Proclamation, precluded colonial expansion into the lands that
colonies claimed by their charters. It extended the province of Quebec as
far south as the Ohio River and placed management in the hands of a royal
governor with a standing army under his command to support him. As
Francis Jennings has pointed out, the significance of the Quebec Act was
that it halted the rampant land speculation of the seaboard colonists. It
placed issues of sovereignty and control of the areas of likely expansion in
the hands of Parliament rather than of colonial legislatures. It acknowledged
that Indian nations and tribes would remain on the lands that were either
traditionally theirs or, in the case of tribes already pushed westward, that
were now through custom or treaty established as theirs.
British restrictions on colonial freedom of action in this as in other fields
helped convince the colonists that violent reaction might be the preferable
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54 Katherine A. Hermes
alternative. Revolutionary action soon arrived on the horizon. During the
period in which colonists began to form structures of governance, the British
imperial model for treating with the Indians was followed in form, though
not in substance. In July 1775, the Continental Congress proposed a plan
similar to the superintendencies created by the Crown for managing Native
American affairs except that it created three rather than two geographical
departments, with Commissioners appointed for each. At this point the
role of the Commissioners was to urge neutrality on Indian nations, but
they were largely unsuccessful.
During the ensuing Revolutionary War, most Native Americans chose
to side with the British. The involvement of many Indian tribes in the war
on the side of the British had legal repercussions after the war. The fact that
four of the six nations of the Iroquois Confederacy had fought on behalf of
the Crown and two had fought with the rebelling colonists, along with the
continued division among the Six Nations, enabled the United States to
argue in 1783 at the war*s end that no Iroquois Confederation continued to
exist, thus calling into question any sovereignty the Confederacy*s members
claimed for their union.
In addition to the upheaval the American Revolution caused at the level
of diplomatic and military relations, it also disrupted other institutions,
particularly in the South. Enslaved people who claimed Indian ancestry,
particularly on the maternal side, sued for freedom in Southern courts or
ran away, expecting that their Indian descent would serve as a protection
from reenslavement. In Robin v. Hardaway, a Virginia case in 1772, the
plaintiffs argued that Indians brought into Virginia after 1705 could not
be enslaved; any descendants must therefore be set free. In the post-war
period, especially in eastern Virginia, slaves who could demonstrate Indian
ancestry frequently won their freedom in court. This trend continued into
the early republic. Although the legal status of Indian nations reached a
nadir in terms of hardship, individual Indians were again finding it possible
to enter local Anglo-American courts to claim justice.
U.S. Federal Law and Native Americans
The failure of the British negotiators to include provisions protecting
Britain*s Indian allies in the Preliminary Articles of Peace of 1783 astounded
Indians and Europeans alike. No Indian tribes were present at the signing
of the treaty, despite their participation in the war. England could have
inserted a clause to protect the Indian allies* rights to land tenure. The
Spanish representative at the Paris negotiations, the Conde de Aranda,
asserted that the territory west of the Appalachians to the Mississippi,
which England handed over to the Americans without pause, belonged to
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The Law of Native Americans, to 1815 55
free and independent nations of Indians to which Europeans had no right.
But the American negotiators rejected this claim on behalf of the Native
Americans and asserted the rightful authority of the colonies to govern the
lands west to the Mississippi.
In their negotiations with the Native Americans back in North America,
the former colonists tried to persuade the Indians that by siding with the
British in the Revolutionary War their tribes had lost all rights. The new
federal government asserted that the Native Americans were a conquered
people. The governor of New York was advised not to enter into any treaty
with the Iroquois Confederacy as an equal party, because its former independence
and even the Six Nations as separate sovereigns had ceased to
exist.
The relations between the Five Civilized Tribes and the various European
powers had been perhaps the best on the North American continent.
By the mid-eighteenth century, the southeastern tribes lived in ways that
were recognizably ※civilized§ to most Europeans. The American Revolution,
however, abruptly ended all prior friendships, particularly when the
United States came into sole possession of the southeast and the former
colonists began to colonize the southern Indian nations. Beginning in 1785
with the Treaty of Hopewell between the Commissioners Plenipotentiary
of the United States of America and the Head-Men andWarriors of all the
Cherokees, the United States started to establish quasi-jurisdiction over
the Five Civilized Tribes. A second treaty in 1786 was the first attempt
by the United States to establish hegemony over the Choctaw. It required
the return of escaped slaves, the extradition of any Choctaw who had been
convicted of crimes by the United States, and the return of any property
that had been captured during the Revolutionary War. Until 1798, Spain
still claimed sovereignty over the territory occupied by the Choctaw. As
soon as Spain ceded the region, the United States began enforcing the harsh
provisions of the Treaty of Hopewell.
Neither the Iroquois, nor the Indians of the Old Northwest, nor those of
the South meekly accepted colonial claims of sovereignty by right of conquest.
The treaties the Indians were compelled to sign acknowledging this
late version of colonial history were instruments of power that the Indians
could not have anticipated. Such claims of conquest would have sounded
strange a century before to most of the tribal nations that now were signatories
to treaties, because previously they had existed as recognized nations
on a par with the English. The conquered tribes had been those of the
first wave of colonization, the Powhatans and the Pequots. The Iroquois
and the Cherokee did not view their own situations as remotely similar to
those tribal histories. Although the majority of Indian nations responsible
for stemming the tide of colonial expansion had sided with the English in
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56 Katherine A. Hermes
the Revolutionary War, they still possessed land and power only partially
diminished by the war. The British government, shamed by Indian remonstrances,
continued to occupy the forts of the Old Northwest, providing
trade goods to their former allies. Nevertheless, they refused military aid
for a renewed attack against the Americans.
Unsuccessful attempts by the United States to impose its will on the
Native Americans confirmed that the Indians had not been vanquished by
the Americans during the Revolutionary War. In numerous expeditions
undertaken by American generals in the 1790s, Native Americans defeated
U.S. attempts to gain physical control of their lands. In 1794, General
AnthonyWayne finally managed to defeat the northwest Indians at Fallen
Timbers. Yet, the resistance and strength of the natives refuted the notion
that conquest could simply be asserted rather than won. Tribes refused to
yield sovereignty and jurisdiction to the United States.
With the formation of the Constitution and the establishment of a new
government, Secretary of War Henry Knox, Secretary of State Thomas
Jefferson, and President George Washington articulated a formal policy
of honor and good will toward the Native Americans. As expressed in
the Northwest Ordinance, the policy claimed, ※The utmost good faith
shall always be observed towards the Indians; their land and property shall
never be taken from them without their consent; and in their property,
rights, and liberty, they shall never be invaded or disturbed, unless in just
and lawful wars authorized by Congress; but laws founded in justice and
humanity shall from time to time be made, for preventing wrongs being
done to them, and for preserving peace and friendship with them.§ This
was not the policy, though, that the U.S. government followed. Indeed,
it is fair to say that there were two policies, one stated and one hidden.
Under the Federalists and Jefferson, the Indians were to be semi-segregated
from the English population but assimilated to Anglo-American culture,
an approach evidenced in agriculture, trade, and law. Despite Jefferson*s
repeated desires to have a native American race into which was bred the
best of the English and the Indians, real Indians had to stay away from
white Americans as much as possible. It was thus one of the great ironies
of history that the Cherokee, who accepted this plan more than any other
nation of Indians and who assimilated, farmed with the use of slave labor,
traded, and created laws in the form of a written constitution, became the
first to come under attack and were ultimately removed in the Trail of
Tears.
Writers in the early federal period were still affected by ideas of the
noble savage on the one hand, and the Indian frontier presence on the other.
Travel writers, the past generation of whom had compared Indian government
to monarchies, now saw the Indians possessed of republican forms of
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The Law of Native Americans, to 1815 57
government. Some Indian nations were receptive to republican ideas,
notably the Cherokee. The Iroquois too had long lived under a confederation
that loosely resembled the first U.S. government under the Articles
of Confederation. Many Native Americans had, even before contact with
Europeans, practiced forms of government compatible with a democratic
republic even if not conceived in that way. The idea that the people should
have a voice through learned councilors was typical of many native legal
and political systems. Yet, the United States continued to view the Indians
as anathema to principles of democracy and republican government. They
needed civilizing, according to almost every Anglo-American commentator,
if they were to survive. Those who wished them ill believed they could
not be civilized and therefore would vanish. Others had hope. The Indians
themselves continually expressed confusion that Americans did not understand
that they were sovereign and governed themselves on just principles.
When Thomas Jefferson became president he announced policy objectives
for the Indians that included peace, land cessions, and civilization.
Hidden in the agenda was removal, if it became necessary, and the extermination
of resistant tribes if that proved unavoidable. That Jefferson never
acted on these feared inevitabilities does not mean they had no lasting
effect, for by positing resistance, removal, and annihilation as foregone conclusions,
much as he had the demise of slavery at some time in the future,
he propelled succeeding generations to ponder the message and, in a sense,
rigged the future. Jefferson saw the Indians as savage, even if noble. He
did not acknowledge that they had either legal systems or self-governance
that was rational. Jeffersonian theory essentially misunderstood the nature
of tribal culture and how it could be reformed.
Many Americans thought only in terms of how Indians should be
reformed, without realizing that Native American culture and law was
evolving right alongside them. The good intentions of missionaries to the
Indians and their advocates in Congress were in themselves an assault on
Indian society and sovereignty. The missionaries thought of themselves as
genuine friends of the Indians. Nevertheless, their intent was to destroy
the Indians* world. Jeffersonian policy was na“ıve and confused. In wanting
what was best for these noble savages, reformers ultimately desired the
elimination of the tribal order. Like their predecessors, they rarely recognized
native legal or religious institutions. If they did acknowledge Indian
jurispractices, they often tried to suppress them.
The Jeffersonian Indian policy of coexistence and gradualism 每 a steady
if slow accommodation of Indians to the Anglo-American lifestyle through
the transforming process of civilization, culminating in absorption into the
dominant Anglo-American society through intermarriage 每 was an ideal
that Jefferson himself never accepted fully as a real possibility. As in the
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58 Katherine A. Hermes
matter of slavery, Jefferson compartmentalized his philosophical beliefs and
his day-to-day actions. Jefferson wrote of his hopes of bringing civilization
to the Indians and constantly urged tribal leaders to change their lifestyle
in order to require less land for their people. He directed governors of the
Northwest Territory, Michigan Territory, and Indiana Territory to ※promote
energetically§ the national government*s plan for civilizing Indians
and authorized the assignment of blacksmiths and other artisans to cooperative
Indian tribes to maintain plows and other implements for Indian
apprentices. He encouraged missionaries to take part in the Indian civilization
process. In 1803 he directed the Cherokee agent to erect a schoolhouse
for Gideon Blackburn, a Presbyterian missionary, to enable him to instruct
Cherokee children. The number of tribal schools increased until, in 1824,
twenty-one schools with nearly 1,000 Indian students were functioning.
But the plan did not include, as the Spanish, English, and French had all
acknowledged to some extent at the beginning of colonization, any institutionalized
Indian court of justice.
Jeffersonian Indian policy fitted well with the growing land needs of
Anglo-American pioneers. It accepted the inevitability of their advance
across the frontier, with the national government maintaining firm though
regularly changing boundaries through an orderly, managed progression
of settlements, made possible by periodic land openings. It held that new
settlement zones would be created from new cessions by Native American
proprietors.
Yet, despite Jefferson*s strong commitment to Indian civilization, the
program was never successful because at no time was it ever sufficiently
supported, fiscally or politically, by Congress and officials in the government.
Cynical politicians regarded the nation*s ※Indian problem§ as solvable
through the steady advance of hardy American pioneers; in due time
extermination rather than assimilation would rid the nation of this vexing
complication to its expansion, growth, and development. Native American
tribal authorities often experienced rifts in their councils, as they tried to
determine their level of cooperation with the civilization program. Men
of European and Indian heritage tended to be more willing to do what
the United States demanded than those with only Indian ancestry. In some
tribal communities there emerged strata of class and race that had not been
present in the past. The effect on law was palpable, as tribes fought over
whether or not to adopt Anglicized legal systems.
The lack of evidence of noticeable progress in Indian civilization during
his tenure as the nation*s chief executive led Jefferson to consider alternatives
for protecting Indian interests and making tribal land available for
settlement by Anglo-American pioneers. Jefferson preferred that the eastern
Indians remain on their progressively diminished tribal territories and
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The Law of Native Americans, to 1815 59
support themselves by agriculture. After the United States acquired the
Louisiana territory, he considered relocating certain eastern Indians there.
In each Indian nation Jefferson found that there were factions who seemingly
could not cope with the relentless advance of the settler tide across
established boundaries onto tribal territories that the national government
had pledged to protect from trespass. Jefferson urged tribes to consider
exchanging eastern lands for wilderness tracts. Thus for eastern Indians
removal appeared to be an alternative to life on a compressed tribal estate
attempting to coexist with Anglo-American neighbors.
Portions of Jefferson*s Indian policy persisted after he left the presidency.
The policy of his immediate successors 每 James Madison, James Monroe, and
John Quincy Adams 每 continued in varying degrees the Jeffersonian style
for managing the Indian tribes. Gradually, though, removal and segregation
by exile into the trans-Mississippi wilderness eclipsed his semi-segregated
assimilationism as cornerstones of federal management of the eastern tribes.
As native peoples began to understand more fully the democratic discourse
spread by so many Anglo-Americans, they began to change their laws, adopt
some Anglo-American principles, and apply these principles to everyone
within their jurisdiction. This bold assertion of legal authority may itself
have initiated the reprisals that resulted in the segregation of the native
people. At any rate, the years after 1815 saw drastic change for the Indians
as U.S. Supreme Court decisions limited their sovereignty and federal and
state governments pressed for their removal. Lynn Hudson Parsons, who
has examined the federal Indian policy of John Quincy Adams and Andrew
Jackson, finds that each in fact embraced similar policies toward the Indians,
whether as presidents or policymakers. Adams would change his mind
about the Indians as he grew older, but the policies of the new Democratic-
Republicans were arguably genocidal in the cultural sense and possibly in
the physical sense. They were intent on wiping out native language and
traditions, and certainly native law, even the laws that some tribal nations
had taken great care to prepare as semi-assimilated peoples sharing the
North American landmass.
As early as 1675 when King Philip went to war in large part because of
his anger over the trial and execution of Indians of his nation, the colonists
had punished native peoples by placing them on reservations. The idea
that Indians had a right, even if it was a lesser right, to the land had
been eroding ever since. By 1800 there were few white Americans who
thought of Indians as ※civilized§ and entitled to legal protection, despite
the growing familiarity that all eastern Indians had with Anglo-American
law and principles.
The reservation system that existed in the years between 1675 and 1800
was undeveloped and confined. It was largely under the control of the states
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60 Katherine A. Hermes
until the federal government claimed the right to oversee it in 1787. Federal
power was weak, though, and for the most part states did as they pleased.
Reservation Indians, more than others, were placed in a legal limbo, where
they could never be sure of the extent of the power they were allowed
to exercise. Many continued to act as they had before the federal government
claimed any power over them. The Pamunkeys of Virginia, for example,
continued to pay tribute to the governor of the state as their sovereign
conqueror in compliance with a seventeenth-century treaty. In fact, the continuance
of the use of the treaty as the instrument to negotiate legal norms
remained a contentious issue throughout the nineteenth century, even after
the questions of federal legal primacy and tribal sovereign status within the
American polity had been settled by Chief Justice Marshall in Worcester v.
Georgia (1832). Whether on reservations or off them, tribal nations faced
multiple layers of legal norms, but without the choice of forum that had
characterized the colonial period.
CONCLUSION
In thinking about law and Native Americans in the pre- and post-contact
periods in North America, the term ※jurispractice§ captures most precisely
the reality of that world. Though they did not lack principles, the legal and
moral ideas that informed the people of North America, Indian and colonist
alike, by necessity manifested a higher degree of expediency than principle.
The balance was simply tipped toward the perception of reality from each
group*s standpoint. Law, the rules that govern society*s conduct, presumed
by societies to be immutable at least until an authoritative change occurs, is
embedded in the fabric of the societies it governs. It is distinguished from
custom by its articulated permanence.
In the current anthropological literature and historiography, where law
is just one of many elements subsumed under the rubric of culture 每 no
different from architecture or fashion 每 it is perhaps old-fashioned to claim
it is imbued with some higher supracultural significance. Yet, although the
European colonists of New England may have criticized rude Algonquian
wigwams and their forms of ※savage§ dress, they did not even realize that
Algonquians had ※law.§ That invisibility distinguishes law from other subsets
of culture. Structures of wood are recognizable, and sometimes even
structures of governance are dimly recognized as something akin to what
the observer knows: a werowance is like a prince, the mamanatowick like a
king or an emperor. Law, though, is something one can only know by the
deepest understanding of a society. Even law*s ritual practices, or legal procedures,
can be better understood sooner than the law itself. The historical
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The Law of Native Americans, to 1815 61
understanding of pre-literate legal culture is essentially the attempt to
understand its jurispractice, its recognizable expression of legal ideas
through the ways in which they are practiced by a society. Jurispractice
is, indeed, all we can know about the law of the Native Americans who
lived in the pre-contact and contact periods. We can infer from that practice
that they may have had a philosophy of law as well as a body of laws,
but we will never possess it in the way we can possess a copy of jurisprudential
treatises by Samuel Pufendorf or even the ever-practical Blackstone*s
Commentaries.
Understanding the evolution of jurispractice after contact requires recognition
of multiple realities as well as legalities. Initial colonial impressions
of Native jurispractice reflected colonizers* own expectations, models, and
familiarity with law, derived from the particular European societies and
legal systems with which the colonial observers were conversant. As Indians
began to exercise and communicate their own expectations within colonial
legal realms, the picture of their jurispractice reflected in treaties, court
records, and other documents generated in those realms became more precise,
more particular, and more problematic. Heterogeneous tribes, both
those that were indigenous and those that were formed by post-contact
ethnogenesis, with their concomitant multiplicities of jurispractice, operated
in separate but overlapping spheres of power with several layers of
European and colonial law and government.
During this period the operative premises were a mutual belief in equal
application of justice to Indian and non-Indian alike, negotiation of the
terms of engagement in the shared legal space, and autonomy of jurispractice
in separate spheres of sovereignty. Indians and Europeans operated
under different beliefs as to the limits placed on Indian legal autonomy by
Anglo-European law and, most essentially, as to what constituted ※justice.§
Despite the tensions arising from differing beliefs and differing approaches
of jurispractice, such as mediation and adversarial contest, both Indians and
colonists managed for a time to operate successfully in an arena of shifting
legalities.
This change in jurispractice reflecting a period of shared power and interaction
in a negotiated legal space broke down under the pressures of change
on both sides. Increased hostility on the part of both Indians and colonists
made cooperation less tenable and less desirable. The increased formality of
English legal systems operating in the colonial period made it more difficult
to maintain equitable cross-cultural arrangements. Increased assimilation
on the part of individual Indians put more and more natives beyond the pale
of shared legal power and within the pale of colonial court systems, without
the protections, demands, and special processes previously negotiated. The
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62 Katherine A. Hermes
increasing unpredictability of processes and protocols negotiated by colonial
governments at all levels made it very difficult for Indians to operate
within separate yet overlapping spheres of jurispractice. Two sets of rules
may be viable; multiple sets that may or may not apply lead to chaos.
The breakdown of the fragile balance of power between sovereign legal
actors was long completed by the time of the American Revolution, which
marked a significant change in the position of Indian tribes within the
larger legal system of a new federal republic. The new federal government
initially asserted that Native Americans were conquered peoples without
any sovereignty. In 1787 this gave way to a stated policy that seemed to
recognize tribal autonomy. Such stated deference to the ※rights§ of Native
Americans was belied by subsequent actions on the part of both federal
and state governments. Although tribes still operated on the premise that
their law was in their control, during the Early Republic federal and state
officials acted as if native control of their law was defeasible.
From contact through the Early Republic, significant changes occurred
in Native American jurispractice in response to the pressures of European-
American legalities. In looking at the rise and fall of a negotiated realm of
Anglo-Native jurispractice in North America the challenge before scholars
at present is to explore the ways in which sustained interaction with native
jurispractice affected the jurispractice and structures of governance in the
emerging polity that would come to be called the United States of America.
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3
english settlement and local governance
mary sarah bilder
In late 1584, as Sir Walter Raleigh began to organize an effort to send
settlers to Roanoke Island, an anonymous author asked, ※What manner of
geouernement is to be vsed and what offics to geouerne?§1 The mysterious
end to the Roanoke settlement offers no answer. Yet, as the vast record of
charters, letters patent, and correspondence about governance testifies, the
manner of government preoccupied settlers, investors, and Crown officials.
The question of governance also intrigued past generations of historians.
Simply put, when English settlement began in the 1570s, not one of the
institutions that symbolized American representative government was in
existence; by the 1720s, colonial American institutional development was
largely complete.
For the casual reader, institutional histories of early America often revel
in overly obscure details of colonial and English political organization. The
current tendency to reject the entire venture, however, goes too far the other
way. As we shall see, institutional history is important for two reasons. First,
it helps us understand the development of authority 每 in this case, the roots
of American federalism and representative democracy. Second, it helps us
put British North America in its transatlantic context as part of English
politics, the expanding English empire, and the Atlantic world.
For much of the past century, with notable exceptions, early American
historians have shied away from institutional history.We can attribute this
shift in part to the quantity and quality of work written in the first half
of the twentieth century by the ※imperial school§ of colonial historians.
Their detailed accounts of colonial American institutional development
in an English world, crowned by Charles McClean Andrews* magnificent
four-volume The Colonial Period of American History (1934每8), seemed definitive.
The foundations apparently set, succeeding generations of historians
1 ※Anonymous Notes for the Guidance of Raleigh and Cavendish§ (1584每1585) in David
Beers Quinn, ed., The Roanoke Voyages (London,1955), 1: 136.
63
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64 Mary Sarah Bilder
turned to different concerns. In part, too, for the imperial school historians
每 mostly born in the nineteenth century and raised in a nation whose
governing structure had been torn apart and remade and which had then
embarked on its own imperial expansion 每 the colonial period encouraged
institutional explanations for contemporary questions, such as regional differences,
discussions of legitimate and illegitimate colonial and imperial
policies, and theories of American democratic identity. Later historians,
raised in a nation with an apparently unalterable governmental structure
but torn by social tensions, looked to the colonial period for insights into
different matters 每 the problems of the modern ※United States§: economics
and class, politics and ideology, social relations, race, gender, sexuality, and
cultural practices.
Although historians turned away from writing institutional history, the
questions relating to it have never disappeared. The arrangement of power
and authority that developed over the first century of English colonization
remains a central, inescapable theme in American history. Yet, our
approach to these questions has necessarily changed. Interpretations and
theories about historical development become dated; the insights that produce
interpretive originality carry intentional or unconscious oversights. In
its way this chapter is no exception, for the reader will find that I advance
here my own argument about a certain ※American manner of government.§
But in fact my main concern is not to construct a particular, new interpretive
approach. Rather, I hope to suggest the ways in which old questions
about governance retain their vitality and interest.
To this end, the chapter retraces the classic institutional narrative, focusing
on moments where a reexamination disrupts conventional expectations.
The theme is simple. Institutions of government are not preordained. Governance
practices are contingent and embedded in particular contexts, and
institutional labels and meanings change over time. A revitalized institutional
history hence should focus on offices, officers, and the ※manner of
government§ of the early colonial period. So pursued, institutional history
reveals law as an instrument of governance and a rhetoric of authority 每 a
discourse about legitimating and also contesting power.
In focusing on governance and authority, I suggest that we should reverse
our traditional understanding. We have recognized that both in England
and in the North American settlements concerns about the location of
authority lay at the center of seventeenth-century English institutional
development. But we have approached debates over authority as if there
could be only one authority. What is striking about the early colonial
period, however, is the centrality of the practice (and hence the problem) of
the delegation of authority and the recurrence of developments that created
dual authorities and then embraced their inherent tensions. To put it simply,
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English Settlement and Local Governance 65
for the first century and a half, English governance in America was imperium
in imperio.
Two final preliminaries. First, I focus here on the mainland settlements
that eventually become the United States. Additional coverage of Canadian
and Caribbean English settlements 每 the Newfoundland fishing communities,
the proprietary colony of Barbados, the long-lived corporation colony of
Bermuda, the royal colony of Jamaica, all of which remained longer within
the British empire and British imperial governance practices 每would reinforce
the argument that dual authorities were not inherently unmanageable.
Second, I have chosen the agenda for this chapter recognizing how influential
the tendency to frame discussions by current institutional assumptions
remains. Conventional approaches usually discuss colonial institutions
under an executive-legislative-judicial model 每 that is, starting from the
premise that powers can and need be separated. The courts, however, were
not a separate branch, and the controversy was whether courts were to
be controlled by the legislature or the Crown through the governor. In
fact, for most of the colonial period, the ※third branch§ was the English
Crown and Privy Council. To emphasize these understandings, the Privy
Council appears as part of governance and the courts as part of the culture
of law.
I. SETTLING COLONIES
Discoursing on patterns of colonial settlement often precedes discussion of
governance. However, because the Crown began to delegate governmental
authority long before any settlements arose, governance is an inescapable
foundation for settlement. Yet, English settlement in North America did
not proceed according to any preconceived master plan established by the
Crown, or private individuals, or groups of investors. Discovery, trade,
and military outposts, not settlement, were the initial goals in exploring
North America. Ireland, not North America, was the first site for
English colonization and plantation. Nonetheless, all the initial English
efforts at exploration required a delegation of the Crown*s governmental
authority.
Early delegations occurred in letters patent, grants under seal by which
the Crown gave privileges and authority but did not necessarily constitute
any particular political entity. Patent referred to the open or public
nature of the grant. Letters patent usually began with the words, ※To all
to whom these presents shall come, greeting.§ In 1496, Henry VII gave
John Cabot (Giovanni Caboto) the first English letters patent over land
in North America. The Latin words of the document implicitly delegated
governance in that Cabot and his sons were enabled to conquer, ※occupy and
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66 Mary Sarah Bilder
possess§ lands as ※vassals and governors lieutenants and deputies.§2 Soon
after, letters patent given to Bristol merchants in 1501 and 1502 contained
explicit delegations of governance authority, but did not address the specific
structure of government. The patentees received authority to govern
and to establish laws, ordinances, statutes, and proclamations for good and
peaceful government.
Historians tend to use charter as a generic term to refer to the Crown*s
grants for mainland settlements. In fact, most of these documents were letters
patent and referred to themselves as such. Technically and traditionally,
letters patent and charters are somewhat different documents. A charter was
a grant of privileges in perpetuity; it was more formal, with more witnesses,
written in Latin and, until the early sixteenth century, filed in the Charter
Rolls. The first documents of North American settlement that explicitly
referred to themselves as charters came not as we might expect with the
early corporate colonies, but with the first proprietary colonies, followed
by the 1644 Parliamentary charter to Rhode Island. Before 1660, contemporaries
usually talked not of charters but of patents and of their holders
as patentees. Indeed, the etymology of patent as a term referring to land
conferred by letters patent can be traced to this specific North American
context. Only after 1660 did colonists and English officials begin to refer
consistently to foundational documents as charters.
In discussions of the substance of the letters patents and charters, the
temptation has been to identify the charters as proto-democratic constitutions.
Most gave inhabitants the right to the liberties, franchises, immunities,
and privileges of free denizens and natural subjects as if born in
England. Several provided for land to be held relatively free of feudal obligations.
In legal terms, land was to be granted in a technical form: as of
the Manor at East Greenwich in the County of Kent in free and common
socage and not in capite nor in knights service. Free and common socage
meant that the land was to be held in fee simple with limited payments
(for example, one-fifth of the gold or a certain number of beaver skins).
Many proprietary charters, however, did not envision a settlement of freeholding
inhabitants. Although by the early seventeenth century, English
landholders largely held land directly from the Crown, these charters permitted
land to be held with feudal services and rents owed to a lord. Such
grants contradicted the statute Quia Emptores Terrarum (1290), which had
initiated the decline of English feudalism by permitting the sale of land
without penalty, and in fact, these charters explicitly rejected application of
2 All quotations from charters and patents unless otherwise noted are from Francis Newton
Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and other Organic
Laws . . . , (1909; reprint, Buffalo, 1993).
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English Settlement and Local Governance 67
the statute. The proprietary charters thus affected to resurrect feudal landholding
practices. Letters patent and charters were compatible with both
feudal and freeholding practices.
The Corporation Colony
In narratives of English settlement, the corporate form is a crucial component
of the American institutional story. The corporation*s role, however,
was not necessarily that which has been emphasized. Certainly, the corporation
provided a mechanism for delegating governance authority to private
individuals. Ironically, however, the corporation*s failings as a delegated
authority and its reinvention as an independent authority would be its
lasting contributions to American colonial governance.
Discussions of the corporation as a vehicle for settlement often have
implied that the corporation and corporate governance were stable legal
forms. The corporate form, however, was itself developing as settlement
began. Corporations were created by means of letters patent granting the
privilege of incorporation. By the mid-sixteenth century, incorporation signaled
a particular set of privileges: the capacity to sue and be sued, possession
of a seal, perpetual succession, the power to hold lands, and the power to
pass bylaws. The use of this form for overseas trade remained haphazard.
The first joint-stock trading company was the Muscovy Company, created
in 1555, with governors, assistants, and a collective fellowship empowered
to pass statutes, acts, and ordinances. Other joint-stock trading companies
developed slowly in the late sixteenth century: the Merchant Adventurers,
the Eastland (Baltic) Company, the Levant or Turkey Company, and
the East India Company. But it was not until John Wheeler*s account of
the Merchant Adventurers, A Treatise of Commerce (1601), that the structure
of corporate governance began to acquire a stable cultural definition
as a governor, deputy governor, and twenty-four assistants with ※politike
gouernement, lawes, and orders.§3
Incorporation did not require this particular form of governance. Boroughs,
for example, were also incorporated entities. As England shifted
from a feudal society to one in which increasingly power came directly
from the Crown, boroughs repeatedly requested new Crown charters. But
the restructuring these bodies politic sought was not uniform. Not until the
1660s did corporate boroughs begin to possess relatively similar municipal
governmental charters. Instead, borough corporations retained their
older municipal offices (such as mayor, high steward, bailiff, and recorder)
and governance practices. After the Corporation Act (1661) restricted
3 John Wheeler, A Treatise of Commerce (London, 1601), 24.
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68 Mary Sarah Bilder
corporate offices to those who were willing to participate in the Anglican
Communion, borough corporations came to symbolize sectarianism
in English governance. In neither respect, then, were seventeenth-century
English models of corporate governance for local government necessarily
※democratic.§
The first attempt to use the legal form of the corporation for purposes
of colonization reveals the delegated authority underlying corporate governance.
In the 1560s, Sir Humphrey Gilbert became interested in English
settlement in Ireland. In 1568每9, Gilbert requested privileges to make ※a
Corporat Towne§ in Munster. Gilbert*s interest lay in self-governance: the
power ※to make Sutch statutes and lawes as shall seeme good to their discrecions,
for the better ordring of them selves, and their people, those being
agreeable to the lawes of this Realme.§ The ※chieften of this company§
was to have power to make ※laws and ordinances, not contrary to the laws
of Ireland.§4 The Crown granted Gilbert letters patent with lawmaking
authority limited by the laws of England. By the late sixteenth century,
corporations in general were understood to be similarly bound.
Gilbert kept alive the idea of lawmaking authority limited by the laws
of England while aspiring to create a more feudal-style settlement in Newfoundland
where English fisheries for catching and drying salt cod existed.
In 1578, he obtained letters patent that gave him ※full and meere power
and authoritie to correct, punish, pardon, governe and rule§ with laws ※for
the better governement of the said people,§ but ※as neere as conveniently
may, agreeable to the forme of the lawes & pollicy of England.§ Gilbert
claimed the area for the Crown in 1583, but his death on the voyage home
ended his scheme.
We can conceptualize this formula of lawmaking authority bounded by
the laws of England as a constitutionally limited delegation of governance.
The formula appeared in letters patent and charters, as well as in royal
instructions, commissions, internal delegations of authority, gubernatorial
correspondence, colonial laws, court proceedings, and appeals to the Privy
Council. The precise language varied, as did the various types of colonial
lawmaking that were contemplated: laws, statutes, ordinances, constitutions,
acts, orders, bylaws, rules, methods, directions, instructions, as well as
court proceedings, procedures, and penalties. Common variations included
※not contrary,§ ※be as near as conveniently may, agreeable,§ and ※not repugnant.§
Many versions included a repugnancy principle (colonial laws could
4 R,equests of SirWarham St. Leger . . . Humphrey Gilbert, et al., The Voyages and Colonising
Enterprises of Sir Humphrey Gilbert, ed. David Beers Quinn (Hakluyt Society, 1940; reprint,
Nendeln, 1967), 1: 122每124; Petition to the Privy Council (1569) and ※A brief of thinges
allowable . . . (1569), 493每6.
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English Settlement and Local Governance 69
not be repugnant to the laws of England), as well as an explicit or implicit
divergence principle (the laws could diverge for local circumstances). Similar
variations on the ※laws of England§ appeared. The phrase included ※laws
and statutes,§ but ※government,§ ※customs,§ ※policy,§ ※proceedings,§ and
※rights§ also might appear. Eventually the formula was understood to bind
even self-authorized settlements: the 1641 Piscataqua River settlers gave
their freemen lawmaking authority ※not repugnant to the laws of England.§
Although the corporate form offered the capacity to raise funds, adapting
the corporate governance of the trading companies to transatlantic settlements
was a different story, as Gilbert*s half-brother, Sir Walter Ralegh
(Raleigh), discovered in attempting to use the corporation to govern a settlement.
Raleigh*s first attempt in 1585 to settle Roanoke Island failed within
a year. The letters patent had granted constitutionally limited lawmaking
authority, but had made no provision for specific forms of governance. In his
second attempt, Raleigh delegated his authority to a ※Bodye pollitique &
Corporate,§ the governor and assistants of the City of Raleigh in Virginia.5
Reflecting the settlement*s intended future social hierarchy, the governor,
John White, and the twelve assistants were each given a coat of arms. Corporate
governance was divided, with three assistants remaining in England
while the others and approximately 100 men, women, and children sailed to
Roanoke. The need for additional supplies brought White back to England
in 1587, but the fragmented corporate structure and the following year*s
fight against the Armada foiled fundraising efforts. A new company was
created to raise funds for a relief effort in 1590, but by then the settlement
had vanished. Whatever the fate of the settlers, Raleigh*s colleague Thomas
Hariot pointed out that there was ※noe especiall example§ of a corporation
for planting that had ※proued well.§6
Difficulties with the corporate form continued. In 1606, James I granted
letters patent for two companies (the Virginia Company of London and the
Virginia Company of Plymouth) and two colonies. The Plymouth Company
undertook only one venture. In 1607, Sir Ferdinando Gorges and George
Popham organized 120 settlers to land in Sagadahoc (Maine). The corporate
structure remained in England. Difficulties with supplies, bad weather, and,
perhaps most important, the governor*s return to England ended the colony
a year later. Another small corporation, the London and Bristol Company,
fared no better. Its settlement under John Guy at Cuper*s Cove, Newfoundland,
in 1610 declined after Guy returned to England several years later. By
1620, disenchantment with the corporate form led the Plymouth arm of
5 The Roanoke Voyages, 2: 508.
6 ※Thomas Hariot*s Notes on Corporations for Trade and Plantations§ (n.d.) in The Roanoke
Voyages, 1: 389.
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70 Mary Sarah Bilder
the Virginia Company to reorganize as the Council for New England with
authority transferred to a small group of titled lords.
Even when a settlement survived, governing it through a London-based
corporation proved difficult. The Virginia Company of London encountered
repeated governance problems. The initial letters patent created a
multi-layered delegation of authority: a Crown-appointed London council,
a resident council, and a requirement that the council*s laws be signed by the
Crown. In 1607, 104 men set forth to found Jamestown. In barely enough
time for the news to travel to England and back, never mind any laws
to be approved, disease and starvation reduced the colony by two-thirds.
In 1609, the company reincorporated with a single London council that
held constitutionally limited lawmaking authority and was to delegate this
authority to an appointed governor. Under a strict martial code, the 1611
Lawes Divine, Morall and Martiall, &c., Governors Sir Thomas Gates and
Sir Thomas Dale stabilized the settlement. But their discretionary authority
seemed contrary to the corporate form, so in 1612, new letters patent
returned lawmaking authority to the London corporation*s general court.
Now, the Virginia settlers were left with insufficient discretion. In 1618,
the Company issued a ※greate Charter or commission of privileges, orders,
and laws,§ delegating its authority to a subsidiary political corporation with
a council and assembly of elected representatives.7 The first assembly met
at Jamestown in July 1619. According to the 1621 ordinance, laws were to
be ratified and confirmed in England and the assembly required ※to imitate
and follow the Policy of the Form of Government, Laws, Customs, and
Manner of Trial, and other Administration of Justice, used in the Realm
of England, as near as may be, even as ourselves, by his Majesty*s Letters
Patent, are required.§
This corporation-within-a-corporation was, theoretically, a coherent
model for London-based governance, but the only settlement actually governed
that way was Bermuda. In 1612, a subsidiary venture of the Virginia
Company settled Bermuda and incorporated in 1615 as the London-based
Governor and Company of the Somer Islands (the Bermuda Company). In
1619, Bermuda followed Virginia in encouraging settlement with company
instructions to establish an assembly for local governance with the power to
make laws not ※repugnant to the laws of England,§ the governor*s instructions,
or any company laws and subject to confirmation by the company.
The assembly convened in 1620, and until 1684 Bermuda was governed as
a corporation-within-a-corporation.
No other London-based corporation governed a settlement successfully.
The Virginia Company*s financial difficulties were a constant liability for
7 Susan Myra Kingsbury, The Records of the Virginia Company of London (Washington, 1906),
3: 158.
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English Settlement and Local Governance 71
the settlement, and in 1624 the Crown repealed its letters patent by writ
of quo warranto, a procedure used to revoke borough corporate charters. Quo
warranto (※by what authority§) accused the corporation of acting outside its
charter. In 1625, the new King, Charles I, proclaimed that the government
of Virginia would ※depend upon Our Selfe.§8 The governor became a Crown
appointee bound by Crown instructions. Yet, although the corporation no
longer existed and the assembly*s legal status was in some doubt, corporate
practices continued. In 1629, answers to a set of propositions seemed to
confirm authorization of a ※grand assembly to ordain laws.§9 In 1639,
Crown instructions at last specifically acknowledged that the governor and
assembly held lawmaking authority so long as its laws were as near as
may be to the laws of England. Virginia became a royal colony after 1676,
when that designation came to signify a new institutional form that would
become dominant in the English settlements. Before then, Virginia looked
more like a corporate colony in which the Crown had simply substituted
itself for the London corporation.
Virginia was not the only settlement in which the maintenance of corporate
governance practices 每 not necessarily the legal corporate entity 每
was understood to confer self-governing authority. The English separatists
in Leyden, the Pilgrims, were not a corporation as such. London-based
investors met as a company with a president and treasurer while the planters
sailed off with a governor. Nonetheless, the settlers asserted self-governing
authority analogous to corporate authority in a combination (later known
as the Mayflower Compact) signed after the Mayflower landed outside any
authorizing letters patent. The Plymouth leaders in 1629 obtained a patent
from the Council of New England that allowed them to ※incorporate by
some usual or fitt name§ and make orders, ordinances, and constitutions,
※not repugnante to the lawes of Englande,§ and the 1636 laws referred to
Plymouth as a corporation. A governor and assistants were to be elected at a
general court, and laws passed. By 1640, Bradford surrendered all authority
under the patent to the ※Freeman of this Corporacon of New Plymouth.§
Plymouth*s experience suggested that corporate lawmaking authority
could be acquired by self-governance practices. The same desire for selfgovernance
without regard to formal corporate status appears also in Massachusetts
Bay. In 1629, a company was incorporated as the Governour and
Company of the Massachusetts Bay, a ※Bodie politique and corporate§ with
letters patent based on the defunct 1612 Virginia document but emphasizing
local government. A governor, deputy governor, and eighteen assistants
8 Clarence S. Brigham, ed., British Royal Proclamations Relating to America, 1603每1783
(Worcester, 1911), 53.
9 Calendar of State Papers, Colonial Series, America andWest Indies, 1574每1660, ed.W. Noel
Sainsbury (1860; reprint, Vaduz, 1964), 1: 100.
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72 Mary Sarah Bilder
elected by the freemen would take care of the plantation and ※Government
of the People there,§ with constitutionally limited lawmaking authority.
The location of government worried Massachusetts Bay leaders. From
the outset, the corporate form made the settlement vulnerable to dissenting
shareholders and the Crown. As conditions in England worsened for
Puritans, a minority of shareholders successfully voted to transfer the government
of the settlement to the inhabitants in New England. This transfer
alleviated the need for a corporation-within-a-corporation and placed the
physical distance of the Atlantic between settlement governance and the
Crown. Without such a transfer, a similar settlement in Providence Island
(near Nicaragua) under a similar letters patent failed by 1641.
The sectarian leaders of Massachusetts Bay clung to a belief in corporate
self-governance while treating English laws governing corporations
as avoidable technicalities. Repeatedly, Crown officials and some colonists
challenged the colony*s authority. A year into settlement, Massachusetts
Bay leaders restricted participation in corporate governance by requiring
that freemen be male members of an approved colony church. Between
1635 and 1637, the Crown conducted quo warranto proceedings to revoke
the letters patent; however, the writ was not served. Meanwhile, to bolster
sectarian governance, the government tried and banished recalcitrants:
Roger Williams, Anne Hutchinson, and John Wheelwright. In 1638, the
corporation was told to send the patent to the Crown, but Governor John
Winthrop refused to do so.
Meanwhile, events in England lessened the threat from the Crown, but
raised new challenges. In 1646, Robert Child argued that as all corporations
were subject to the laws of England, English laws now favorable to Presbyterians
should be followed; this argument was unsuccessful. When Puritan
sympathizers took over the English government, the colony*s governance
practices were left alone. In 1648, the colony*s first published law code,
The Book of the General Lawes and Libertyes, proclaimed the general court*s
authority over its inhabitants. By the 1660s, the colony coined money, executed
Quakers, denied appeals to the Crown, required oaths of fidelity, and
ignored English trade laws. Over three decades, the colony*s sectarian corporate
governance practices and lawmaking authority surpassed the legal
limits of the corporate form.
The perception that corporate governance practices created lawmaking
authority 每 in essence, a government 每 appears also in Connecticut. In the
late 1630s, Puritans similar to those in Massachusetts Bay founded the
towns of Connecticut. At first, settlers struggled over the precise terminology
for the self-authorized governments. In 1639, Connecticut referred
to itself both as a ※Publike State or Commonwelth§ and a ※Combination
and Confederation.§ That same year, New Haven 每 founded by settlers of
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English Settlement and Local Governance 73
a particular political-religious bent 每 chose a ※civil government, according
to God§ under a ※plantation covenant.§ Soon, however, both adopted
the governance practices of Massachusetts Bay, and in 1643 Connecticut,
New Haven, Massachusetts Bay, and Plymouth united under ※Articles of
Confederation in a ※firm and perpetual league of friendship§ as the United
Colonies of New England.
The sectarian tendencies of these corporate-type governments have not
always been appreciated. Yet, many dissenters who fled the Massachusetts
Bay colony initially chose other political forms of self-governance. Providence,
for example, followed a ※government by way of Arbitration§ and
insisted on ※liberty of Conscience.§ When Portsmouth and Newport later
adopted the corporate practices of a governor, deputy governor, and freemen,
they insisted on the absence of religious limitation, declaring ※the Government
which this Bodie Politick doth attend . . . is a DEMOCRACIE, or
Popular Government.§ The ※Body of Freemen orderly assembled§ had the
power ※to make or constitute Just Lawes.§ The governmental authority
of the corporation was separated from particular governance practices in
Rhode Island*s ※free Charter of Civil Incorporation and Government,§ the
first to incorporate a preexisting, self-governed settlement. The Parliamentary
commissioners granting the 1644 charter gave the towns the ※full
Power and Authority to rule themselves§ by ※voluntary consent of all, or
the greater Part of them§ as was ※most suitable to their Estate and Condition.§
The towns chose to elect a president, four assistants, and deputies. In
1647, the assembly emphasized the nonsectarian nature of its government
as ※DEMOCRATICALL . . . a Government held by the free and voluntarie
consent of all, or the greater parte of the free Inhabitants.§10
By the 1660s, corporate governance practices and a corporate charter
or letters patent had come to symbolize constitutionally limited selfgovernance.
This understanding led to the incorporation of Connecticut
and Rhode Island. With the Restoration of Charles II, both colonies grew
concerned about their political authority. Connecticut had no authorizing
document and, in 1662, quickly obtained letters patent from Charles II.
The towns became the ※Body Corporate and politique§ of the ※Governor
and Company of the English colony of Connecticut.§ Rhode Island thought
it advisable to replace its Parliamentary charter with new letters patent 每
referred to by Rhode Islanders as a ※charter§ 每 with ※full libertie in religious
concernements.§ Like Connecticut, the colony was incorporated as a
Governor and Company (governor, deputy governor, and assistants chosen
by the freemen) with constitutionally limited lawmaking authority. The
10 John Russell Bartlett, ed., Records of the Colony of Rhode Island (Providence, 1856)
[hereinafter R.I. Colony Recs.], 1: 156.
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74 Mary Sarah Bilder
charter affirmed the colony*s ※livlie experiment§ in religious liberty. Rhode
Island was now ※Company, Corporation and Collony.§11
The incorporation of Rhode Island and Connecticut meant formal recognition
of the institution of the corporation colony: a political document,
explicitly called a charter, incorporated the government (the Governor
and Company), corporate officers (governor and assistants) were elected by
freemen, and the assembly held lawmaking authority limited by the laws
of England. In theory, incorporation placed the settlements under English
law, limited their lawmaking authority, and made them vulnerable to quo
warranto proceedings. In reality, as Edward Randolph criticized, incorporation
made the New England colonies ※Independent Governm[en]ts.§12
Self-governing corporate authority on the far side of the Atlantic circumvented
English corporate laws and English Crown control. After 1663, no
more corporation colonies were created.
Seeds of American institutions can be found in this story of corporate
governance 每 but not necessarily the expected ones. Corporate authority theoretically
required prior delegation of authority from the Crown, but the
repeated failure of corporations for settlement and the development instead
of self-authorized settlements with corporate governance practices created
the perception that a government based on corporate practices could validate
itself. Recognizing the corporation*s association with self-governing authority
establishes that the desire for this governance, not simply fundraising,
led to the adoption of the corporation for settlement activity. Corporate
governance practices had created imperium in imperio. An emphasis on these
governance practices, rather than on the legal corporation, helps explain
why colonies without corporate charters nonetheless adopted the governance
structure of governors, councils, and assemblies. Long before the
Revolution, these offices and practices lost their association with the corporate
form and became instead symbols of self-governing authority and
the foundation of American institutions.With the seventeenth-century corporate
charters no longer representing Crown delegation of authority but
independent self-government, Connecticut and Rhode Island would later
retain them as new state constitutions.
The Proprietary Colony
Because post-Revolutionary American government resembled the practices
of the corporation colonies, proprietary governments often have been
11 R.I. Colony Recs., 2: 24 (Mar. 1, 1664).
12 Petition of Edward Randolph (Aug. 9, 1687) in Robert Noxon Toppan, ed., Edward
Randolph; including his letters and official papers . . . (Boston, 1899), 4: 166.
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English Settlement and Local Governance 75
neglected. Yet, the proprietary form represented an equally plausible
approach to delegating governance authority. Englishmen interested in the
settlements viewed the invention of the proprietary form as an improvement
over the corporation colony; proprietaries achieved real settlement
success. Nova Scotia (1621), Avalon (1623), Maryland (1632), and Maine
(1639), as well as Carolina (1663), New York and New Jersey (1664), Pennsylvania
(1681), and East Jersey (1682), all followed the proprietary form.
The coexistence of settlements with authority delegated through corporate
governance practices and those with authority delegated to individual
feudal proprietors indicates the absence of preconceived notions about the
appropriate manner of government for colonies.
Although we tend to think of the charter as emblematic of democratic
constitutionalism, the term charter first appeared in the early proprietary
grants. The proprietary form involved governing practices under which an
inheritable proprietorship was given by the Crown to a nobleman, a cohort
of titled lords served as councilors, and a dependent assembly assented to
legislation. The proprietor acquired social status as the highest lord and
the economic privilege of collecting quitrents (in essence, rents or taxes
on land). His political authority was similar to the English palatinates of
Durham and Chester; the social aspiration came from idealized English
manorial society.
The impetus for proprietary charters seems to have arisen both from
frustration with the corporation and the feudalistic aspirations of a few
noblemen. The oft-forgotten Sir Ferdinando Gorges played an important
role. Since 1607, Gorges had been involved in the failed colonial ventures
of the Plymouth Company. In 1620, he abandoned the corporation
approach and had the Company restructured as the ※Council . . . for the
planting, ruling, ordering, and governing of New-England§ (the Council
for New England). The Council was in form a board of proprietors, made
up of noblemen and gentlemen. It held constitutionally limited lawmaking
authority and granted land to Gorges, Council members, and friends.
Some grants were never used and reverted; others did not prove particularly
successful.
Although the Council*s grants did not prosper, others adopted the idea of
proprietary settlements. In 1621, a Scottish nobleman, SirWilliam Alexander,
obtained a charter from James I and the Scottish Privy Council naming
him hereditary Lieutenant General over Nova Scotia (New Scotland). The
charter, the first so described, gave Alexander extensive powers so long as
the laws were ※as consistent as possible§ with those of Scotland. Alexander*s
was a feudal vision: he established a Scottish-style feudal order, planned to
raise money by creating hereditary Knights-Baronet, and obtained a coat
of arms. By contemporary standards, Nova Scotia was successful, surviving
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76 Mary Sarah Bilder
until the early 1630s when the settlement was evacuated pursuant to a
French agreement.
The proprietary approach was of interest to men who were rising in
the ranks of the nobility through service to the King. In 1623, James
granted letters patent for the Province of Avalon (Newfoundland) to his
Secretary of State, Sir George Calvert 每 later to become Lord Baltimore
and a Catholic convert. Calvert had already been involved in the Virginia
Company and the Council of New England. The Avalon patent granted
him the most extensive governance authority residing in any individual in
England other than the Crown by granting him the powers of the Bishop
of Durham. Avalon failed when Calvert found the weather too cold. The
proprietary grant over the Caribbee (Barbados, the Leeward Islands, and
others) obtained by James Hay, recently elevated to Earl of Carlisle, in
the late 1620s was initially more successful, prevailing over the corporate
scheme of Courteen and Associates.
During the 1630s, proprietary grants continued to vest broad government
authority in a proprietor. In 1632, Calvert*s son Cecilius acquired
a Latin ※charter§ granting Maryland ※forever,§ responding in part to his
desire to found a settlement for Catholics. The charter established a palatine
province in which the proprietor controlled the courts and possessed lawmaking
authority limited only by the ※Advice, Assent, and Approbation§
of the freemen and the familiar repugnancy provision. In 1634, Catholic
and Protestant settlers landing in Maryland laid out manors, parishes, and
hundreds, with quitrents paid to the proprietor. In 1639, Gorges acquired
similar letters patent for the Province of Maine. Gorges*s narrative described
the patent as a ※Royal Charter,§ implicitly distinguishing the direct Crown
delegation from the Council of New England*s subsidiary ※patents.§ Gorges
envisioned an idealized England and began to settle Maine with borough
towns and cathedral cities. His death in 1647, however, ended the proprietary.
13
For the first half-century of settlement, the corporation and proprietary
coexisted as different approaches to the problem of delegating governance
and authority. In the 1640s, English political developments led Parliament
to reject the chartered proprietary with its cultural associations of lords,
dependent assemblies, and noble titles. Parliament*s sole new charter was
given to Rhode Island as an incorporated political body. This shift toward
legislative authority and Protestantism left the Maryland proprietary and its
charter vulnerable to charges of religious intolerance. In 1649, the assembly
13 Ferdinando Gorges, ※A Brief Narration of the Originall Undertakings of the Advancement
of Plantations . . . § (posthumously published 1658), in Sir Ferdinando Gorges and
His Province of Maine (Boston, 1890), 2: 65.
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English Settlement and Local Governance 77
and the newly appointed Protestant governor, William Stone, assented to,
and in 1650 the proprietor confirmed, an act permitting a certain degree
of ※conscience in matters of Religion.§ Despite the act, in 1652, the family
lost control of the proprietary to Parliamentary commissioners.
Parliament had been quick to reject the proprietary form, but the restored
Crown did not perceive it as an affront to Crown authority. Hence the Restoration
revived proprietary grants and returned Maryland to the Calverts.
Nor did the Crown bring an immediate end to corporate self-governance.
Between 1662 and 1664, Charles II incorporated Rhode Island and Connecticut
while also granting proprietary charters for two huge provinces,
Carolina (stretching from Virginia to Florida) and an unnamed territory
(including New York, New Jersey, parts of Maine, Martha*s Vineyard, and
Nantucket). Because Charles would make no additional grants until the
1680s, these 1660s charters left governance by both proprietary and corporation
once again apparently legitimate.
The Restoration grants confirmed the Crown*s willingness to give extensive
governing authority to proprietors. The 1663 Carolina charter was
given to eight lords. The multiplicity of proprietors made nonsensical the
grant of Bishop of Durham powers, but the proprietors were given constitutionally
limited lawmaking power on the assent of the assembly, authority
to grant titles and incorporate boroughs and leet manors, and the ability to
collect feudal quitrents. As in Maryland, the proprietors* vision included a
degree of religious toleration. In the 1664 letters patent for territory later
known as New York, Charles did not technically name James, Duke of York,
as lord proprietor, but conveyed similar authority: ※full and absolute power
and authority§ to govern, limited only in that the laws be agreeable and
the Crown have the right to hear appeals. James*s own 1664 grant of New
Jersey to Carolina proprietors John Lord Berkeley and Sir George Carteret,
for the nominal yearly rent of a peppercorn and, if demanded, twenty nobles
(an old coin), reveals the same understanding of the proprietary. The two
men established proprietary governance, planned to collect quitrents, and
extended liberty of conscience to the province (declaring it the one principle
that the assembly could not alter). Proprietary practices involved lawmaking
authority in the proprietor, feudal rent collection, and some degree of
religious tolerance.
Initially, proprietors controlled lawmaking. In New York the ※Duke*s
Laws§ (1665) were likely prepared by Governor Richard Nicolls and legally
trained Matthias Nicolls. In Carolina, proprietor Anthony Ashley Cooper
and John Locke produced the ※Fundamental Constitutions§ (1670), outlining
an elaborate feudal society, which legalized slavery and provided
liberty of conscience for believers in the public worship of God. Proprietorial
authority was diminished, however, by the growing cultural assumption
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78 Mary Sarah Bilder
of the legitimacy of assembly authority. In Carolina, the proprietors failed
to persuade the Carolina assembly to assent to the Fundamental Constitutions
and they never became colony law. In New Jersey representatives of
one town rejected the proprietary altogether as ※soe obscure to us that at
present we are ignorant what it is§ and refused even to pay quitrents.14 The
New Jersey proprietary*s political difficulties only increased in the 1680s
after Berkeley*s share had passed into the hands of a group of Quakers and
Carteret*s share became held by twenty-four new proprietors. In 1683, even
the Duke of York was compelled to permit an assembly with lawmaking
power subject to governor and proprietor concurrence.
This late-seventeenth-century transformation of proprietary governance
is reflected in the final proprietary, the province and seignory of Pennsylvania
given to William Penn by Charles II in a ※Royall Charter§ in
1681. Like other proprietors, Penn, a Quaker, provided religious toleration
of a sort (here for Quakers and other dissenting Protestants) and
planned to collect quitrents. Penn*s authority as lord proprietor, however,
was bounded by Crown and assembly. Penn*s charter did not include the
broad powers of the Bishop of Durham. Penn, instead, was to send his laws
to the Privy Council for confirmation or disallowance, permit appeals to
the Crown, follow Crown colonial policies, and keep an agent in London
to respond to Crown concerns. Although like earlier proprietors, Penn*s
1682 ※Charter of Liberties§ and frame of government attempted to have
the governor and council write legislation and the assembly simply accept
or reject it, by 1696 this approach was deemed no longer appropriate
to circumstance. The assembly took over lawmaking authority, proposing
and passing legislation subject to the governor*s veto and the Crown*s
disallowance.
What significance should we accord the proprietary form? From Canada
to the Caribbean, proprietors settled and governed a far larger area than
the corporation colonies. Landholding practices in the middle and southern
colonies long continued to reflect the proprietary*s feudal, manorial vision.
The proprietary*s ability to combine this vision of landholding with some
degree of religious tolerance reminds us that our association of religious
tolerance with democratic government is deeply contingent. Like the corporation,
governance under the proprietary produced a version of imperium
in imperio 每 but in this case the development of multiple authorities. This
approach, however, failed. Initial proprietor ascendancy was eroded by the
growth in the assembly*s lawmaking authority and the Crown*s desire for
direct governance. Faced with these dual challenges, almost everywhere
14 Middletown paper (1669), quoted in Charles M. Andrews, The Colonial Period of American
History (New Haven, 1937), 3: 147.
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English Settlement and Local Governance 79
the proprietor*s authority collapsed. Two proprietaries, Maryland and Pennsylvania,
survived at least in name because of the intense commitment of
their founding families, but the proprietors per se came to hold little real
authority.
The Royal Colony
By the Revolution, most colonies had become royal colonies held directly
by the Crown. Conventional accounts often imply that the path to royal
dependency was straight and that the Crown pursued a strategic course,
limited only by colonial opposition. The institution of the royal colony,
however, developed over a century in fits and starts. In 1625, the Crown
proclaimed ※there may be one uniforme course of Government, in, and
through Our whole Monarchie, That the Government of the Colonie of
Virginia shall immediately depend upon Our Selfe, and not be committed
to any Company or Corporation, to whom it . . . cannot bee fit or safe to
communicate the ordering of State-affaires.§15 But the Crown proved to
be inconsistent in following this policy. Despite sporadic efforts aimed at
Massachusetts Bay, not one other colony was reduced to dependency during
the reign of Charles I. What a uniform course of government and, equally
important, colonial dependence actually looked like remained unclear for a
century.
Policy after the Restoration depended on the Crown*s political advisor
and his vision. Sir Edward Hyde, the Earl of Clarendon and Lord Chancellor,
sought increased colonial control but used existing mechanisms: a
Privy Council committee on the colonies was established in 1660, Virginia
was given a seal proclaiming it the fifth royal dominion in 1663, and
a Crown-appointed governor and council were placed in Jamaica (seized
from Spain in 1655). New charters for Carolina (with Clarendon as a proprietor),
Rhode Island, and Connecticut followed traditional delegations
of authority. Crown commissioners attempted to end Massachusetts Bay*s
sectarian political practices and require conformity to English law, but the
Crown did not pursue their recommendation to revoke the letters patent.
After Clarendon fell from power in 1667, the Crown lost interest as it
dealt with problems caused by the Great Fire of London and war with the
Dutch.
In 1675, Sir Thomas Osborne, Earl of Danby and Lord Treasurer, resurrected
the idea of a uniform course of colonial government predicated
on Crown ascendancy. The new Committee on Trade and Plantations (the
Lords of Trade) initiated changes in lawmaking to make colonial laws the
15 Brigham, ed., British Royal Proclamations, 53.
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80 Mary Sarah Bilder
enactment of the Crown instead of the assemblies. In 1676, the Crown
rejected a proposed Virginia charter affirming assembly lawmaking power
subject only to review by the Crown and instead issued new letters patent
that placed Virginia in ※immediate Dependance upon the Crowne of England§
without mention of an assembly.16 In Jamaica, the Lords attempted to
impose Crown lawmaking modeled on English control over Ireland. In New
England, Edward Randolph cited numerous grounds on which to revoke
the corporate charters, including violations of the laws of England, refusals
to take oaths or permit political participation of members of the Church
of England, denial of appeals to the Crown, and the obstruction of trade
laws.
Colonial opposition and Danby*s fall from power meant that the Crown*s
attempt to take over colonial lawmaking went nowhere. Crown efforts to
exert greater control turned instead to creating limits on colonial lawmaking
authority by developing means to enforce the rhetoric of repugnancy
and agreeableness to the laws of England, which avoided the difficulty and
drama of quo warranto proceedings. Thus when, in 1679, the Crown established
a royal province in New Hampshire with a Crown-appointed president
and council, the assembly*s power was constrained by requirements
that the president and council approve laws and that the Privy Council
have an opportunity for review. Bermuda was similarly restructured after
quo warranto proceedings permitted a new colonial government under a
royal governor in 1684 每 a move initially welcomed by colonists tired of
the company. The Massachusetts charter was vacated in somewhat similar
fashion and Massachusetts and Maine placed in theoretical dependency on
the Crown.
Charles*s death in 1685 halted the process in some confusion, leaving
Massachusetts without a charter and Rhode Island and Connecticut as
the only remaining corporation colonies. The accession of James, Duke
of York, again altered the Crown vision of colonial government and royal
dependency. Consistent with James*s policies in England, the colonies were
envisaged as a small number of large dominions, with diminished assembly
lawmaking authority. James*s own proprietorial colony of New York was
merged with East and West Jersey, Massachusetts (and Plymouth), New
Hampshire, Maine, Rhode Island, and Connecticut into a new Dominion
of New England to parallel the old southern dominion of Virginia and the
huge Carolina proprietary. The governor-in-chief, Sir Edmund Andros, was
16 Grant from Charles II (Oct. 10, 1676) in John Burk, The History of Virginia, from its
settlement to the present day (Petersburg, 1804每1816), 2, Appendix, xl每xli; Virginia Colonial
Records Project 578, ∫ 2582, Virginia Center for Digital History, University of Virginia
(www.virtualjamestown.org/virtjam6.html).
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English Settlement and Local Governance 81
given constitutionally limited lawmaking authority and required to send
laws to the Crown for approval. By 1688, Andros obtained the charters of
the Jerseys and Rhode Island, although Connecticut*s eluded him, hidden
allegedly in an oak tree. Andros faced opposition throughout, however, and
in 1689 the Dominion of New England collapsed amid local uprisings and
the overthrow of James II.
Crown policy on the colonies changed yet again underWilliam of Orange
and his wife, Mary (James II*s daughter). More accepting of Parliamentary
authority, the Crown now confirmed colonial assembly power while maintaining
Crown supervision. In 1691, Massachusetts Bay received a ※Royall
Charter§ in which the Crown appointed the governor, and the freeholders
elected the assembly and the twenty-eight assistants of the governor*s council.
Assembly control of the council limited the royal governor*s legislative
control, but the assembly was still required to send laws to the Crown for
approval. Privy Council appeals could no longer be prevented, but jurisdiction
was limited to personal actions, permitting the colony for decades to
deny appeals over real property disputes. New York, meanwhile, was given
a Crown-appointed governor and council, an assembly, and Privy Council
review of legislation. The Jersey proprietaries, Connecticut, and Rhode
Island had their charters returned. Pennsylvania was returned to William
Penn after a brief period of Crown rule arising from Penn*s political troubles.
Maryland fared less well under a Protestant Crown unhappy with
its Catholic proprietors. Although the proprietary technically remained,
the Crown acquired the power to appoint and instruct the governor and the
Privy Council gained the power to review legislation and hear appeals. The
Crown*s overall approach to supervisory authority was confirmed in 1696
with the creation of the Board of Trade.
The trend to uniformity in Crown policy created a perception that the
proprietary and corporate charters made those colonies exceptional. In particular,
the corporate governments appeared to make repugnant laws, refuse
appeals, and flout the trade acts. They harbored pirates, coined money, competed
with English goods, and did not take care of their own defense. In
1701, the Board of Trade recommended that the charters ※be re-assumed to
the Crown; and those colonies put into the same state and dependency.§17
Proprietors and corporation governments sought to reduce their charters*
vulnerability by voluntarily responding to inhabitant and Crown concerns.
Penn*s ※Charter of Privileges§ (1701) affirmed legislative power in the unicameral
assembly. Colonial lobbying and the death ofWilliam in 1702 put a
stop to a pending revocation bill, but a new bill to create colonial uniformity
17 State of Government under the Plantations (1701), Proceedings and Debates of the British
Parliaments respecting North America (Washington, 1927), 2: 401.
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82 Mary Sarah Bilder
through royal appointments and appeals appeared in 1705, during Queen
Anne*s reign. This bill failed too. Nevertheless, Rhode Island and Connecticut
decided to permit appeals to the Privy Council and Connecticut even
voluntarily sent occasional laws over for review.
The Crown did not reduce any additional colonies to dependency by
direct policies after 1700. Nonetheless, disagreements ended proprietaries
that had multiple proprietors. In 1702, the Jersey proprietors surrendered
governance to the Crown while maintaining rights to the land. In Carolina,
the proprietors* shares became embroiled in inheritance disputes, and residents
petitioned the Crown to revoke the charter. In 1720 after a local
revolution, the Crown appointed a royal governor in South Carolina and
insisted on approving the governor for northern Carolina. In 1729 it repossessed
the proprietary charter.
With the accession of George I, antagonism to the remaining charters
quieted after another effort to recall them failed in 1715. That year, the
Crown restored the Maryland proprietary to Charles Calvert, the Protestant
great-grandson of Cecilius Calvert. In Pennsylvania, the Penns also retained
their proprietary and even appointed governors (technically deputy governors)
into the 1770s. In Rhode Island and Connecticut, the corporation
governments remained intact even after the Revolution. Uniform government
in the colonies was never completely achieved. Nevertheless, amid
the variety a common denominator form emerged: a local assembly holding
constitutionally limited lawmaking authority and overseen by either Privy
Council appeal or review.
In 1732, the last charter granted by the Crown confirmed the emergence
of this form of governance, in the process replaying the long history of settlement
practices as if it were an institutional teleology. Initially, the Crown
had delegated its governing authority to private individuals, as corporations
or proprietors. The Georgia charter thus incorporated a group of trustees as a
※body politic and corporate.§ The ※corporation§ of trustees, in turn, elected
a council that appointed a governor, subject to Crown approval. After settlement,
however, the Crown was to have supervisory governance returned
to it. The Georgia corporation would therefore dissolve after twenty-one
years, and the Crown would thereafter appoint the governor. The manner
of government under the future royal governor did not have to be stated:
he and the assembly would pass laws, and the Privy Council would review
laws and appeals to ensure no repugnancies to the laws of England.
In 1701, the anonymous author of An Essay upon the Government of the
English Plantations noted that if ※any Alterations in the Government of the
Plantations are necessary, they may be much more easily done now they
are in their infancy, than hereafter when they grow more populous, and
the Evils have taken deeper Root, and are more interwoven with the Laws
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English Settlement and Local Governance 83
and Constitutions of the several Colonies.§ Alterations in government were
indeed done more easily in infancy. Unfortunately, by 1701, the government
of the colonies was already well on the path to maturity. Every passing
decade embedded common denominator governance practices more firmly
and rooted colonial government into the colonial constitution. The failure
to reduce the colonies to complete dependency before 1701 每 indeed, the
failure of the Crown even to develop a uniform idea of what constituted
colonial dependency 每 would quietly become England*s biggest problem.
English efforts in the 1760s to impose dependency on this colonial constitution
led toward revolution.
II. GOVERNING SETTLEMENTS
By the early eighteenth century local governance in the English colonies
depended on relations among the governor and council, the assembly, and
the Privy Council. Of course, more immediate authorities governed ordinary
inhabitants* daily life. Local subdivisions 每 towns in New England,
counties in the middle colonies, parishes in the Carolinas 每 governed the
community by recording real estate and contract transactions, making probate
determinations, imposing minor fines and penalties, dividing land,
surveying highways, and policing poor and dependent individuals. Religious
associations and institutions governed religious behavior. Male heads
of households governed wives and children. White masters governed indentured
servants and enslaved Africans, African Americans, and Indians. Compacts
and treaties between English settlers and the Native American tribes,
as well as intercolonial commissions and confederations, governed relations
among the colonies and with their neighbors. Although all these forms
of governance are important, here I focus on the transformation of settlement
governance from its somewhat haphazard beginnings to a theoretically
coherent, surprisingly effective, transatlantic colonial system.
The Governor and Council
We often assume the office of governor predated settlement. Although the
origins of the office remain unclear, the word did not originally mean colony
leader. At times, it referred descriptively to the one who governs, and at
other times it signified a specific official, such as the governor-general of
a garrison. The use of the term governor in the settlement context seems
to reflect the early influence of the trading corporations that usually had
a governor, deputy governor, and assistants, all elected by the assembled
generality. But even among early corporate ventures the title given to the
chief executive officer varied. Raleigh*s 1589 venture referred to a governor
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84 Mary Sarah Bilder
but the 1606 Virginia letters patent had no such reference, whereas the
1607 Sagadahoc venture had a president. The term ※governor§ often seemed
generic, as in the ※Governor or principal Officer§ of the 1609Virginia letters
patent. By the 1630s, however, governor was becoming the preferred term
in corporate and proprietary colonies, and by the Restoration it was the
dominant term. Almost all post-Restoration charters had a governor, and
later Crown instructions named appointees as the Governor in Chief.
Historians* focus on the legislature has left the governor*s importance
often unstated. The governor symbolized the location of supreme authority
in the settlement. In the colonies that followed corporate practices, the
inhabitants selected the governor. In Plymouth, the men ※chose, or rather
confirmed, Mr. John Carver (a man godly and well approved amongst them)
their Governor for that year.§18 In Massachusetts, Connecticut, and Rhode
Island, the general assembly elected the governor. In proprietary colonies,
the proprietor appointed the governor or held the position himself. The
Crown*s gradual attempt to acquire more authority over the colonies concentrated
on controlling the governor. In the 1660s, Charles II unsuccessfully
encouraged colonies to request new charters with Crown gubernatorial
appointment. Later, James II made Edmund Andros Captain General and
Governor in Chief of the Dominion of New England. Under William and
Mary, the 1696 Navigation Act required that governors nominated by
proprietors be approved by the Crown. By the 1720s, only Rhode Island,
Connecticut, and, to a certain degree, Pennsylvania remained outside this
system of royal governor appointment and control.
Selecting the governor symbolically demonstrated authority and reinforced
loyalty to that authority. Into the eighteenth century, corporation
colonies repeatedly elected the same few prominent local residents who had
a vested interest in the success of the colony, often because of their large
landholdings or extensive mercantile assets. In the proprietaries, appointments
reflected varying theories of authority. Maryland favored Calvert
family members. Pennsylvania chose English orWelsh officers and colonial
administrators, though many switched loyalties and died in the colony. In
Virginia, early Crown appointments favored local residents, but by the late
1670s Crown governors usually came from the English military and other
colonies. Francis Nicholson, for example, had served in the English army
and then in the Dominion of New England. Appointed lieutenant governor
of Virginia (1690每2), Nicholson then became Governor of Maryland
(1694每8), Virginia (1698每1705), and South Carolina (1721每5). Although
New England governors* loyalties often remained in the colony, southern
18William Bradford, Of Plymouth Plantation, 1620每1647, ed. Samuel Eliot Morrison (New
York, 1952), 76.
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English Settlement and Local Governance 85
royal governors like Nicholson began to exemplify the emergence of career
interests in the English colonial system and the development of aspirations
for a uniform colonial policy.
Governors rarely acted al,one, instead serving with a deputy and council.
The office of deputy governor or lieutenant governor was ill defined, its
duties ambiguous and varied across the colonies. The council*s precursors
lay in the broad array of English advisory institutions, ranging from borough
councils to the trading company councils to the Privy Council. Certain New
England settlements initially used the term magistrate for council members,
but in corporation colonies the term assistant predominated. Councilor, with
its English governmental associations, was preferred in the proprietaries.
With the exception of Massachusetts, in colonies under Crown control,
governors nominated councils of twelve inhabitants. Royal instructions
required these members ※be men of good life and well affected to our
government and of good estates and abilities and not necessitous persons or
much in debt.§ The council advised the governor, sat as a court, composed
the upper house in bicameral assemblies, and consulted in certain colonies
on judicial and other appointments.
The office of governor was all important. Early governors physically
founded their settlements; their absence often doomed the settlement. The
thirty-six instructions given to Virginia Governor Sir Thomas Gates in
1609 indicate the extensive expectations placed on governors. Gates was
to sail the fleet to Jamestown; take control of public records; appoint,
consult, and dismiss counselors; ensure worship of the Church of England;
befriend and try to convert the native peoples; use martial law and chancery
power; make laws; settle a principal seat, build a fort and additional towns;
encourage trade; oversee employment; search out additional commodities;
oversee meals; keep track of letters and instructions from England; listen
to all opinions and objections; and keep secret sealed documents.
Instructions to later royal governors demonstrate the same breadth of
authority and obligation. They held the power of appointment, oath, and
oversight over other governmental branches. They were not to assent to laws
that circumvented disallowance requirements, affected trade or shipping, or
prejudiced the prerogative or property of subjects. They had discretionary
powers ranging from the discouragement of drunkenness to the licensing of
printing presses. They oversaw escheats, collected quitrents, and supervised
the value of currency. In commerce, they assisted admiralty and customs
officers, aided the royal navy (for example, by enforcing laws to preserve
trees for masts), enforced the laws regarding the plantations trade, and
encouraged the Royal African Company*s monopoly over the slave trade.
They were heads of the military, empowered to assist other colonies, but not
to declare war except against ※Indians upon emergencies.§ They promoted
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86 Mary Sarah Bilder
the established Church of England, encouraged the conversion of ※Negroes
and Indians to the Christian religion,§ and permitted religious liberty of
various degrees (in some colonies without restriction; in others to all but
※Papists§).19
Governors became conduits for Crown authority and flows of information.
They surveyed and transmitted maps. They wrote reports relating to population,
colony affairs, and injuries to English subjects by other nations. They
wrote accounts of judicial and other governmental functions, of finance, and
of commercial imports and exports (including the numbers and prices of
slaves imported). Although governors in royal colonies tried to follow the
written commissions and instructions that specifically defined their powers
and duties, governors in corporation colonies spent time trying politely and
cleverly to refuse to comply with Crown requests.
Governors also supervised colonial law. The governor and council initially
possessed significant lawmaking authority. In early settlements, particularly
in the proprietaries and royal colonies, governors authored or helped draft
legislation. Assembly lawmaking power and bicameralism would eventually
reduce this direct power over legislation, whereupon governors resorted
to the veto, used powers to summon and dissolve the assembly, and sent
controversial laws to the Privy Council for disallowance. By the early eighteenth
century, the governor, possessing only indirect control over lawmaking,
appeared nevertheless to be a bar to legislation.
Into the eighteenth century, governors retained judicial authority
through which they might try to control the interpretation of laws. In
every colony, the governor and council initially sat as the central court.
Over time, a growing caseload converted the governor and council to a
court of appeal in many civil matters. The governor*s judicial authority
over equity was particularly controversial because that control was seen as
symbolizing supreme authority. In royal colonies and certain proprietaries,
the governor and council sat as a chancery court under the theory that equity
fell within the Crown*s prerogative power. Crown lawyers interpreted the
Massachusetts royal charter as retaining equity courts under the Crown
prerogative and therefore barring the legislature from appointing equity
judges. In Pennsylvania, the assembly and governor fought over who held
this equitable authority. The corporation colonies remained controversial
exceptions by insisting that supreme equitable authority lay in their assemblies.
19 For royal instructions, see Leonard Woods Labaree, Royal Instructions to British Colonial
Governors, 1670每1776 (New York, 1935), 2 vols.; for Gates*s instructions, see David B.
Quinn, ed., The Extension of Settlement in Florida, Virginia, and the Spanish Southwest (New
York, 1979), 212每18.
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English Settlement and Local Governance 87
The Assembly
We should not take the existence of the assembly for granted, for the idea
that the governed should participate in governance was somewhat unusual.
In English boroughs and palatines, the assembled governing body was usually
referred to as a council. An assembly was a more representative gathering
with self-governing authority. Early English trading corporations held
assemblies (general courts) to enact bylaws; for example, the Presbyterian
Church of Scotland had been organized by a general assembly. In 1619, the
first colonial lawmaking gathering in Virginia adopted the term, referring
to itself as a ※General assembly.§ Specific local variants appeared (Virginia
had a House of Burgesses and Massachusetts Bay had a General Court) but
most colonies and Crown instructions referred to a general assembly. The
term remained ambiguous, however, with assembly referring to the assembly
of governor, assistants, and deputies, as well as only the lower branch of
the legislature. Over the seventeenth century, the assembly in both senses
established its existence by gaining lawmaking authority.
Once assemblies began to appear, they quickly became part of colonial
government. In Virginia and Bermuda, the assemblies that convened in
1619 and 1620 likely brought some stability to local relationships. The
Maryland proprietary charter provided for an assembly of freemen that
would help frame laws; such an assembly met possibly as early as 1635.
In 1639, the Crown officially recognized the Virginia assembly in royal
instructions. Parliamentary control during the Interregnum strengthened
colonial assemblies, and the Restoration did not have a significant adverse
effect on them. James, Duke of York, did not include an assembly in his
plans for New York, but one met in 1683. By then, Crown instructions
generally assumed the presence of assemblies.
As representative institutions, assembly composition ran the theoretical
gamut. The early freemen in Massachusetts Bay were also largely officers; the
general court thus tended to duplicate the council. In Maryland, all freemen
were initially summoned to the assembly. The need to make government
work for the inhabitants altered both approaches. In Massachusetts, the
complaints of ordinary landholders led to enlargement of the class of freemen
electing deputies. In Maryland, freemen desiring to avoid attendance at the
assembly developed an informal proxy system among themselves. Maryland
would shrink participation to elected representatives. By the 1640s, representatives
in most settlements were elected from towns or other defined
localities. Inhabitants* concerns about governance also prompted a shift to
bicameralism, which was dominant by the end of the seventeenth century.
Representatives of towns, burgesses, or counties sat in the lower house;
members of the governor*s council sat in the upper house. Pennsylvania
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88 Mary Sarah Bilder
remained an exception with an explicitly unicameral structure. Regardless
of structure, elections were seldom contested before the end of the seventeenth
century.
The idea that assemblies should exercise lawmaking authority was also
accepted rapidly. In corporation colonies, the assembly was recognized as the
supreme lawmaking authority. In the proprietaries, the assemblies* authority
over lawmaking was initially more limited, the Maryland charter simply
requiring the ※Advice, Assent, and Approbation of the Free-men§ or ※their
Delegates or Deputies§ to laws made by the proprietor. By the end of the
seventeenth century, however, assemblies were generally exercising significant
lawmaking authority. The Crown*s failed attempt in the late 1670s
at imposing lawmaking on Jamaica and Virginia only confirmed assembly
authority over law.
The Privy Council
The role of the Privy Council (strictly, the King in Council) in colonial governance
took a century to cohere. The first Virginia patent gave the Crown
a brief direct role, but otherwise early letters patents provided no formal
part, leaving the Crown to address issues through private petitions and
complaints. During the mid-1630s, a permanent committee on trade and a
commission on foreign plantations were created. The latter, underWilliam
Laud, theoretically enjoyed broad powers over the colonies 每 the power to
make laws, hear cases, and revoke charters and patents 每 but it accomplished
little. During the 1640s and 1650s, Parliamentary leaders passed the first
Navigation Act regulating colonial trade, sent commissioners to the settlements,
and began to review laws from the Barbados. Coherent governance,
however, did not occur, and various standing committees went in and out
of existence.
After the Restoration, the Privy Council turned to colonial matters, in
particular, disputes over the array of patents, charters, grants and indentures
doled out over the past eighty years. This role was explicitly acknowledged
in the 1663 Rhode Island charter, which permitted appeals to the Crown
in matters of public controversy. In private matters, for which discontented
individuals in New England had long argued for a right to appeal under
Crown prerogative or English corporate law, the Privy Council also began
to consider a formal role. In 1664, letters patent to the Duke of York for the
first time explicitly reserved to the Crown the hearing of private appeals.
The same year the Privy Council sent an investigatory commission to New
England. But the commission foundered and the Crown was distracted from
its concern over colonial affairs by more pressing foreign policy matters.
Efforts to create a coherent and cohesive role for the Privy Council developed
after 1676 with the creation of the twenty-one-member committee
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English Settlement and Local Governance 89
known as the Committee for Trade and Plantations (the Lords of Trade). At
first the committee aspired to a direct role in colonial lawmaking. Since the
1660s, laws had been sent from Barbados, Jamaica, the Leeward Islands,
and, on occasion, Virginia for sporadic review; the committee now proposed
drafting laws for the Jamaican assembly itself. The effort failed and
by 1680 the English attorney general had confirmed that Jamaica would
be governed by laws made by its own assembly. The committee settled for
a supervisory role. Instructions to the Caribbean and Virginia governors
and to John Cutt, president of New Hampshire, required the transmission
of laws so that the Privy Council could review them. By the 1680s,
the committee was also hearing appeals from the colonies. In 1681, the
Pennsylvania charter became the first both to require transmission of laws
and to reserve explicitly the Crown*s right to hear appeals. Between 1682
and 1692, such supervision spread by royal instruction and new charter to
Virginia, the Dominion of New England, Massachusetts, New Hampshire,
and Maryland.
At the turn of the century, the Privy Council began to decide in specific
instances whether colonial laws and customs fell outside the bounds
of an imperial conception of English law and customs. In 1696, it created
a new advisory committee of the whole, the Committee for Hearing
Appeals from the Plantations. The Crown established the separate Lords
Commissioners for Trade and Plantations (the Board of Trade), composed
of state officers (initially the chancellor, president, treasurer, high admiral,
secretary of state, and chancellor of the exchequer) and eight appointed and
paid commissioners, usually members of Parliament, to advise as to colonial
laws among other duties. The approach proved effective and would remain
largely in place through the eighteenth century.
Review of colonial legislation and appeals was an intriguing approach
to supervising colonial law. The Crown could claim ultimate authority and
ensure uniformity while still permitting local authorities to pass legislation,
decide cases, and diverge from English law in the first instance. After
1690, more than 8,500 acts were submitted for review from the mainland
colonies, with approximately 470 disallowed. Between 1670 and the
Revolution, around 250 cases were appealed from the mainland American
colonies, with Massachusetts, Rhode Island, and Virginia accounting for the
largest number. Laws found repugnant to the laws of England or contrary
to the royal prerogative touched on inheritance (diminishing primogeniture,
limiting dower rights, treating jointly held property as tenancy in
common); escheats to the Crown; relief of debtors; religious establishment
and religious toleration (or the lack thereof); assembly authority and powers;
regulation of attorneys; creation of courts (particularly equity, chancery, and
admiralty courts), juries, and court procedures; trade and piracy regulation;
and the creation of ports and regulation of custom officers.Yet, most colonial
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90 Mary Sarah Bilder
laws remained in force without any action from the Privy Council. Colonial
legislatures nonetheless manipulated disallowance by passing temporary
laws or reenacting substantially similar laws, notwithstanding Crown
instructions intended to prevent such evasions.
Appeals of cases provided another avenue for Privy Council decision
making as to whether a colony*s law was repugnant to the laws of England
or a permissible departure for local circumstances, although it was
more costly and dependent on individual initiative. In theory the Privy
Council heard appeals as a committee of the whole. In reality the appeal
was usually assigned to a smaller group, including either the Chief Justice
of King*s Bench or Common Pleas. Colonists retained English solicitors
and Crown law officers (often the Solicitor or Attorney General) to argue
the appeal. Between 1696 and 1720, civil, criminal, probate, and viceadmiralty
appeals were brought from Massachusetts, New York, Virginia,
Connecticut, Rhode Island, Maryland, New Hampshire, South Carolina,
New Jersey, and Pennsylvania.
Theoretically, Rhode Island and Connecticut stood outside this system.
Their corporate charters did not authorize Privy Council review or
appeals. Throughout the 1690s the Crown and various colonists repeatedly
tried to bring the colonies under the review regime, only to receive messy
manuscript copies of laws from Rhode Island and a twenty-year-old edition
of Connecticut*s statutes. Eventually, in 1715, the English Attorney General
declared that the two colonies had no obligation under their charters to
transmit laws. In the 1730s, however, Connecticut would do so voluntarily.
The colonies were less successful at barring appeals, the Board of Trade proclaiming
that appeals were an inherent right of the Crown. Despite local
legislative efforts to discourage them, appeals were heard from Connecticut
and Rhode Island. Appeals became particularly prevalent in Rhode Island
as the only path for review of laws.
By the eighteenth century, the Privy Council had become the third
branch of colonial government. Law 每 both its making and interpretation 每
involved the governor, legislature, and the Crown*s Privy Council. Rather
than an early example of separated powers, colonial government was thus
the English theory of mixed powers 每 Crown intertwined with legislative
authority, known as the King in Parliament 每 extended to the far side of
the Atlantic.
III. THE CULTURE OF LAW IN THE SETTLEMENTS
The manner and offices of colonial government depended on a culture of law.
The term legal culture has become ubiquitous in contemporary scholarship
even as the concept itself remains elusive. Rather than attempt a definition,
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English Settlement and Local Governance 91
I want instead to plumb a component of colonial legal culture 每 the world
of courts, attorneys, and law 每 in the expectation that an understanding of
the meanings that came to be attached to them can suggest avenues for the
broader inquiry into legal culture in general
Courts
We often discuss early seventeenth-century colonial courts as if they were
a separate branch of government. They were not. The institutional names
of courts 每 the General Court or Quarter Court (Virginia), the Court of
Assistants (Massachusetts and Connecticut), the General Court of Trials
(Rhode Island), the General Court of Assizes (New York), and the Provincial
Court (Maryland and Pennsylvania) 每 prove misleading. The composition
of all these courts was the same: they were all made up of the governor
and council. Some might dismiss these courts as ※courts§ because many
of the judges had not trained as attorneys, but to do so is historically
inappropriate. Procedurally, the jury usually made decisions, and judges
decided issues raised on motion by attorneys. Traditional legal training
was unnecessary for the entire bench. Questions were resolved according
to colonial laws, legal records, or English instructions (to which judges as
political officers had access). The job of attorneys 每 and likely any legally
trained judges 每 was to explain any additional English laws. Should there
be disagreement, by the end of the seventeenth century the Privy Council
(also, as we have seen, comprised of political officers) heard appeals. Because
many cases turned on whether a colonial law or practice was repugnant or
agreeable to England, political acumen was as valuable as formal study in
addressing the question, and political power and status were as potent as a
degree in ensuring respect for the answer.
The courts arranged below and above these courts in the early settlements
were not separate branches either. The diversity of early inferior courts paralleled
local political structures: there were county courts (Massachusetts),
town courts (Rhode Island), and manor courts (parts of NewYork and Maryland).
After 1660, county courts became the common inferior court across
the colonies. Justices of peace (in many places, the members of the governor*s
council) served as justices, as well as often handling immediate, local
problems on an individual basis. Despite the possibility of an appeal, many
matters never moved beyond these courts. Above the governor and council
court, in several early colonies 每 Massachusetts, Virginia, Connecticut,
Rhode Island, and even Maryland 每 was the assembly that heard cases and
appeals as a court. The theory behind this jurisdiction was most apparent
in the corporation colonies in which the legislature was seen as the supreme
colonial authority.
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92 Mary Sarah Bilder
The Crown*s growing desire for control over law altered this system. In
the 1680s, the Crown began to end where it could the assembly*s jurisdiction
as the highest court of appeal in favor of appeal to the Privy Council from the
colony*s court. New and recurring disputes over the existence and authority
of other colonial courts with jurisdiction over probate, chancery, fines and
recoveries, admiralty, and arbitration reflected this same fight for control
between the Crown (usually in the guise of the royal governor) and the
legislature.
This struggle produced the oft-claimed ancestor of modern supreme
courts, the Superior Court of Judicature, comprised of an appointed chief
justice and associate justices. This transformation should not be misconstrued
as the separation of the judicial function from colony government; to
the contrary, it was an effort to retain Crown control of the judiciary, as well
as an acknowledgment of the time constraints placed on the governor and
council by growth of the colonies. The new court structure appeared in the
Dominion of New England in 1687 and in 1681 in Jamaican legislation.
After 1691, Superior Courts of Judicature soon sat with judges appointed
by the royal governor in New York (technically the Supreme Court of Judicature),
Massachusetts, New Hampshire, and New Jersey. A Superior Court
of Judicature heard appeals and had original jurisdiction in cases involving
title to land or significant amounts of money. County sessions and inferior
courts of common pleas heard smaller cases. This new terminology spread
to Connecticut (1711) and Rhode Island (1729), although the legislature
retained the power to appoint justices. Although Pennsylvania adopted a
Supreme Court in 1722, most southern colonies retained the names of general
or provincial courts and left power in the governor and council, either
directly or by appeal.
The absence of published court opinions reinforced the perception that
courts were not a separate branch. Most proceedings remained solely of
local interest and included prosecutions for fornication, disputes over title
to land, disagreements over inheritances, contested debts, and accusations
of slander. Knowledge of the court was acquired by being in court, relying
on the oral or written reports of others, and reading the manuscript records.
When court proceedings appeared in print they reflected public interest in
the substantive matter and a printer*s hope for financial return. William
Bradford printed the court proceedings in theWest Jersey trial and execution
of Thomas Lutherland for murder under the title BloodWill Out (1692),
as well as legal materials relating to a controversy involving himself and
Quaker George Keith. Other early printed legal materials include Cotton
Mather*s account of five of the Salem witch trials, accounts of Jacob Leisler*s
rebellion, Nicholas Bayard*s trial for treason, and a significant number of
piracy trials. Apparently unique was the printing in 1720 of copies of the
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English Settlement and Local Governance 93
briefs in a Massachusetts civil case, Nathaniel Matson v. Nathaniel Thomas,
involving the question whether Massachusetts had to follow the English
law of primogeniture and entail. Descriptions of courts nonetheless occurred
in official correspondence and printed descriptions and discussions of the
colonies. From a transatlantic perspective, what the courts governed seemed
less important than who governed them.
Legal Practitioners
We have tended to assume that relatively few lawyers were to be found in the
seventeenth-century colonies. Certainly most criminal defendants entered
the court unrepresented, and many litigants in lower courts proceeded
without attorneys. In 1705, Robert Beverley of Virginia wrote, ※Every one
that pleases, may plead his own Cause, or else his Friends for him, there
being no restraint in that case, nor any licensed Practitioners in the Law.§
Yet, attorneys, legal practitioners, and other legal literates abounded in the
colonies. Their presence necessitates reconsideration of the seventeenthcentury
colonies as a world of law without lawyers.
Throughout this period, attorney or practitioner of law was the preferred
label; lawyer was the preferred epithet. In every colony, court records,
statutes, letters, and other documents demonstrate that people labeled
as ※attorneys§ appeared early and often. In England, the term attorney
had become ubiquitous between 1550 and 1650. Practitioner referred to
these attorneys, along with clerks and solicitors. Attorneys conducted routine
matters in central, local, and chancery courts; composed pleadings;
gave advice; prepared litigation; and served as clerks of the court. Early
seventeenth-century law books were aimed at these legal practitioners. Over
the course of the early seventeenth century, attorneys became differentiated
from barristers. Barristers were more likely to be from elite social circles,
instructed at one of the Inns of Court. Only barristers could argue issues of
law before King*s Bench or Common Pleas. Nonetheless, this distinction
was still developing during the early decades of colonial settlement.
Legal practitioners abounded in the early colonies, both in number and
variety. Some had English legal training. Before 1660, a significant number
of attorneys practicing in the colonies had been trained as attorneys or
barristers or had studied in the Inns of Court. Familiar with English law,
such men played a crucial role in writing early colonial legal codes in
Massachusetts, Connecticut, Rhode Island, and New York. English-trained
practitioners also served as early critics of colonial divergences from English
laws. A second group of legal practitioners was comprised of men who
held political offices that involved the law: recorders and clerks, general
attorneys, governors, and members of councils. In 1649, because people had
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94 Mary Sarah Bilder
asked magistrates (councilors) for advice in cases that later went to trial,
Massachusetts prohibited such a practice. For similar reasons, after 1670,
colonial acts prevented clerks, sheriffs, constables, deputies, and justices
of the peace from practicing law. A third group of practitioners can be
labeled simply as legally literate.Written literacy, combined with speaking
skills and basic legal knowledge, permitted competent participation in the
legal system despite the absence of formal training. Some legal literates
acted as attorneys; others limited themselves to representing themselves,
friends, associates, or dependents. Merchants comprised one category of
legal literates because the skills needed for transatlantic business and law
overlapped.
Women appeared as attorneys, representing themselves, their husbands,
or other family members. Although these appointments have been described
as ※attorney-in-fact§ appointments, the phrase was not used, and the distinction
between attorneys-in-fact and those in-law seems a later development.
Female attorneys may have often had the same knowledge and skill as male
legal literates, although they could not serve in political office. The social
response to female practice is unclear. In Maryland in the 1650s, Margaret
Brent famously served as an attorney while a single woman. She litigated
cases, served as executrix for the previous proprietor, and, in that capacity,
unsuccessfully sought to vote in the assembly as the proprietor*s attorney.
In 1658, a Maryland proclamation barred wives from acting as attorneys
for their husbands. The eventual spread of licensing procedures may have
significantly limited the number of female attorneys. Women nonetheless
continued to serve as executors, suing to collect debts, arranging property
transfers, and defending estates against claims.
After 1660, a new generation of legal practitioners arose, many of whom
acquired their legal training in the colonies. Law schools did not exist, and
the colleges that had been established, like Harvard, did not train lawyers.
Attorneys were, in essence, home-schooled: sons learned from fathers, aspiring
practitioners served as clerks or studied with prominent attorneys, and
practicing attorneys shared English law books and commonplace books of
notes. Some practitioners continued to seek English legal training. Men
from Massachusetts and Virginia on occasion traveled to England to spend
time at the Inns of Court. Though the Inns no longer provided a comprehensive
educational experience, attendance provided an opportunity to
purchase English law books, observe at the courts, and learn about the
law through available avenues. Barristers, members of the Inns of Court,
attorneys, solicitors, and clerks could also be found among the waves of
new English and Scottish migrants. Some started colonial practices; others
served in the offices of the expanding royal governments, for example, as
judges in the vice-admiralty courts.
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English Settlement and Local Governance 95
Although the colonies never acquired the hardened barrister-solicitor
distinction of English legal practice, colonial legal practice did have a hierarchy.
By the late seventeenth and early eighteenth centuries, a small group
of attorneys in each colony monopolized practice in the superior courts. In
Maryland, five or six attorneys handled most legal matters, with several
attorneys arguing 90 to 100 cases apiece. Perhaps to prevent litigants from
literally monopolizing such attorneys, Rhode Island and New York had
statutes attempting to limit parties from hiring more than two attorneys.
Colonies set fees based on the court and the type of legal work. The superior
court practice involved appeals and disputes over the application of
the laws of England 每 and generated higher fees. In the early eighteenth
century, prominent attorneys advocated for even higher fees for cases argued
on appeal and with numerous pleadings on matters of law. These men also
began to consider forming associations to seek fee and attorney regulation.
In 1709, six prominent ※practisers of the law§ in the City of New York
formed an association to lobby for fee alterations. The ability to acquire
higher fees permitted some of these attorneys to earn their living from legal
practice. 20
Provisions barring attorneys were few. Of the laws that were passed,
most focused on fees. In Massachusetts* Body of Libertyes (1641), number 26
stated that ※Every man that findeth himselfe unfit to plead his owne cause
in any Court shall have Libertie to imploy any man against whom the Court
doth not except, to helpe him, Provided he give him noe fee or reward for
his paines.§ The provision, however, was not included in the 1648 printed
Laws and Libertyes. Carolina*s Constitutions stated that ※it shall be a base and
vile thing to plead for money or reward,§ but the Constitutions were never
adopted. In the 1640s and 1650s Virginia did bar attorneys from receiving
fees 每 but it also repealed these laws and at times insisted that parties be
permitted to have men plead their case when necessary. It is unclear, in
short, whether fee prohibition had any real impact.
Instead of prohibiting attorneys, colonies began to regulate their behavior.
Statutes sought to prevent misuse of the legal system. The Massachusetts
Laws and Libertyes discouraged the ※common barrater§ who was ※vexing
others with unjust, frequent and endles sutes§ and permitted treble damages
against litigants who had ※willingly & wittingly done wrong§ to the
defendant. Virginia and Maryland made early efforts to license attorneys;
after 1670, several colonies required that attorneys be admitted by the
governor or the courts. In 1666, attorneys in Maryland took the oath of
attorney before admission to practice. In 1686, Massachusetts adopted a
20 Paul Hamlin and Charles E. Baker, Supreme Court of Judicature of the State of New York,
1691每1704 (New York, 1959), 1: 273 n. 27.
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96 Mary Sarah Bilder
version of the fifteenth-century English attorney oath, and over the next
three decades New Hampshire, New York, Pennsylvania, Delaware, Rhode
Island, Connecticut, and South Carolina followed. The colonies also occasionally
sought to regulate attorney argument. A 1682 Maryland statute
insisted that attorneys should ※speak distinctly to one Error first§ before
proceeding to the next. In 1736, Rhode Island attorneys tried to bar those
from Massachusetts in part because they ※tire the ears of the judges with
their needless repetitions, and sometimes confound and perplex the juries
with their circumlocutions and sophistry so as to obscure and darken the
case more than if it had not been pleaded at all.§ In 1718 the colony had
required that at least one retained attorney be a colony resident.21
Several colonies provided attorneys for defendants who appeared disadvantaged
by self-representation. In 1647, Virginia permitted courts to
appoint a man to plead a cause if the party might otherwise lose the case by
his ※weakeness.§22 That same year, Rhode Island allowed litigants to plead
their own case or use the town attorney. Some statutes even required that an
attorney take any case for which a fee was presented. Although English law
barred defendants in felony cases from retaining attorneys, Rhode Island in
1669 and Pennsylvania in 1701 authorized indicted defendants to retain
attorneys. Although colonial legislatures understood the problems with
attorneys 每 excessive litigation, excessive fees, excessive talking 每 they also
seem to have understood that attorneys could aid people in negotiating
authority and protesting illegitimate governance.
Colonial Law
In 1701, the anonymous ※American§ author of An Essay upon the Government
of the English Plantations noted, ※It is a great Unhappiness, that no one can tell
what is Law, and what is not, in the Plantations.§ The relationship between
the laws of England and the laws of the colonies was uncertain. Some thought
that the law of England was ※chiefly to be respected.§ Some ※are of Opinion,
that the Laws of the Colonies are to take the first place.§ Others ※contend
for the Laws of the Colonies, in Conjunction with those that were in force in
England§ at the time of settlement and those where the ※Reason of the Law§
is applicable to the colonies. A final group held that no acts of Parliament
21 Archives of Maryland: Proceedings and Acts of the General Assembly, October 1678每
November 1683 (Baltimore, 1889), 7: 361; Mary Sarah Bilder, The Transatlantic
Constitution: Colonial Legal Culture and the Empire (Cambridge, 2004), 118 (quoting 1736
Petition).
22 Colony Laws of Virginia, ed. John D. Cushing (Wilmington, 1978), 2: 349.
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English Settlement and Local Governance 97
bound the colonies unless particularly named. The author suggested that
※some Rule be established, to know what Laws the Plantations are to be
subject to§ and how far Parliamentary acts not mentioning the colonies did
※affect them.§ Until then, ※we are left in the dark.§
People had been in the dark about what was ※law§ in the colonies for
a century. The existence of the question itself was proof of the ambiguity
over the location of lawmaking authority. Non-English areas controlled
by England certainly existed before settlement of the American colonies,
but there was no uniform approach to when English laws governed. In
Ireland, the English Crown essentially could write laws for Ireland. Under
Poynings* law (1495), legislation was to be approved by the English Crown
and Privy Council before being passed by the Irish Parliament. InWales, an
English statute in 1535 replacedWelsh laws with the laws of England and
authorized the King and Council to reenact any necessary divergentWelsh
customs. In the Channel Islands of Jersey and Guernsey, customary Norman
law was followed, but the Privy Council had the right to hear appeals.
The requirement in the patents and charters that laws be ※as near as conveniently
they may be, agreeable§ or not repugnant to the laws of England
created a foundation for debate. What this constitutional limit meant in
practice was unclear. Very early arguments over the application of English
law in the New England colonies approached the question as one of corporate
law and discussed the authority under the patent. There was little else
to discuss. For most of the seventeenth century, English case law on what law
governed the colonies was largely unhelpful. Two cases discussing the rights
of Scots over land in England seemed to bear on the issue, but provided little
if any guidance. In Calvin*s Case (1608), Chief Justice Edward Coke established
a set of categories (inherited versus conquered kingdoms), but did
not explicitly discuss the question of the law in future American colonies.
The awkward fit of these categories for the mainland colonies was apparent
by 1624 when Coke and others considered the application of ※conquest§ to
the New England patent.23 Decades later, in Craw v. Ramsey (1670), Chief
Justice John Vaughan referred to the now existent ※plantations§; however,
the case involved the ability of a dominion to alter English law in England,
not the application of English law in the colonies. Through the 1660s, the
focus of the colonial law question was whether a colony*s passage of plausibly
repugnant laws was sufficiently outside the colony*s charter to justify
quo warranto proceedings. In the 1670s, the Crown*s effort to write colonial
laws rendered the question almost moot.
23 Proceedings and Debates of the British Parliaments respecting North America, ed. Leo Francis
Stock (Washington, 1924), 1: 58每61.
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98 Mary Sarah Bilder
In the early 1680s, the Crown*s acceptance of colonial assembly lawmaking
and the passage of new property laws in England shifted the focus to
whether new English statutes applied in the colonies. Of particular importance
in the colonies, the Statute of Frauds (1677) altered the requirement
for a valid will from two to three witnesses. In the colonies where wills had
long been made with two witnesses, the new English statute threatened
to invalidate two-witness wills. The relationship of the requirement to the
colonies would be litigated repeatedly. In 1683, aVirginia case addressed the
issue of whether the Statute of Frauds applied. Virginia attorney William
Fitzhugh argued for invalidation of a 1681 two-witness will because the
※Laws of England are in force here, except where the Acts of Assembly have
otherwise provided, by reason of the Constitution of the place & people.§24
In England, however, Attorney General William Jones reached a different
conclusion, which was apparently shown ※to all the then Judges of England,
Who declared the same to be the Law.§ Jones stated that the colonies were
only bound by new statutes if expressly named. Jones explained that Parliament
could not have considered ※the particular circumstances and conditions
of the plantations, especially considering no Member§ came from
there to Parliament. Moreover, the Atlantic meant that colonists would
not know of the law until after it took effect. In short, Parliament was not
expected to include the colonies in ordinary legislation, and the colonial
legislatures were the more appropriate lawmaking authorities.25
The common law was an even trickier matter. In the 1690s, cases involving
English colonial officers in the Caribbean continued to debate when the
laws of England applied. In King*s Bench, Blankard v. Galdy involved the
sale of the Provost Marshal of Jamaica*s office for seven and a half years and
whether a sixteenth-century English statute barring the practice applied
in Jamaica. Chief Justice John Holt concluded that Jamaica had been conquered,
and therefore the laws of England were not in force until so declared.
Because Jamaica had been conquered from the Spanish, the case*s application
to the seemingly not conquered mainland colonies was unclear. The
House of Lords appeal, Dutton v. Howell, involved a dispute between the
governor of Barbados, Richard Dutton, and the executors of JohnWitham,
his deputy governor, for Dutton*s alleged false imprisonment of Witham.
Among other arguments, Dutton claimed that the action could not lie
because the laws might be different in Barbados. The executors responded
that Barbados was a ※colony or plantation§ and that the common law must
24 Richard Beale Davis, ed.,William Fitzhugh and His ChesapeakeWorld, 1676每1701 (Chapel
Hill, 1963), 107 (Fitzhugh to Ralph Wormerly, Feb. 26, 1681/1682).
25 Virginia Colonial Decisions: The Reports by Sir John Randolph and by Edward Barrandall . . . ,
ed. R.T. Barton (Boston, 1909), 2: B1每2.
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English Settlement and Local Governance 99
apply in a ※new Settlement§ of Englishmen. The executors lost, despite
elaborate argument and without explanation. The cases did not provide an
answer, but confirmed the contemporary difference of opinion.
Into the eighteenth century, as the anonymous author had complained,
no one in the colonies or England could ※tell what is Law, and what is
not, in the Plantations.§ Given the lack of clarity, certain colonies sought
their own rules as to when laws of England would apply. One approach is
probably best referred to as an introduction statute, authorizing English
law in appropriate circumstances. For example, in 1700, the Rhode Island
assembly declared that, where the colony*s laws or customs did not reach
or comprehend a matter or cause, it was lawful to put into execution the
laws of England. The introduction of English laws then could be made on
a case-by-case basis by courts and officials depending on local conditions.
A second approach adopted in South Carolina in 1712 and North Carolina
in 1715 resembled later reception statutes. Here, the colony transferred
various English statutes into its own law and thereby ensured that certain
laws could be pleaded in the courts.
The idea that colonies might be more properly considered new settlements
than conquered territories gathered support in the early eighteenth
century. A new publication of Blankard inWilliam Salkeld*s Reports (1718)
claimed that Holt had declared that in ※an uninhabited Country newly
found by our English Subjects,§ the laws in England were in force. A 1720
opinion by Richard West, counsel for the Board of Trade, agreed that the
common law and statutes in affirmance prior to settlement were in force as
well as later statutes that mentioned the colonies. A 1722 memorandum
recounted a Privy Council determination of a colonial appeal apparently
from Barbados that similarly distinguished conquered countries from uninhabited
countries found out by English subjects who brought their laws
with them.26 Nonetheless, a report of Smith v. Brown and Cooper, a slavery
case, contained a statement by Holt that ※the laws of England do not
extend to Virginia, being a conquered country.§ As debates between the
proprietor and the Maryland assembly and the instructions from Connecticut
to its agent in the 1720s demonstrate, people continued to disagree over
the cases, the rules, and the factual history of the colonies 每 whether they
were plantations in countries found out by English people or conquered
lands.
26 Mr. West*s opinion on the admiralty jurisdiction, in the plantations (1720), George
Chalmers, Opinions of Eminent Lawyers on Various Points of English Jurisprudence (1814; New
York, 1971), 2: 202; Memorandum (1722), Peere Williams, Reports (London, 1740), 2:
75每6.
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100 Mary Sarah Bilder
In 1729, an opinion by the English Attorney General further complicated
matters. Earlier comments had implied that a colony assembly had to enact
post-settlement English law before it applied. The opinion concluded that
a colony could introduce such an English statute by assembly act or receive
it by ※long uninterrupted usage or practice.§ Colonial custom and practice,
in particular, the degree to which English laws had been followed, became
an additional debatable issue.
These arguments about the application of the laws of England to the
colonies, as well as the requirement that colonial lawmaking be not repugnant
to the laws of England, depended on knowledge of the laws of England.
Desirable English law books, therefore, were those that described the ※laws
of England.§ The phrase was broad and ambiguous, but seemed to include
at its core the Magna Carta, English statutes, and the principles and terms
of English common law. In selecting law books, colonial legal attorneys
favored texts that provided comprehensive overviews of English law and
were designed for general practitioners. Treatises, particularly on such
subjects as property and inheritance, offered comprehensible discussions.
Statute collections such as Pulton*s Sundry Statutes or Keble*s Statutes at Large
provided convenient access to English statutes. Guides for justices of the
peace and jurors succinctly described the court system. Form books such as
the Compleat Clerke provided necessary models for legal documents, and law
dictionaries explained vocabulary. More popular than case reports themselves
were abridgments of reports; a unique interpretation of an English
case had little value. More unusual books related to legal issues of particular
interest in the colonies: for example, charters, oaths, the liberties of
Englishmen, and divergent English customs. Early colonial publications
emphasized these same areas and included a book on indictments brought
against the Duke of York; a treatise on Parliamentary laws and customs; a
book including Magna Carta and the charter toWilliam Penn; and reprints
of books on the right to juries, on inheritance, and guides for constables and
sheriffs. In the early 1720s, Boston and Philadelphia printers both published
English Liberties; or, the Free-born Subject*s Inheritance, a volume including the
Magna Carta, fundamental laws, and comments relating to the ※Constitution
of our English Government.§ As these books were bought, borrowed,
and copied into commonplace books, a colonial vision of the laws of England
spread.
Adding to the uncertainty over the nature of colonial law was ambiguity
over the lawmaking authority present in the colonial legislatures.We tend
to gloss over the words used in colonial lawmaking 每 acts, ordinances,
laws, statutes 每 but they could convey subtle and important differences.
The Massachusetts Body of Liberties, for example, noted that the laws were
※expressed onely under the name and title of Liberties, and not in the exact
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English Settlement and Local Governance 101
forme of Laws or Statutes.§ However, it ※intreate[d]§ authorities to ※consider
them as laws.§ As the author of An Essay upon the Government of the Plantations
pointed out, it was uncertain ※how far the Legislature is in their Assemblies.§
Were the colonial assemblies little more than corporations or did they have
the power of ※Naturalization, Attainder o,f Heirs, cutting off Intails, settling
Titles to Lands, and other things of that nature§? Colonial criminal laws
seem to have been of particular concern, and a better understanding of this
issue may help explain the tendency of New England assemblies to cite
biblical sources for criminal laws. The author also wanted to know whether
※they may make Laws disagreeable to the Laws of England, in such Cases,
where the Circumstances of the Places are vastly different, as concerning
Plantations, Waste, the Church, &c.§ Colonial assemblies accepted this
justification. The South Carolina ※Negro-Act§ (1740) thus explained that
crimes that gave a ※Slave, Free-Negro, Mulatto, Indian or Mestizo§ the death
sentence were ※peculiar to the Condition and Situation of this province,
[and] could not fall within the Provision of the Laws of England.§27
The form in which colonial laws appeared similarly reflected shifting
uncertainties about authority. A printed collection of laws testified publicly
and permanently as to the location of government and lawmaking authority.
Although most colonies required laws to be read publicly or sent to towns
and churches, a printed volume offered constant access for literate readers
on both sides of the Atlantic. This accessibility thus also posed a danger 每 a
printed law book could provide evidence that colonial laws were repugnant
to the laws of England and bring about quo warranto proceedings. Before
1648, the only authoritative collection of printed colonial laws was For the
colony in Virginea Britannia. Lavves diuine, morall and martiall, &c. (London,
1612), a collection written and imposed by the governors. Although John
Cotton*s An Abstract or the Lawes of New England (London, 1641) appeared
with extensive biblical citations, the collection represented his own draft and
was never adopted by the assembly. The code bearing a closer resemblance
to the assembly*s laws, NathanielWard*s Body of Liberties (1641), remained
in manuscript and was never technically adopted.
The corporation colonies* growing confidence in their lawmaking authority
resulted in printed law collections that testified to that authority. Massachusetts
Bay was the first and only colony that domestically printed its
laws before the 1670s. The Book of the General Laws and Libertyes (Cambridge,
1648) appeared the year before Charles I*s execution as English
27 ※An Act for the better ordering and governing negroes and other slaves in this province,§
[Acts passed by the General Assembly of South-Carolina, May 10, 1740每July 10, 1742]
[Charleston: Printed by Peter Timothy, 1740每1742], 3, 9 (Early American Imprints,
Series I (Evans), nos. 40211, 40286).
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102 Mary Sarah Bilder
politics shifted away from Crown authority. The volume emphasized the
general court*s authority. Yet, the edition had a short life, as by 1651 legislative
changes left it judged ※unvendible,§ largely turned to ※wast pap*r§
and burnt.28 The assembly published a new version of the Laws and Libertyes
in 1660 and continued to print later session laws. In 1672 and 1673,
the corporate governments of Massachusetts, Plymouth, and Connecticut
had Samuel Green of Cambridge print their laws with title pages that
emphasized the ※General Court,§ not the Crown or England, and opening
pages that addressed the ※Inhabitants§ and ※Freemen§ of the colonies. In
Virginia, the Crown-appointed governor used printed laws to promote a
different authority. His collection for Crown officials, The Lawes of Virginia
Now in Force (London, 1662), prominently displayed the King*s name on the
title page and proclaimed Crown as well as assembly authority. Amidst controversies
over colonial authority, printed laws declared legislative authority
to inhabitants and to England. Edward Randolph used the printed laws to
demonstrate repugnancies to Crown officials, and the Connecticut edition
was sent to London as evidence. To avoid such scrutiny, Rhode Island never
printed its laws in the seventeenth century.
In the 1690s, colonial law printing began to flourish as the relationship
between Crown and assembly became clarified. The Crown*s requirement
that colonies send laws to England for review and acceptance of assembly
lawmaking authority combined to produce the laws of their ※Majesties§
provinces: New York (1694) New Hampshire (1699), and New Jersey
(1709). As the threat to the charters receded, corporation and proprietary
colonies also printed laws. Early editions of proprietary laws appeared in
Maryland and Pennsylvania in 1700每1. Between 1714 and 1720, these
two colonies, along with Massachusetts, Connecticut, New Hampshire,
New York, New Jersey, and Rhode Island, published official versions. The
Rhode Island, Connecticut, and Massachusetts editions carefully acknowledged
both English and local authority. With the title pages declaring in
small print his or her ※Majesties Colony,§ the charter appeared as the first
document. Rhode Island nonetheless remained wary and silently altered certain
laws to conform to current English laws. The southern royal colonies
were curiously slow in printing official collections: Virginia (1733), South
Carolina (1736), and North Carolina (1751). Despite the growth in printed
collections, as the author of An Abridgement of the Laws in Force and Use in
Her Majesty*s Plantations (London, 1704) noted, gentlemen concerned with
the plantations had ※great Difficulty§ in procuring copies of the laws to
compare ※the Laws and Constitutions of each Country, or Province, one
28 Petition of Richard Russell (1651), The Laws and Liberties of Massachusetts (Cambridge,
1929), viii (Max Farrand introduction).
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English Settlement and Local Governance 103
with another.§ The question, what is law in the colonies, remained difficult
as a theoretical and practical matter.
CONCLUSION
A century and a half after the question was asked, ※What manner of government
is to be used,§ the settlements had produced one answer. In the
two corporation colonies, two proprietaries, and remaining royal colonies, a
governor served as translator for Crown policies, an assembly held the lawmaking
authority limited by the requirement of non-repugnancy to the
laws of England, and the Crown through the Privy Council supervised the
boundaries of colonial authority.
What manner of government was this system? English settlement practices
had created a government of dual authorities, legitimizing both Crown
and colonial legislative authority. Acceptance of these dual authorities permitted
colonial governance to successfully negotiate the geographic problem
of the Atlantic. Although these dual authorities were in tension, they
were not perceived as incoherent. By the mid-eighteenth century, however,
as William Blackstone demonstrated, English political thought had
become rhetorically intolerant of dual authorities. He wrote that ※there is
and must be§ in all governments ※a supreme, irresistible, absolute, uncontrolled
authority, in which the jura summi imperii, or the rights of sovereignty,
reside.§ Blackstone placed this ※sovereignty of the British Constitution§ in
Parliament 每 the King, the Lords, and the House of Commons.29
For colonial lawyers, this construction threw into confusion two hundred
years of settlement governance. As James Wilson, in Considerations on
the Nature and the Extent of the Legislative Authority of the British Parliament
(1774), wrote, ※Dependence of the Mother Country§ 每 of allegiance to the
Crown 每 was understood ※by the first planters of the Colonies, and also by
the most eminent Lawyers, at that time, in England.§ It was, however, a
※dependence founded upon the principles of reason, of liberty, and of law§;
not the ※slavish and unaccountable§ dependence and ※unlimited authority§
contended for by the Parliament. This understanding of dependence 每 dual
authority created by supervised, constitutionally limited lawmaking 每 produced
the Revolution and the commitment to federalism. Perhaps in this
sense, institutional history helps us better understand an American manner
of government.30
29William Blackstone, Commentaries on the Laws of England (1765每1769; reprint,
Chicago,1979), 1: 49, 51.
30 James Wilson, Considerations on the Nature and the Extent of the Legislative Authority of the
British Parliament (Philadelphia, 1774), 29, 31, 34.
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4
legal communications and imperial
governance: british north america and
spanish america compared
richard j. ross
Strategies and practices for the communication of law were vital to England*s
capacity to govern its North American colonies. A diverse array of mechanisms
for exchange of legal information characterized the expanding English
empire 每 Crown instructions to governors, Privy Council review of colonial
legislation and appellate cases, petitioning, the stationing of colony agents
in London and royal officials in America, the training or immigration of
lawyers, the transmission of information through lobbying and interest
groups, the discussion of law in congregations and universities, and publication
by the linked media of print, manuscript, and speech. Here I use
the protean concept of ※legal communications§ to bundle together several
distinguishable practices both to achieve breadth and to demonstrate their
interrelationships.
In what ways did legal communications in the seventeenth- and
eighteenth-century Anglo-American world affect imperial governance?
First, the strengthening of English oversight of the colonies after the
Restoration required the cultivation of an assortment of legal communications
techniques. We are already quite familiar with the general growth
and functioning of imperial institutions and trans-Atlantic politics that this
entailed. Here, I explore the variety of different roles that legal communications
played in tying the empire together administratively and intellectually.
This exploration provides the basis for the chapter*s second and more
extensive part, which advances the main argument. In that second part,
we see that the empire*s communications practices actually had a double
nature. Although they facilitated greater imperial oversight, they also inadvertently
shielded a significant measure of local control and diversity in the
colonial legal systems themselves. An examination of the contrast between
legal communications in the English and Spanish colonial empires makes
this point clear. Comparison with Spanish America reveals the basic presuppositions
and limitations of the English system. It also suggests why legal
104
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Legal Communications and Imperial Governance 105
communications became an unreliable and inconsistent agent of imperial
centralization in the Anglo-American case.
I. THE ROLE OF COMMUNICATIONS IN THE TIGHTENING
OF IMPERIAL OVERSIGHT
Sheer distance and the slow, expensive, and fallible communications that
went with it hindered effective English oversight of the early and middle
seventeenth-century colonial legal systems. Four to twelve weeks were
required to cross the Atlantic Ocean. Under such circumstances, episodic
and inefficient supervision by central authorities could surprise no one. The
Privy Council and national tribunals at Westminster could not supervise
Massachusetts and Virginia as closely as they could Durham and Bristol.
No assize system of traveling royal judges fanned out from London to hear
disputes in the colonies. Settlers could not appeal cases to the King*s courts
atWestminster but only to the Privy Council, and these petitions were few
and far between. Royally appointed commissions seldom appeared in the
colonies. Geographic distance and slow, irregular communications encouraged
the autonomy and interpretive leeway of local elites at the expense of
their nominal superiors. Opportunities to organize colonial law and politics
in ways that differed meaningfully from seventeenth-century England
abounded. The result was far more variety among the early legal orders of
New England, New York, and Carolina than, say, among those of Devon,
Sussex, and York.
The ※imperial school§ of colonial historians has charted the movement
away from this initial seventeenth-century starting point. Their work
explains how and why, beginning in the last third of the century, the
Crown tightened supervision of the colonies. It was during this period that
institutions and governing practices coalesced to form the mature system
of royal superintendence. First, to toughen enforcement of the Navigation
Acts and enhance general supervisory capacities, the English government
expanded the powers of the customs service and founded permanent
vice-admiralty courts under Parliamentary sanction. The Lords of Trade
(1675每96) followed by the Board of Trade (1696每1782) collected information
and assembled reports on American conditions, drafted questionnaires
and instructions for royal governors, and provided lists of candidates for
colonial councils. The Board of Trade called on colonies to commission
agents who lived in London. It advised the Privy Council when that body
reviewed colonial legislation and heard appeals of judicial cases (mainly
an eighteenth-century business). Second, to reduce the autonomy of the
colonies, the Crown set out to transform proprietary and chartered colonies
into royal colonies. It also regulated judicial and legislative process through
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106 Richard J. Ross
governors* instructions and the disallowance of statutes and reorganized the
legal system to favor Superior Courts of Judicature and the governor and
his council at the expense of local tribunals.
A witness to these developments, the mid-eighteenth-century Massachusetts
governor, Thomas Pownall, complained that the new regime
of imperial governance lacked coordination in the collection and analysis
of information.1 Pownall*s concerns informed the historians of the imperial
school and their successors, and at times their work considers explicitly the
strategies that the English government used to overcome distance and the
obstacles of communication. At other points their work provides ※raw material§
that enables us to appreciate how the empire encouraged communications
as a byproduct of institutions and policies established for other purposes.
Such inadvertent prompts to information exchange, no less than the
explicit strategies, were part of the empire*s legal communications system.
Consider, first, the institutions directly charged with acquiring knowledge
about the colonies* governance and legal systems. The Crown organized
a series of Interregnum and Restoration commissions, and later the
Lords of Trade and the Board of Trade, as repositories and clearinghouses of
information. Their duty was to investigate the laws and government of the
colonies. To that end, they collected records and reports and corresponded
with governors and other officials, merchants, agents, ship captains, and
visiting settlers. They called on the colonies to commission resident agents
in London who would be available for consultation. The Lords of Trade and
the Board of Trade dispatched questionnaires to governors and demanded
periodic forwarding of important public papers and the journals of assemblies.
They used the information they collected in preparing reports for the
Crown, suggesting compromises of American disputes and recommending
the approval or disallowance of colonial laws. They standardized and
updated instructions to governors about judicature and traced how well
those instructions worked in different colonies.
These efforts significantly improved the empire*s capacity to gather and
record information. Royal servants in the mid-seventeenth century had possessed
limited and unsystematic knowledge of colonial affairs. The Lords
of Trade and especially the Board of Trade acted more methodically and
proactively, diversifying sources of information and establishing topics of
inquiry. Their efforts required a small bureaucracy of long-serving clerks
maintaining cross-referenced entry books. Nor were they alone. The Secretary
of State for the Southern Department, theTreasury and Customs service,
the Admiralty, and the Bishop of London all contributed to the Crown*s
1 Thomas Pownall, ※The Administration of the Colonies, Wherein their Rights and
Constitution are Discussed and Stated§ (London, 1971 [4th ed. 1768]), 12每27.
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Legal Communications and Imperial Governance 107
growing capacity to acquire and organize information too, though what
they learned remained split up among numerous, ill-coordinated agencies.
The Crown could demand that colonies send correspondence, reports,
laws, and agents to London, but actually obtaining them was another matter.
Royal officials complained that questionnaires and requests for public
documents went unanswered, that laws and agents simply did not arrive.
To encourage communications, the empire used incentives and coercion. If
creating proactive clearinghouses and repositories for information was the
Crown*s first strategy for mitigating distance, its second was to support those
institutions with inducements and punishments. Colonial charters, Board
of Trade correspondence, and governors* instructions all contained threats.
The Pennsylvania charter required that the proprietor keep an agent in
London to answer complaints and pay damages, or face loss of the province.
The Crown reprimanded governors who did not write frequently enough.
It threatened to withhold salary from governors who did not transmit their
colony*s laws or to remove them from office if they failed to return questionnaires
about colonial law and government.
Enticements to communicate about law were less obvious and require
teasing out. They often arose indirectly as a byproduct of trans-Atlantic
patronage and lobbying. Colonists who sent royal officials analyses of the
shortcomings of customs inspections along with suggestions for reform
might receive a position as an inspector. Those whose jobs depended on
Crown patronage, such as royal governors, would keep leading English
politicians informed about the state of colonial governance as a means of selfdefense
in local factional intrigues. Board of Trade investigations of unjust
colonial laws and official misconduct would lead complainants, defendants,
and their allies to provide considerable quantities of otherwise elusive facts
and opinions, along with supporting documents. Colonial interest groups
working through London contacts would supply the government with information
to secure influence over policymaking.
The review of colonial statutes by the Board of Trade, as advisor to the
Privy Council, provides a good example of the empire*s incentives to legal
communications. The Board and Council gained information by directly
questioning a wide range of sources about the origins and effects of colonial
laws. This much is obvious. Other effects were more subtle. First,
burdened with many responsibilities, the Board and Council might ignore
colonial laws for months or years at a time or be tempted to examine them
superficially. Knowing this, English interest groups and lobbyists favoring
disallowance or approval of laws provided the Board and Council with
their own analyses of statutes and colonial conditions. They hoped to influence
the outcome of the process and set the terms of the review, but also,
more fundamentally, to engage the attention of distracted administrators.
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108 Richard J. Ross
Second, the Board might hold off recommending confirmation or rejection
of statutes and allow them to ※lie by probationary.§ This status, a form of
administrative limbo, allowed for submission of critiques or defenses of colonial
statutes as social and economic conditions changed. Should objections
emerge, the Board could invite proponents to comment or ask the governor
for his opinion. To establish priorities and provide context, the process for
reviewing statutes not only welcomed commentary from interested parties
but also depended on it, and even was structured to encourage it.
Royal administrators not only tried to attract legal information to England
through the formation of boards to serve as clearinghouses and through
incentives and threats. They also placed in the colonies institutions and personnel
loyal to the Crown. This was the empire*s third strategy. It projected
metropolitan views of law into America by such means as establishing
permanent vice-admiralty courts, dispatching resident customs inspectors,
and appointing learned lawyers as the attorneys general and chief justices
of royal colonies.
The dissemination of English law books was a fourth method of legal communications
in the empire. Crown administrators sometimes sent to the
colonies compilations of English law specially assembled for a particular
purpose. Three times in the late seventeenth century they forwarded guidebooks
of trade regulations to customs officials in the colonies. After 1689,
they provided all new governors with printed copies of the Navigation Acts
and, on occasion, sent ※trade instructions§ prepared by the Commissioners
of the Customs. Governors trying to unravel legal tangles in their colonies
might receive descriptions of English law along with an admonition to do
justice.
Yet the distribution of English legal materials by Crown officials ran a
distant second to the colonists* own importations, reprintings, and purchases
of law books. The number and variety of English law books available
in the colonies greatly expanded in the eighteenth century. Estate inventories
and booksellers* records reveal that the most popular categories of law
books were general overviews of the English legal system; guidebooks for
local officers (such as the justice of the peace, court clerk, and constable);
legal dictionaries and compilations of forms; reports of English cases and
manuals on pleading; controversial works on natural law, jurisprudence,
and constitutional law; and treatises on property, inheritance, commerce,
criminal law, equity, and admiralty. Colonists acquired these works both to
enhance their status by appearing informed and to pursue practical goals 每
to sell land and settle estates, discharge local offices, and improve skills in
pleading and legal argument.
In the course of offering workaday knowledge, however, English law
books began to reshape the colonial legal systems by disseminating the
institutional and conceptual framework presupposed by English law. Books
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Legal Communications and Imperial Governance 109
conveyed more than their primary content 每 doctrines and procedures on a
given subject (for example, the duties of a justice of the peace). They also
alluded to English constitutional arrangements, methods of legal interpretation,
strategies for mediating among coordinate authorities and for
supervising subordinate ones, and theories of jurisprudence (including ideas
about the relations of different bodies of law). There was, of course, no uniform
metropolitan view of these matters. English law books offered a range
of opinions that could later be brought to bear on contested political, legal,
and constitutional questions. They offered colonists jurisprudential tools,
precedents, and a framework of assumptions for disputing with each other
and with the English government. Used both as forensic resources and
practical guides, English law books made metropolitan legal understandings
more prominent in the eighteenth-century colonies.
II. LEGAL COMMUNICATIONS AND THE
PROBLEM OF CENTRALIZATION
It is tempting to describe the growing presence of metropolitan law and the
tighter imperial supervision of the colonies as a centralization of power in
the English empire and to identify legal communications as an important
tool in that process.2 Indeed, historians have often spoken of centralization,
but always with significant reservations. First, the eighteenth century saw
not only improved royal control but also more sophisticated and coordinated
resistance to metropolitan superintendence. Colonists became adept
at defending their laws and legal institutions by lobbying and mobilizing
interest groups in London and by wielding anti-prerogative Whig rhetoric.
Second, centralization implies only a relative increase in the effectiveness of
royal supervision of the colonies. Settlers remained effective at deflecting
and evading unpalatable elements of Crown policy in the eighteenth century,
as before.3 Third, the term ※centralization§ obscures what Jack Greene
2 Historians commonly point to several interrelated developments as evidence of centralization
in the post-Restoration English empire: tighter administrative and judicial
control of the colonies; growing regulation of overseas trade; better exchange of information
through Crown boards and commissions, agents, lobbying, and interest group
activity; and trans-Atlantic patronage politics.
3 This theme, prominent among scholars of the English empire, finds echoes among
comparative historians as well. Silvio Zavala has linked better eighteenth-century communications
to centralization not only in British North America but also in the French,
Portuguese, and Spanish empires. Zavala treats the ※greater uniformity of administration§
visible across the Americas as evidence of a ※tendency§ toward centralization 每
that is, as a movement in relative terms, not as a completed process. Silvio Zavala, The
Colonial Period in the History of the NewWorld, translation and abridgement by Max Savelle
(Mexico City, 1962), 195.
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110 Richard J. Ross
has called the ※negotiated§ quality of the English empire 每 the way that
governmental practices took hold not because of London*s pronouncements,
but through a process of bargaining that produced consent or acquiescence.
Finally, the notion of centralization overstates the ambitions and constancy
of English imperial authorities. They did not aim at centralization as an
end in itself so much as a means to uphold prerogative and manage trade to
the benefit of the mother country and her well-connected merchant groups.
Even in this limited sense, centralizing initiatives proved inconsistent and
hesitant, subject to postponements and alterations caused by turnover in
imperial administrators and vicissitudes in English domestic politics.
However qualified, centralization did occur. Yet as it proceeded, the
colonies* legal systems remained significantly diverse and subject to local
(more than imperial) direction. Despite some measure of convergence, the
legal cultures of eighteenth-century New England, the ethnically and religiously
heterogeneous middle colonies of New York and Pennsylvania,
and the slaveholding Chesapeake were noticeably more varied than English
regions. One constant within this colonial diversity, though, was the salience
of local control of legal institutions and decision making. As Stephen Botein
observed some years ago, in the middle of the eighteenth century ※the legal
apparatus of empire still amounted to little more than an overlay on localized
habits of colonial governance.§ Colonial law responded to local more
than imperial direction for several reasons. County and town institutions
staffed by notables from the vicinity provided the backbone of day-to-day
governance. In conjunction with juries, they reflected and defended community
custom, which guided enforcement priorities and the resolution of
disputes. Even when appointed by royal governors, ground-level officials
每 constables, clerks, selectmen, justices of the peace, and sheriffs 每 undermined
distasteful imperial policies through their control of investigation
and enforcement or just through quiet inaction. Crown officials from the
governor down to the sheriffs and justices of the peace could not exercise
effective authority without the cooperation of local communities and their
representatives in the assembly. Although the assembly might clash with
towns and counties, for certainly colony-wide and truly ※local§ governments
sometimes pursued conflicting interests, they worked together to
resist spirited assertions of royal prerogative and to frustrate unwelcome
imperial placemen and programs.
The persistence of a significant measure of local control and diversity in
the colonies* legal systems in an era of imperial centralization calls for explanation.
This study of Anglo-American legal communications suggests a way
to approach the problem. The mechanisms of legal communication that
evolved in the empire between the Restoration and the onset of the Revolution
had a double nature. Although designed to foster imperial control 每 to
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Legal Communications and Imperial Governance 111
centralize 每 they also shielded a measure of local control and diversity in
the colonies* legal systems.
This point is not as easy to see from within the colonies as from outside 每
from a comparative perspective. I use the Spanish empire in the Americas
to suggest how incomplete and uneven were English efforts to communicate
and enforce metropolitan law, even after post-Restoration centralizing
reforms. The Spanish-American experience serves as a counterpoint that
highlights how distinctive features of the Anglo-American system of legal
communications unwittingly lent support to local control and diversity.
My depictions of the Spanish and English empires resemble ideal types
more than the messy, diverse, and evolving polities that they were, for I
wish to compare the forms of imperial governance in Spanish and English
America at their respective moments of maturity, rather than at the same
chronological moment. My portrayal of the Spanish empire hence focuses on
the period from c.1570每1710, after the solidification of Crown institutions
but before the Bourbon monarchy appointed intendants in the Americas and
slowly moved away from conciliar government at home. The full array of
English imperial institutions and policies (including routine Privy Council
appellate jurisdiction and review of colonial legislation, the agency system,
permanent vice-admiralty courts, and an invigorated customs service) did
not coalesce until the early eighteenth century. The mature English empire
ran from c.1700 until 1763, when it underwent significant, fatal changes
before the Revolution.
Comparing mature forms of imperial governance slights colonists* varying
orientations to the empire and the hesitancies and contradictions of
Crown policies. It also underplays historical development (more so in
Spanish America than in the English empire, where the transition from
seventeenth- to eighteenth-century governmental and communicative practices
is a central concern of my analysis). Yet the method has signal advantages.
Constructing ideal types of the legal communications systems of the
English and Spanish empires facilitates comparison by drawing attention
to their decisive features. An ideal type isolates and accentuates elements
that were durable (rather than transitory), significant (rather than trivial),
and widely shared (rather than local). In this sense, one can speak of the
jury-rigged network of people and institutions that communicated law as
a ※system.§ Though the term overstates the predictability and conscious
design of legal communications in the English and Spanish empires, it is
a useful shorthand for the cluster of practices and assumptions that made
the transmission of law work differently between Castile and New Spain,
on one hand, and between London and Massachusetts, on the other hand.
I begin with a short description of Spain*s bureaucratic and legal apparatus
in the Americas before turning to the main work of comparison.
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112 Richard J. Ross
III. COMPARISON OF LEGAL COMMUNICATIONS SYSTEMS IN
BRITISH AND SPANISH AMERICA
In the words of John Elliott, Spain maintained in America a ※highly institutionalized
empire, with an elaborate bureaucratic system dedicated to
the vigorous assertion of the Crown*s authority.§ This ※intrusive (if not
always effective) state§ involved itself ※in many different aspects of colonial
life.§ By the middle seventeenth century, Spain had dispatched approximately
400,000 cedulas (royal decrees) to its New World communities
and officials.4 At the top of the system were the Spanish Crown and the
Council of the Indies. The Council supervised and sanctioned officials,
drafted laws, and served as an appellate court in civil cases. No significant
expenditure of money or change in governmental policy could go
forward in the Spanish empire without the approval of the Council or the
Crown.5
In the Americas, two viceroys (one for New Spain and one for Peru) and
several governors represented the Crown in executing law, overseeing civil
and military affairs, and nominating the senior personnel of the church.
A series of judicial-administrative tribunals, the audiencias, served as the
backbone of the Spanish American bureaucracy. The audiencia heard civil
and criminal cases. It also served as the court of appeals in its district,
as an advisory panel for the viceroy or governor, and as a legislative body
for making local regulations. Ten audiencias operated in Spain*s sixteenthcentury
American empire; more were added later. University-trained civil
and canon lawyers (letrados) supplied the audiencia judges and a substantial
portion of the membership of the Council of the Indies. Alongside the
viceroys and audiencias stood a fiscal hierarchy that enjoyed coordinate power
in the business of overseeing royal revenue.
The ecclesiastical system further complicated the institutional structure
of the Spanish empire. Bishops reported to the Crown in matters of administration
and to the Pope in matters of faith. Though the viceroy or governor
coordinated the government of his territory and nominated most of the
lesser officeholders, audiencia judges and senior officials of the ecclesiastical
4 Clarence Haring claims that the seventeenth-century statutory compilation, the Recopilacion
de leyes de los reynos de las Indias (1681), distilled 400,000 royal cedulas down to
6,400 laws. Haring, The Spanish Empire in America (New York, 1963), 105. Prof. Mark
Burkholder (in a communication to the author) has suggested that the figure of 400,000
cedulas may be high. Still, the Spanish empire sent many times more metropolitan decrees
(laws, Crown orders, and administrative interventions) to its New World colonies than
did the English empire.
5 The Crown sometimes acted in the New World directly or through institutions other
than the Council of the Indies 每 for instance, the Council of Castile.
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Legal Communications and Imperial Governance 113
and fiscal hierarchies received their appointments directly from the Crown
and exercised substantial autonomous authority. Like the viceroys and governors,
they enjoyed the right to correspond with and appeal to the Council
in Spain. John Leddy Phelan observed a half-century ago that the Spanish
Crown had created a ※complex bureaucratic pyramid with multiple, partly
independent and partly interdependent hierarchies.§
The viceroys, governors, and audiencias oversaw smaller units of jurisdiction.
Corregidores or acaldes mayores, appointed by the Crown or viceroy, governed
towns and the surrounding countryside. These local officers exercised
political, administrative, and to a lesser extent judicial authority within
their districts. Within the towns, they worked with a municipal council
(cabildo), which heard judicial cases, distributed land, supervised communally
owned property and local infrastructure, and imposed taxes.
The Crown was suspicious of its distant officials in the Americas. A
steady stream of royal orders, decrees, and regulations sought to direct their
activities or, at least, lessen the boundaries of their discretion. The Crown
also designed residencia and visita procedures to scrutinize and control officeholders
by hearing complaints of malfeasance. At the end of a magistrate*s
term of office, an investigating judge collected and evaluated grievances
against the departing official in a residencia process. All Crown appointees,
from the viceroy down to the local corregidor and the municipal cabildo, went
through a residencia. From time to time, in a visita procedure, a specially
appointed judge heard evidence in secret in order to investigate the conduct
of an official or tribunal. The visita served various purposes: it assessed
the enforcement of particular laws, superintended troubled institutions or
wayward officeholders, re-inspired obedience among officials identifying
more with the local community than the Crown, and reported to the Council
of the Indies on the administrative or political situation. The judges
conducting the residencia or visita could advise, fine, suspend, or exile the
officials under investigation, although the Council might alter or reverse
sanctions recommended or imposed in the Americas. Through visitas and
residencias; through judicial appeals, correspondence, and complaints; and
through requests for adjustments in legislation and policy, the Council
received considerable quantities of detailed, if self-serving, information.
This sketch of the Spanish bureaucracy in the Americas can help highlight
distinctive features of English imperial governance and its system of
communications.We can see immediately that, in comparison with Spain,
England*s review of colonial legislation, judicial decisions, and official conduct
did not press down as deeply into the administrative structure and
into society. In his descriptions of Tudor government, G. R. Elton looked
for what he termed the ※points of contact§ between the Crown and the
localities (e.g., the Privy Council, Parliament, the royal court). In this vein,
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114 Richard J. Ross
consider the points of contact between the imperial center and the colonial
periphery. England maintained communications channels with officials
and institutions at the top of the colonial legal and political hierarchies.
The Privy Council heard appeals only from the highest court in the colony
(which might be the governor and his council). It would not accept an
appeal from intermediate colonial appellate courts, let alone from town,
county, probate, or orphans* tribunals or from justices of the peace. Nor
would it second-guess jury verdicts.6 The Privy Council reviewed legislation
passed by assemblies, but not town ordinances, or local customs, or the
bylaws of corporations. England sent instructions to and required reports
from governors. No similar demands went out to assembly representatives,
town selectmen, or justices of the peace.
To be sure, England assumed that by focusing communication and review
at the highest points of the political and legal hierarchies, imperial priorities
would influence colonial society indirectly. Assembly legislation might
confirm or revise local ordinances and customs and, in so doing, bring them
before the Privy Council. Judicial decisions in a colony*s highest court,
which could be appealed to the Council, would take note of and shape the
activities of lower tribunals. The governor would serve as a point of contact
between the metropolis and lesser executive and judicial officials that he or
the Crown appointed (which, in some colonies, included the critical local
figure, the justice of the peace). The governor could pass on sections of his
instructions and collect information to forward to London.7
What stands out in this picture is how mediated and indirect communication
about law was between London and colonial society. The Spanish
empire, by contrast, encouraged direct communication between the Council
and a wide variety of officeholders at the bottom as well as the top
of its multiple bureaucratic hierarchies. By creating a variety of bureaucracies
with ill-defined and overlapping jurisdictions, the Spanish Crown
created conditions for rivalry. With rivalries came denunciations of opponents
and appeals to Spain for redress and instructions. The Council of the
Indies made sure that the viceroys and governors were not the primary conduit
for communications 每 and hence a potential chokepoint. Spanish law
guaranteed colonial officials below the viceroys and governors the right to
6 In addition, the Privy Council would not hear a case in the first instance (through
※original§ rather than ※appellate§ jurisdiction). Joseph H. Smith, Appeals to the Privy
Council from the American Plantations (New York, 1950), 202, 225, 408. On the Council*s
unwillingness to review jury verdicts, see its reaction to the New York case of Forsey v.
Cunningham, in Smith, Appeals, 383每416.
7 The English government expected instructions to be private, not public, documents.
The Governor could pass on selected sections of his instructions to his Council and the
public at his discretion.
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Legal Communications and Imperial Governance 115
communicate directly with the Council over the heads of their superiors.8
Audiencia judges, treasury officials, cathedral chapters, and corregidores routinely
availed themselves of this privilege. Some towns hired attorneys in
Spain to represent their interests before the Council of the Indies. Indeed,
the Council positively encouraged these institutions, interest groups, and
officials to inform them about the state of government in their districts. On
occasion, the Council sent secret instructions to audiencia judges to report
on suspect viceroys. It also welcomed letters from ※common§ people who
were not officeholders or representatives of organized interests. Thus, the
Spanish empire anticipated, even tacitly encouraged, a struggle for influence
among its American subjects that would generate a flow of information
back to the metropolis.
The residencia and visita procedures also served to disseminate knowledge
about law in both directions across the Atlantic. In Spanish America, not
only the viceroy and audiencia but also the corregidor and his town council
(cabildo) underwent a residencia at the end of their term. The judge conducting
the residencia process 每 appointed by the Council of the Indies or
the Crown*s representative, the viceroy 每 learned much about a territory*s
customs, legal procedures, and habits of thought that he might pass on to
the Council. Because his findings might lead to the discipline or suspension
of officials, he served as a powerful mechanism for communicating imperial
understandings of law and justice. The visita, although more irregular in
timing, played a similar role. It swept up into its investigations officials
as high as the viceroy and as modest as local clerks and parish priests. No
English royal institutions carried imperial understandings of law as deeply
and directly into colonial society. 9
Spain*s system of communications, like England*s, emerged out of the
peculiar challenges of governing across the Atlantic. Neither possessed the
fiscal, military, and administrative resources to rule far-off colonies as though
they were provinces of the mother country. Distance made political decentralization
attractive. Both Crowns ceded unusually large authority (by
metropolitan standards) to local authorities in the Americas, making it
critical that both secure the consent of colonial leaders.
8 The Council tried to protect subjects corresponding about the conduct of Crown officials
in the Americas. It several times instructed viceroys, governors, and audiencia judges not
to seize or open letters so that subjects could write without fear. Recopilacion de Leyes de
los Reynos de las Indias (Madrid, 1943 [1681]), Book III, Title XVI, Laws 6每8.
9 English royal commissions in America did not play the same role as the Spanish American
visita and residencia. Royal commissions were irregular and typically focused on one
important issue, for instance, a border dispute. Even the more broad-based and intrusive
commissions, such as the one that arrived in Massachusetts in 1664, were supposed to
leave the regular processes of government untouched as far as possible.
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116 Richard J. Ross
Yet, the English and Spanish empires negotiated consent and achieved
decentralization in dissimilar ways. In Spanish America, the importance
of consent can be obscured by features of the empire*s emphasis on topdown
direction: the heavy reliance on royally appointed bureaucracies, the
absence of representative assemblies, the conversion of town councils into
self-perpetuating oligarchies, and the eagerness of the Council of the Indies
to legislate on so many minute aspects of colonial life. On closer inspection,
though, Spain*s governing apparatus and its communications system served
as a device for mobilizing consent (or at least acquiescence) and assuaging
dissatisfaction among Spaniards and creoles in America. Irritated colonists
did not protest Crown policies through assemblies, because they had none.
Rather, they sent petitions, letters, and agents to the Council of the Indies.
Or they set one section of the bureaucracy against another or played the
church off against the state. Or they pressed their opinions on administrators
informally, sounding out their willingness to accept a new tax or enforce a
proposed policy. Or when faced with troubling royal orders, they encouraged
officeholders to invoke the formula, ※I obey, but do not execute.§ Spanish
law permitted officials to suspend temporarily enforcement of an unjust
metropolitan order 每 unjust, perhaps, because the Crown did not foresee
that it would cause disorder or unwelcome consequences. This power was
not license to obstruct, however. After refusing to execute a directive, the
official was bound to explain his reasons to the Council and suggest ways of
reshaping the royal legislation to fit local conditions. It was one more way,
in other words, to generate the steady flow of correspondence, questions,
and suggestions that allowed for negotiation and compromise among the
metropolis, officeholders, and colonial interest groups.
An empire so reliant on trans-Atlantic communications as a vehicle for
securing consent and disciplining officials would not be content, as were
the English, to connect the metropolis to the top of the legal and political
hierarchies in the Americas. Instead, as we have seen, the Spanish empire
forged a multiplicity of alternative communications links that penetrated
directly and deeply into colonial society, down to parish priests, clerks,
corregidores and cabildos, and the ※common§ people.
One can find surface analogies between the communications systems of
the English and Spanish empires. Multiple arms of the English imperial
government 每 the Board of Trade, the customs service, the Admiralty, the
church of England, the agents in London 每 maintained separate communications
channels to the colonies and reported on one another*s doings.
Unclear jurisdictional boundaries between the customs service, the viceadmiralty
tribunals, the governors, and the colonial courts bred conflicts
that led to pleas to England for redress. Colonial politicians and interest
groups mobilized patrons and allies in the mother country and kept up a
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steady stream of correspondence to leading statesmen, the Board of Trade,
and the Secretary of State for the southern department. There was even
a dim echo of the Spanish doctrine of ※I obey, but do not execute.§ In
1752, the Board of Trade demanded that governors not deviate from their
instructions unless faced with an emergency. Should the governor lay aside
his instructions, he must write to England and explain his reasons.
Yet on closer inspection, these apparent similarities mask critical differences
between the English and Spanish systems. The English empire
did not use royal bureaucracies as its primary device for negotiating consent
in a decentralized empire. The Crown did not aspire to be the direct
regulator of the settlers* day-to-day affairs. It left this work to the governors,
assemblies, courts, and local officials, who collectively served as intermediaries
between the colonists and the metropolis. The English empire
focused on overseeing these intermediate authorities through such devices
as gubernatorial instructions and review of legislation and judicial appeals.
Although colonists did lobby in London, they principally expressed their
consent or opposition to royal policies through the intermediary authorities
that lay between the metropolis and themselves. In the English system of
political decentralization, the empire fastened its lines of communication
to these intermediary authorities, these points of contact. It connected to
the governors through instructions and through the trans-Atlantic minuet
of patronage. It connected to the assemblies through Privy Council
review of legislation and through gubernatorial instructions demanding
restraint of the legislatures. It connected to the courts through appeals to
London, through royally determined appointments to the chief justiceship,
and through assessment of colonial statutes establishing judicial organization
and procedures.
The English empire did not try to circumvent these points of contact and
create direct, vibrant communications routes downward into the counties
and towns and outward into the wider society. It seldom deliberately established
overlapping bureaucracies or provoked jurisdictional conflict as a way
of generating a flow of information to London. Instead, it tried, with partial
success, to route communications to and from the Crown through the colonial
governors at the expense of lesser officials and assemblies. These policies
sharply contrasted with Spanish insistence that officeholders beneath the
viceroy, from audiencia judges and corregidores to cathedral chapters and town
councils, enjoyed a legally protected ※right§ to correspond with the Council
of the Indies over the head of their superiors. Unlike Spain, England did
not build multiple, alternative channels of communications into the middle
and bottom of legal, social, and political hierarchies.
The nature and limits of England*s communications system emerged from
the economic and political conditions of its empire. Unlike Spain, England
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118 Richard J. Ross
did not require an extensive colonial state to organize the mining and
transport of precious metals. Indeed, only as staple crop exports increased
in value in the middle seventeenth century did England begin to establish
its more modest imperial structures. Nor did England need to supervise
the exploitation of the labor and tribute of indigenous peoples or try, in
any serious sense, to protect and Christianize them. England expected to
govern colonies of its own settlers who would engage, as they did at home, in
self-government under loose royal supervision. Finally, although the Crown
regulated and taxed overseas trade, it scarcely touched economic activity
within the colonies themselves (in contrast to Spain*s extensive system of
internal taxes and commercial controls).
The communications practices to which these circumstances and assumptions
gave rise were attended by important inadvertent effects. Seven particularly
notable features of the English system helped preserve a significant
measure of local control and diversity in the colonies* legal systems even
amid tightening imperial oversight.10
Legal Regulation of Institutions Versus Individual Justice
The English empire displayed relatively little interest in providing justice
to individuals injured by colonial institutions and officials. It viewed itself as
a guarantor of justice in the NewWorld, but it upheld justice in much the
same indirect and mediated fashion as it conducted government 每 by providing
oversight of colonial institutions through the review of legislation
or through instructions to governors about proper judicial and legislative
procedures. Two features of the imperial system appeared to offer justice to
individual colonists: the Privy Council*s appellate jurisdiction and the Board
of Trade*s power to investigate official misconduct. Although important,
neither called into question the English empire*s preference for superintending
governing institutions, rather than assuring individual justice.
The Privy Council accepted judicial appeals from the colonies, but it
imposed significant restrictions on what it was willing to hear. The Council
did not offer original jurisdiction. It took only appeals and then only
from the highest tribunal in a colony, which excluded cases brought from
intermediate-level courts. It refused to reconsider felony convictions. It
10 The great distances that the Atlantic Ocean created between colonies and metropoles provides
(by itself) a weak explanation of the forms of imperial governance in the Americas.
The English and Spanish empires, which both spanned the Atlantic, established different
systems of legal communications that grew out of dissimilar political and social contexts.
One goal of this chapter is to chart the presuppositions, nature, and implications (often
inadvertent) of those divergent systems of legal communications 每 both of which, in
different ways, responded to problems of distance.
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reviewed misdemeanor convictions and civil cases, but only if they involved
a substantial fine or amount in controversy 每 a variable figure, but typically
more than £200 or £300.11 The Council defined the subset of cases
amenable to review not on the basis of their conceptual difficulty or the
degree of injustice suffered by litigants. Instead, it used monetary restrictions
to focus on the economically significant disputes of socially prominent
people, a decision that excluded the vast majority of colonial lawsuits. Even
within this narrow range of cases, the provision of justice to individual
colonists ran second to other concerns. Joseph Smith, the closest student of
the empire*s appellate review, concluded that the Council concerned itself
first and foremost with policing the boundaries of colonial tribunals and
correcting their mistakes. The Council saw itself less as the last chance
for colonists to get their due than as an administrative board devoted to
keeping inferior jurisdictions in line.
Colonists could also bring to the Privy Council complaints about unjust
laws and official misconduct (as opposed to judicial error). On behalf of the
Council, the Board of Trade held hearings and considered charges, defenses,
counter-charges, and written evidence. Agents or attorneys represented parties.
Both sides supported their allegations by proof sent from America and
authenticated by a colonial seal. The process of investigating and hearing
complaints proved slow, complicated, ridden with delays, and expensive.
A party could not compel witnesses to come to London. Should they be
willing to give up months of their time to cross the Atlantic, the party
needed to bear the cost of their voyage and lodging. Testimony given in
America needed the governor*s authentication, which did not inspire witnesses
to speak freely about official malfeasance. Together, these features of
the Council*s procedure undermined its effectiveness.
The English government*s limited mechanisms for providing justice to
individual colonists and its relative lack of interest in doing so stand out
when compared to the Spanish empire*s practices. At first glance, one sees
similarities. The Council of the Indies restricted appeals by imposing the
same kinds of limitations as the Privy Council. The Council of the Indies
would not reexamine criminal convictions, nor hear civil cases sent from
intermediate courts below the level of the highest tribunals (the audiencias),
nor review civil disputes involving less than a substantial amount
in controversy (10,000 pesos). Yet, this surface similarity conceals different
assumptions about the nature of colonial governance, which made the Spanish
Crown more responsive to claims of injustice by individuals and groups.
The Spanish empire valorized the King as a paternalistic and caring ruler of
his American vassals, both Europeans and Indians. His supposedly personal
11 The Privy Council could, at its discretion, waive these requirements.
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120 Richard J. Ross
oversight of the empire*s legal system legitimated it, for the King had a
duty to listen to aggrieved subjects in the interests of justice. Although the
English monarch also had a duty to redress grievances, the empire did not
turn on an intensely personal and paternalistic understanding of kingship
in the Spanish style.
As a result of the Spanish empire*s political presuppositions, its American
subjects could find ways to approach the King and his Council of the Indies
despite the limitations on civil appeals from audiencias. First, one might
charge that officials in America acted contrary to religion and justice, the
two key concepts legitimating the empire*s legal system. Royal institutions
conceived of their mission less as following promulgated law (ley) than
as upholding justice (derecho) or giving subjects their due. Second, one
might assert that tribunals or officials in America acted corruptly. The
king and Council received frequent complaints about biased magistrates.
These petitions offered a way to review, under another guise, the validity
of an official*s legal decisions when a claim of interpretive mistake could
not be brought to the Council because of its restrictions on civil appeals.
Petitions sent to the king directly were not bound by rules limiting who
could apply, how, or why. If the king*s staff took an interest in a petition,
they would instruct the Council to consider it. These petitions abound
in the Spanish archives. Contemporaries did not take them at face value.
They knew that petitions demanding honesty, piety, and justice were often
a vehicle for pursuing feuds and institutional rivalries. Still, the king and
Council accepted, even encouraged, petitioning in order to uphold the
values important to the empire*s legitimation and to learn about the doings
of American officials.
In the English empire, a private individual could not petition the Privy
Council, Secretary of State, or the king himself by vaguely alleging the
catch-all categories of injustice and impiety. We have seen that the Privy
Council would hear appeals from the highest court of a colony and would
investigate complaints of misconduct by those able to navigate its lengthy,
formalized procedure and produce evidence authenticated by a colonial governor
(possibly the patron of the accused official). Aside from these limited
channels for hearing individual complaints, the English empire protected
justice in the New World by overseeing the structures and procedures of
colonial institutions. Consider a selection of the issues addressed in meetings
of the Board of Trade, reviews of colonial legislation, and instructions to
governors. Imperial authorities regulated colonial juror selection and qualifications,
but left intact the verdicts of particular juries. They reshaped
court organization, but did not consider the decisions of particular courts
beyond the very limited subset of appealable cases. They prescribed the
form of oaths, but did not ask whether officials, having taken the oaths, gave
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colonists their due. And they struck down colonial laws that gave judges
too much discretion, but did not investigate how the judges used their
discretion. The English empire*s preference for regulating the structures
and procedures of colonial institutions, rather than for assessing whether
individuals obtained justice, helped insulate colonial legal decision making
at the local level.
Strategies for Resisting Crown Authority
The dissimilar structure and purposes of legal communications in the
English and Spanish empires encouraged their inhabitants to emphasize
different strategies for resisting metropolitan oversight. Residents in Spanish
America used various forms of consultation 每 appeals, correspondence,
requests for guidance 每 as a device to delay or obstruct metropolitan policies.
Aggrieved Spaniards, creoles, and Indians could cast their complaints
as conflicts over jurisdiction needing review by the Council of the Indies.
Two years might go by while the Council sorted out the situation. Officials
invoking the ※I obey, but do not execute§ formula were supposed to inform
the Council of their reasons for suspending operation of a royal order and
present suggestions for fitting the Crown*s instructions to local conditions.
The Council would reply to these missives in a process that could take years.
Those who wanted to hold off a Crown initiative could set rival bureaucracies
against one another or ask the Council for instructions. Crown policies
were deflected, therefore, by arguing over who should oversee them, or by
asking advice on how better to implement them, or by offering counsel for
improving them.
Although the English settlers did some of this, the structure of their
empire*s legal communications system encouraged them to use another
strategy 每 delaying or withholding information.12 Colonies, particularly
chartered and proprietary colonies, proved reluctant to send their laws to
England for review or submitted a paraphrase of a statute instead of the
verbatim text. In periods of conflict between assemblies and governors (or
proprietors), each side might try to block the appointment or funding of
the colony*s agent to hinder the other side*s presentation of grievances.
Agents resident in London who feared an unfavorable ruling from a royal
official or board could delay proceedings by neglecting to provide needed
evidence. Governors often ignored Board of Trade questionnaires on the
state of their colony*s economy, defense, and administration. Privy Council
appellate jurisdiction also met with significant resistance, at least in the
12 To be sure, Spanish American officials also hid information from metropolitan eyes. My
point is about the relative balance of strategies in the two empires.
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122 Richard J. Ross
seventeenth century. Overt opposition faded in the early eighteenth century,
but litigants continued to face obstacles. Governors and court clerks sometimes
prevented the transmission of a written record to the Privy Council
or else provided a deliberately scanty one.
In general, over the course of the colonial period, the deliberate withholding
of information receded in importance as a legal and political tactic. From
the late seventeenth century onward, the growth of imperial institutions and
the increased density of trans-Atlantic ties through agents, merchant networks,
and interest groups made lobbying both easier and more valuable.
Increasingly, settlers and their London intermediaries tried to negotiate
with Crown officials and Parliament to shape or deflect metropolitan decisions.
Considered as one among a repertoire of strategies for dealing with
the metropolis, deliberate withholding of information underwent a relative
decline in importance.
Yet, the tactic never went entirely out of fashion. Deliberate withholding
of legal information continued to work well because the English empire
fastened its legal communications channels to the top of NewWorld legal
and political hierarchies. In comparison to Spanish colonial notables, local
elites in British North America tried more frequently to starve metropolitan
authorities of knowledge, rather than mislead and delay them by flooding
them with questions, missives, and requests for guidance. Not simply the
natural outcome of distance and irregular ocean crossings, English settlers
were better able to preserve autonomy by keeping information local because
of the structure of legal communications in the English empire.
Transatlantic Versus Intracontinental Orientations of Legal Communications
The English empire inadvertently promoted diversity and local control
by orienting legal communication more across the Atlantic (between
the metropolis and each colony) than continentally (among the various
colonies). Trans-Atlantic interactions dominated seventeenth-century
exchanges between England and the colonies 每 in commerce and the distribution
of news no less than in legal communications. By the late seventeenth
century, however, more intensive coastal trade, improvements in
the postal system, and the multiplication of newspapers facilitated the dissemination
of information and transfer of trade goods among the colonies.
As intracontinental exchanges intensified during the eighteenth century,
what was striking about law as compared to commerce or news circulation
was the extent to which trans-Atlantic communications links continued to
predominate over intracontinental contacts.
Why were legal communications distinctive in so heavily favoring trans-
Atlantic over intracontinental channels? First, Crown officials commonly
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directed metropolitan review and discussion of law toward individual
colonies, rather than toward regions or the continent as a whole. This
emphasis on the colony as the basic unit of analysis and interaction was
not a necessary feature of the English empire. By the later seventeenth century,
trade increasingly passed through regional and continental networks;
by the mid-eighteenth century, the empire often employed regional military
commands. The customs official and merchant thought in terms of trade systems,
the soldier in terms of theaters of operation (which cut across colonial
boundaries). Law, by contrast, operated within jurisdictions. Colonies, not
regions, served as the basic legal and political jurisdictions of the empire.
As a result, the empire*s major legal communications channels connected
London to individual colonies. The Privy Council subjected the legislation
of each colony to a separate review. It exercised its appellate jurisdiction, as
Joseph Smith observed, ※not as a court for an empire, but as a court of last
resort for each particular jurisdiction.§ The Board of Trade dealt with each
colony through its resident agents in London. It badgered those that failed
to send an agent, and it resisted the stationing of multiple agents representing
the governor, proprietor, or assembly alone, rather than the colony as
a totality. England placed royal governors, attorneys general and chief justices,
and vice-admiralty judges in given colonies, where they tended to stay
until removed from power or reassigned. Spain circulated Crown servants
by routinely and deliberately promoting officials from a lesser post in one
part of the empire to a higher post somewhere else, a policy that England
seldom followed before the nineteenth century.13 Spain*s posting of viceroys
in particular audiencias elevated these centers relative to other audiencias that
needed to stay in contact with the viceroy and take account of his policies.
England did not encourage regional interactions by making one colonial
capital the administrative center for its neighbors.14 Its officials focused
on the colonies in which they lived. Taken together, the English empire*s
choices downplayed intracontinental legal communications in favor of links
between particular colonies and the metropolis.
Legal knowledge traveled through other routes as well 每 through law publishing
and the training of practitioners. These too followed trans-Atlantic
more than intracontinental courses. The printed legal materials available
in the American settlements were a mix of imports from England, reprints
of English titles, and limited domestic production (largely of statutes and
13 Despite the circulation of royal appointees, legal communications in the Spanish empire
flowed more heavily and rapidly across the Atlantic than between the viceroyalties of
New Spain and Peru.
14 There were exceptions 每 most prominently, the Dominion of New England 每 but these
were unusual and short-lived.
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124 Richard J. Ross
primers for local officials). Apprenticeship within one*s home colony provided
the foundation of legal instruction, supplemented by the immigration
of learned practitioners from England and the occasional American who
attended the Inns of Court. The training of lawyers, like the dissemination
of law books, largely took place within colonies, rather than regions. This
would change. By 1820, universities and proprietary law schools (such as
Litchfield) took in students from all around the country. Massachusetts and
New York emerged as centers of law publishing, not only for their own
state materials but also for texts of national interest. But in the colonial
period, regional and continental law training and publishing, though not
unknown, were of far less significance. The pre-Revolutionary settlements
also lacked integrating mechanisms characteristic of the nineteenth century:
national legislative and judicial institutions, judges riding circuit across a
group of states, and courts engaging with decisions from other American
jurisdictions (a difficult matter before the routine publication of American
cases began in the Early Republic). In short, the patterns of colonial law
training and publishing, like the practices of imperial governance, disposed
Connecticut, Pennsylvania, and Carolina to exchange knowledge about law
more with England than with each other.15
Given the prevalence of trans-Atlantic over intracontinental channels,
what follows? From one perspective, this pattern facilitated the eighteenthcentury
※anglicization§ of colonial law. The trans-Atlantic orientation of
legal communications in the English empire encouraged a convergence of
the diverse seventeenth-century colonial legal systems around metropolitan
norms. From another perspective, though, the trans-Atlantic bias in
communications inadvertently preserved local autonomy and diversity by
retarding the capacity of any one colony to emerge as a standard for the
others. Colonies might converge on the legal practices and values of the
metropolis or of each other. The prevalence of trans-Atlantic legal communications
facilitated the first of these possibilities (anglicization) while
15 As always, there were exceptions 每 institutions and practices that encouraged the exchange
of legal knowledge among colonies. The Board of Trade often standardized instructions
about legal affairs, sending the same ones to governors in a variety of colonies for years at a
time. The Customs Service appointed a surveyor-general who traveled among the colonies,
in the process sharing expertise about trade regulation. A few of the agents residing in
London served several colonies at once and learned to defend the legislation and judicial
practices of multiple jurisdictions. Colonies borrowed statutory law from one another.
Advocates preparing appellate cases for review by the Privy Council sometimes compared
the law of their jurisdiction to that of other colonies in search of commonalities. My argument
for the predominance of trans-Atlantic over intracontinental legal communications
is ultimately a relative one; it is a point about balances.
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discouraging the second (emergence of a colonial standard). Settlers knew
less about the activities and assumptions of each other*s legal systems than
they did about England*s. They constantly debated which provisions of
England*s law they should adopt, reject, or meld with their own, but they
did not need to adopt a position on each other*s legal practices 每 assuming
that they could learn about more than published statutes, no easy matter.
As a result, no colony served as the dominant clearinghouse of legal
information for the others. None obtained a heightened power to block,
redirect, or frame circulating legal knowledge. None provided the home
for institutions that reviewed and interpreted law for the others or taught
practitioners drawn from all over British North America. None emerged as
the standard for the others to mimic or define themselves against. The patterns
of communications in the empire, then, simultaneously encouraged
anglicization and preserved a measure of diversity by muting the pressure
on colonies to orient toward the legal cultures of their neighbors and
rivals.
The Position of Native Peoples Within the Legal System
The English empire*s relative lack of interest in the internal legal affairs of
Native Americans reduced metropolitan incentives to oversee the settlers*
laws vis-`a-vis the Indians. This reluctance to intervene, which stands out
strikingly in comparison to the Spanish experience, helped preserve local
control and diversity in the colonists* legal systems. Native Americans
maintained a variety of relationships to the colonists* law.16 These can be
placed on a spectrum. Indians who resided in colonial towns submitted to
the settlers* legal system. Members of tribes that acknowledged English
sovereignty but lived collectively in an Indian community near or within
colonial borders maintained a more selective, ad hoc connection to the
settlers* law. They commonly invoked or were forced into the colonists*
legal system in intercommunal disputes between Native Americans and
Europeans (typically involving crimes, sex and marriage, land sales and
boundaries, and commercial exchanges). Colonial authorities were eager to
expand the theoretical reach of their jurisdiction over Indian communities
in order to pull important disputes into their courts at their discretion,
but in practice they left largely untouched legal matters arising among
Native American themselves. Finally, beyond the frontier of settlement,
independent tribes exercised nearly unqualified sovereignty. They might
accept the conclusions of the colonists* law in particular cases, such as
16 For more on these matters, see Chapter 2 in this volume.
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126 Richard J. Ross
intercommunal crimes or land transactions, but only as a result of diplomatic
negotiations.
Although the relationship of Native Americans to colonial law was highly
variable, what stands out is the relatively limited scope of English ambitions,
at least in comparison to the Spanish. English settlers aimed to define to their
own advantage the terms of social and economic interaction 每 in particular,
to regulate violence and oversee the dispossession or sale of Indian land. They
sought their own protection, enrichment, and aggrandizement. However,
settlers showed markedly less interest in reshaping the legal relations of
Native Americans among themselves. The colonists made no systematic
effort to anglicize the legal systems of Native American communities in the
backcountry or beyond the frontier on the analogy of the (largely ineffective)
campaign of Christianization.
The Spanish empire intervened more forcefully and self-consciously to
reorder the law of Indian communities. Demography, reinforced by an
ideological commitment to Christianizing unbelievers, proved decisive.
Although historians disagree about the size and distribution of the indigenous
and European populations, they agree that in the early decades of
the conquest, tens of thousands of Spaniards confronted tens of millions of
Indians. They also concur in finding that indigenous populations declined
drastically in the sixteenth century before stabilizing and slowly recovering
in the seventeenth or eighteenth century. In 1518, Central Mexico contained
ten to twelve million native inhabitants (or perhaps as many as twenty-five
million) before the population decreased to one or two million at the turn
of the seventeenth century. Approximately nine million Indians (perhaps
as many as eleven and a half million) lived in Peru in 1520. Only about
600,000 remained in 1630. Spaniards would remain a minority throughout
the colonial period. When they established the political and legal institutions
of their empire in the middle sixteenth century, they constituted a
tiny minority.
The colonists of British North America encountered far smaller indigenous
populations, which they supplanted in their core areas of settlement.
Perhaps 700,000 Native Americans lived along the Atlantic coastal plain
and in the Piedmont regions that provided a home to the European settlers.
Their numbers declined by 80 to 90 percent over the course of the
colonial period, falling from hundreds of thousands to tens of thousands.
Meanwhile, European populations rapidly increased from approximately
70,000 in 1660 to about 1,270,000 in 1760. The displacement of Native
Americans had not only a numerical but also a geographical component.
Only a minority of the surviving Indians continued to reside in the core
areas of European settlement. Most lived in the backcountry or behind a
porous and rapidly shifting frontier.
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Spread out in their vast American possessions and surrounded by large
numbers of indigenous peoples, the Spanish did not want to drive their
pool of laborers and potential converts beyond a frontier. Nor could they.
There were Indian nations beyond the effective reach of Spanish power
in the Americas, and in that sense, there was a frontier. But within the
sprawling territory under Spanish control the colonists did not think that
frontiers demarcated densely settled colonial areas from autonomous or
semi-autonomous Indian areas, as in English North America. Spaniards
and creoles instead expected native peoples to participate, if reluctantly, in
the new colonial society.
As a result, powerful social and political forces encouraged Indians
to learn to manipulate the settlers* legal system and helped introduce
increasing knowledge of the colonists* law into indigenous communities.
The Spanish empire replaced the upper reaches of the old native political
and administrative hierarchies, reorganized Indian towns, and used
legal institutions to mediate the colonists* demands for land, tribute, and
labor. Although claiming to respect ※good and just§ indigenous customs,
Spaniards reserved the right to decide which customs should be upheld and
used this power to Hispanicize Indian customary law. In part to safeguard
Indians out of a sense of paternalistic responsibility, and in part to prevent
over-intensive exploitation by local settlers from interfering with more
sustainable exploitation by provincial and metropolitan elites, the Crown
set up institutions to protect the legal rights of native peoples. Viceroys
in New Spain and in Peru created special tribunals, employing simplified
procedures, to hear cases brought by Indians. They commissioned the fiscal
[Crown attorney] of the audiencia or the protector de indios to provide representation
in court to Indians and, in the process, teach principles of Spanish law.
Within two generations after the Spanish conquests, native communities
became adept and aggressive litigators over such matters as land ownership
and boundaries, labor and tribute obligations, water and grazing rights, and
succession to chieftanships. They challenged decisions of local officials by
appealing to higher reaches of the bureaucracy. Although they resorted less
frequently to the colonists* law for resolving disputes within a community,
they did engage in repeated litigation against Spanish settlers, officials,
and other Indians groups. In the process, the Castilian laws, procedures,
and terminology used in the colonists* courts and bureaucracy seeped into
native communities. The oversight of these communities by the alcaldes
mayores and corregidores only increased the importance of Castilian law. By
the beginning of the seventeenth century, native peoples were far along in
fusing their traditional customs with elements of the colonists* law.
The situation in Spanish America highlights how seldom the English
tried, for all their use of law to tilt political and economic interactions in
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128 Richard J. Ross
their own favor, to reorder the legal folkways of indigenous peoples as an
end in itself. The English typically did not encourage Native Americans to
adopt the colonists* laws in their internal affairs or to submit intracommunal
disputes to the settlers* tribunals. (The ※praying towns§ of Massachusetts,
like other selected Indian groups embedded in the colonists* territory, were
an exception to this generalization.) England*s relative lack of interest in
the legal transactions of Native Americans in the backcountry and on the
frontier was possible because, unlike the Spanish, they did not expect most
Indians to be enveloped within their empire under their paternalistic supervision.
Whereas the Spanish empire styled indigenous peoples as vassals
of the Crown whose ※good and just§ customs should be applied by the
colonists* courts in intracommunal cases, the English considered Indians as
foreigners, absent an affirmative act that changed their status. The English
did not have a serious commitment to ※civilizing§ Native Americans by
reordering their legal systems. Perhaps most important, although English
settlers wanted Indian land, they did not live off the Native Americans*
labor and tribute.
The implications of all these differences from Spanish America were
significant. By Spanish standards, England had little incentive to project
metropolitan law into Native American communities or oversee how its
colonists* legal systems dealt with Indians. In English America, the legal
system did not address in any detail the extraction of labor and tribute from
indigenous peoples or coordinate large-scale economic enterprises (such as
the mining and shipment of South American bullion) that drew on Indians
from numerous local jurisdictions. The legal system did not oversee
the ※anglicization§ of the Indians* legal folkways or protect them from
heedless exploitation by local elites. As a result, one does not find institutions
and offices along the lines of the General Indian Court of New
Spain or the protector de indios. One does not see the empire purposefully disseminating
English law to indigenous peoples. Unless colonists recklessly
provoked Indian wars, the English empire saw little reason to intervene
as colonists set the terms on which their legal systems regulated, or left
alone, Native Americans. The scant presence of the metropolis in this critical
area helped preserve diversity and local control in the colonies* legal
systems.
Variation in Legal Communications Channels
From the mid-sixteenth century onward, the same group of royally authorized
institutions were established throughout the Spanish empire*s core
regions of New Spain and Peru 每 viceroy or governor, audiencia, corregidores
or acaldes mayores, cabildos, the fiscal administration, and the residencia and
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visita procedures.17 The British North American settlements lived under a
much more diverse set of governing institutions. The leading agencies of
the English empire 每 the Board of Trade, Privy Council, Secretary of State
for the Southern Department, Treasury, Admiralty, and customs service 每
exercised jurisdiction over all of British North America. Yet despite the
continental scope of their jurisdiction, they were unable to maintain uniform
legal communications channels with each settlement. These networks
varied colony by colony. Although the Board of Trade continually recommended
that all colonies be put on the same footing, this proved impossible,
impeding imperial efforts to superintend the colonial legal systems.
The first, and most basic, form of diversity was the division of British
North America into royal, proprietary, and corporate colonies. The
eighteenth-century empire forged its strongest links with royal colonies
and weaker connections with the proprietary colonies and the corporate
colonies of Connecticut and Rhode Island. Consider Privy Council review of
colonial legislation. The charters of most corporate and proprietary colonies
did not require them to submit statutes to the Council for confirmation.
By the early eighteenth century the Council had managed to develop a
rationale for reviewing their ordinances, reasoning that because all charters
forbad ordinances repugnant to the laws of England, the Council enjoyed
implicit power to serve as the judge of ※non-repugnancy.§ On this ground
it struck down a handful of statutes from corporate and proprietary colonies
(or else ordered proprietors to do so). But this makeshift process had its
costs. Because royal charters explicitly required the submission of legislation
to the Privy Council, and because royal governors were appointed by
the Crown, compliance could be monitored routinely. In non-royal colonies,
the Council had to contend with foot-dragging proprietors and elected corporate
governors bickering over the constitutional legitimacy of legislative
review without explicit warrant. The Board of Trade and the House of Lords
several times proposed that all colonies be required to submit laws to the
Council, contrary charter provisions or precedents notwithstanding, but
without success. Predictably, the Council*s oversight throughout was less
sustained and effective in the proprietary and corporate colonies. Overall,
it disallowed some 5 percent of the statutes of the continental colonies,
but only three ordinances from the corporate colonies of Connecticut and
Rhode Island were ever rejected in the eighteenth century.
The roles played by colonial agents in London also varied according to
the type of colony that they represented. Agents were critical to the empire*s
legal communications. They supported (or deftly subverted) colonial
17 To be sure, considerable political and institutional diversity marked the Spanish empire,
particularly in the less settled peripheral and border areas.
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130 Richard J. Ross
statutes under review by the Privy Council, influenced Parliamentary legislation,
passed along and interpreted documents, and forwarded (or delayed
and undermined) colonial petitions and grievances. Assemblies in proprietary
and royal colonies struggled with governors imposed from outside
to make the agent their spokesman in London. Royal governors and
their Councils wrestled with assemblies over the appointment and funding
of agents and over control of communications to them. Royal governors
and assemblies sometimes maintained separate agents or obstructed
each other to the point where none could be appointed at all. Disputes
over agents became even more pronounced in proprietary colonies because
the people had no other reliable way to go ※over the head§ of the proprietor
and bring grievances before the Crown. More vigorously than royal
governors, proprietors opposed the selection of an agent they could not
control. In corporate colonies, in contrast, the agent did not become an
object of conflict. Governors were elected; hence constitutional tension
between prerogative (or proprietary) executives and popular legislatures was
lacking.
The type of colony that an agent represented and its changing internal
balance of power determined his London agenda, for agents favored the
views of those who selected, paid, and instructed them. An agent would
attempt to reconcile the perspectives of differing power centers or find
himself serving alongside competitors dispatched to discredit him. The
colonial agent, then, did not reliably play a single role 每 he was not necessarily
an ally of imperial administrators and royal governors, or a mouthpiece for
the Assembly, or a guide to and mediator among the divergent factions
of his colony, or the representative of a stable set of economic interests
or ideological commitments. He could play one or several of these roles,
his successor might play others, and the agents of neighboring colonies
might play still others. Imperial administrators knew that agents* objectives
shaped their management and coloring of information. But the differing,
changeable allegiances of the agents made them an unpredictable vehicle
for legal communications.
The ability of the English government to shape colonial law through
governors* instructions also varied by type of colony. The Board of Trade
used instructions to set forth its understanding of proper judicial organization,
legislative procedure, and executive prerogatives. It dispatched these
documents to newly appointed governors of royal colonies and updated
them from time to time. Unlike royal colonies, however, proprietary and
corporate colonies did not receive instructions as a matter of course. On
occasion the English government included proprietary and royal colonies
in circular instructions sent out to all American settlements. Sometimes
the Privy Council dictated instructions to proprietors for transmission to
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their governors. Overall, though, proprietary and corporate colonies did not
receive anything like the quantity and scope of instructions dispatched to
royal colonies.
The distinction among royal, proprietary, and chartered colonies only
begins to suggest the degree of variation in legal communications channels
running between London and America, for the labels obscure differences
among colonies in each group. Consider the two corporate colonies, Connecticut
and Rhode Island. Connecticut*s political culture disapproved of
appeals to the Privy Council and few occurred. Neighboring Rhode Island,
in contrast, favored appeals. As a corporate colony, Rhode Island was not
bound by Privy Council instructions to royal governors to prevent appeals in
cases involving less than, typically, £300. However, its legislation lowered
the minimum amount required in controversy to £150, which encouraged
its settlers to send more common law appeals to the Council than any other
jurisdiction.
Peculiar features of charters introduced further variability into Privy
Council review of legislation and appeals. Though the Pennsylvania charter
required submission of legislation to the Privy Council, it gave the colony
the unusually long period of five years in which to comply, which for a while
enabled the legislature to pass limited-term ordinances and then repeal them
before their disallowance. The charter also provided that a Pennsylvania
statute would be valid unless the Council rejected it within six months
of receipt (which made inertia and disorganization an ally of the colony).
Massachusetts*s 1691 charter also promised confirmation of statutes unless
the Privy Council disallowed them, in this case within three years rather
than six months. Both charters limited the Council*s ability to let submitted
ordinances ※lie by probationary§ without formal approval or rejection in
order to invite comment from interested parties. The Massachusetts charter
also allowed judicial appeals to the Council in personal actions (those not
touching on real estate) worth more than £300. Through the middle of
the eighteenth century, opponents of appeals read the charter strictly to
permit appeals only in personal actions. In the late 1740s, Massachusetts
Governor Shirley noted that colonial courts following this interpretation
created a deliberately scanty written record in order to frustrate appeals in
cases involving real estate.
The relatively standardized governing institutions of the core areas of
the Spanish empire highlight the multiplicity of types of colonies and
charter provisions found in British North America. The English empire
was required to work with agents of changing and uncertain allegiance, to
build circuitous legislative review procedures for corporate and proprietary
colonies, and to confront the inapplicability of some of its favored devices
for communicating about law 每 gubernatorial instructions and allowing
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132 Richard J. Ross
statutes to ※lie by probationary§ while inviting commentary 每 to certain
colonies. This unevenness helped preserve a measure of local control and
diversity by undermining the empire*s ability to exchange information,
provide guidance and models of ※proper§ legal behavior, and nudge the
colonial legal systems toward metropolitan norms.
Local Interpretive Leeway
It was no easy matter to determine what elements of English law 每 from
Parliamentary statutes, equity and admiralty to ecclesiastical, merchant,
and common law 每 actually applied in early America. Tribunals, interest
groups, and officials routinely disagreed. High levels of uncertainty and
local variability persisted in part because no metropolitan body authoritatively
declared which elements of English law bound the colonists. In
the Spanish empire, although all Castilian law automatically applied in the
New World, the Council of the Indies from the early seventeenth century
onward could specify the content of a supplementary ※law of the Indies§
particular to the colonies. (Of course, securing obedience to that law proved
challenging.) The Council also decided which papal bulls and church documents
could be promulgated in America. In the English empire, the Privy
Council*s review of legislation and judicial decisions provided a means for
announcing that colonists had misunderstood the dictates of metropolitan
law, but only in a particular instance and after the fact. No English imperial
institution played a role analogous to the Council of the Indies by deciding,
in advance, which elements of metropolitan law applied to the colonies. No
imperial institution resolved conflicts between legal provisions in tension or
determined that particular laws should be ignored because they were irrelevant
or harmful given American conditions. Settlers were left to argue over
these matters themselves. This interpretive leeway supported local control
and variability in the colonial legal systems.
Reliance on amateur judges and administrators lacking legal education
reinforced the colonies* interpretive freedom in ways that further compromised
metropolitan oversight. Even if well disposed toward the empire,
colonial lay officials often could not decode all the implications of imperial
legal documents written in a professional idiom. Lawyers trained by apprenticeship
and a handful of Inns of Courts matriculants occupied only a small
minority, of the main administrative and judicial offices in colonial America.
Large landowners, merchants, planters, and scions of elite families provided
the overwhelming majority of supreme, county, and probate court judges;
governor*s councilors; city mayors and selectmen; and justices of the peace.
By contrast, the Spanish empire used trained lawyers to staff major institutions
of administration and judicature in America. Letrados (Spaniards
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or creoles educated in civil and/or canon law in a university) made up the
corps of audiencia judges and Crown attorneys (fiscales) and supplied most
of the deputies to corregidores. They also served as legal advisors (asesores) to
governors, municipalities, local courts, and state-sanctioned monopolies.
Along with laymen, letrados acted as corregidores, alcaldes, and councilman in
town cabildos. They performed residencias and visitas and clustered around
the audiencia as advocates. Although laymen ran most of the ground-level
administrative and judicial systems, letrados heard appeals, guided lower
tribunals and officials, and made major policy decisions in the bureaucracy.
The power and prevalence of letrados at all levels of Spain*s extensive imperial
bureaucracy in the NewWorld only emphasize how small a role trained
lawyers played in governing the British North American colonies.18
What were the implications of the lack of trained lawyers for English
efforts to project metropolitan legal understandings in the colonies? It is not
clear that the multiplication of trained lawyers in American judicial and
administrative institutions would have facilitated better imperial supervision
of the colonial legal systems. Lawyers in the colonies sought less to
help the empire than to help themselves.With few patronage appointments
offered by London and the royal governors, lawyers turned to elective politics
to get ahead. Most allied themselves with popular, anti-prerogative
movements. Trained lawyers attended to the interests of the landowners,
merchants, and planters who employed them, advancing or redirecting and
undermining imperial policies as their clients* needs arose.We should note
that Spain*s American letrados could also prove less than dependable in the
pursuit of imperial goals. Even those employed in the extensive imperial
bureaucracy, reliant on the Crown for position and advancement, proved
adept at deflecting or ignoring Castilian laws and royal orders in the service
of personal or local interests.
From the perspective of a history of legal communications, the central
consequence of the English colonies* overwhelming use of laymen in the government
and judiciary may not have been a heightened propensity to disobey
metropolitan directives so much as a reduced ability to see the background,
context, and implications of the legal documents so critical to imperial
regulation.We have seen that England transmitted expectations and goals
to the colonies in a variety of forms, not least through legal documents. The
concepts on which the constitutional relationship between England and the
colonies was founded 每 for instance, the distinction between ※conquered§
18 The size and political influence of the colonial legal profession began to grow in the
second quarter of the eighteenth century and accelerated in the third quarter. Even so,
the vast majority of administrative and judicial posts remained in the hands of laymen
on the eve of the American Revolution.
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134 Richard J. Ross
and ※settled§ colonies 每 emerged through court opinions and Privy Council
rulings. Colonial charters set up the basic machinery of government; proclamations
and governor*s commissions added to it. Parliamentary statutes
supplemented by judicial decisions set forth trade policy. Counsel to the
Board of Trade and Privy Council advised them on legislative review and
judicial appeals and drafted the reports that formed the heart of Council
rulings. Even governors* instructions came full of legal terms of art.
Discrete provisions in legal documents presupposed a larger system of
jurisdictions and remedies, officers and powers, and modes of proof and
interpretive canons. The Navigation Acts, for example, proved difficult to
administer because they assumed that the reader understood the difference
between concurrent and exclusive jurisdiction, knew which tribunals in
England could accept appeals from America in customs cases, and was familiar
with the differing responsibilities of the courts of Admiralty, Exchequer,
and King*s Bench. Colonial officials, overwhelmingly laymen, had a shaky
grasp of the vocabulary, interpretive methods, and institutional and doctrinal
context presupposed by legal documents produced in England. Lawyers*
training in ※proper§ modes of reading and contextualization created conceptual
limits to the imagined meaning of a text. With less awareness of
such limits, lay officials exercised heightened interpretive freedom. Thus,
colonial lay officials might deflect imperial policies not only when they
deliberately tried to do so 每 a skill they developed to a high pitch and
that they shared with trained lawyers and Spanish American letrados 每 but
also inadvertently, by proceeding in good faith without fully understanding
what was asked of them. Disjunctions between the professional idiom
of imperial legal documents and the lay idiom of most colonial officials
thus blunted efforts to project metropolitan legal understandings into the
colonies.
Scribal and Oral Transmission, Brokers, and Social Networks
Legal communications relied heavily on scribal and oral transmission filtered
through social networks. Brokers of information enjoyed considerable
power to bury, redirect, or alter metropolitan understandings of law flowing
between London and the colonies. Thus, the English government could
not be sure that discussions, reviews, and dissemination of law would reach
colonial target audiences accurately or at all.
To illustrate, consider the behavior of the Privy Council, obviously a
critical institution for imperial oversight. Though decisive in the individual
case, the Council*s decisions on judicial appeals and colonial legislation had
an ad hoc quality that undermined their cumulative effect and limited
their ability to reshape colonial law by providing an accessible account
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of metropolitan expectations. Nor, in any case, did the Council give any
systematic attention to dissemination of its rulings. Orders were issued
verbally or in sketchy written form supplemented and explained orally. Few
were printed. Some circulated in manuscripts of uncertain distribution.
Most spread by word of mouth in distorted and incomplete retellings.
English government officials, let alone colonists, had trouble discovering
what the Council had resolved and even greater trouble learning why.
The haphazard dissemination of Council rulings provides an example of
two larger phenomena: (1) reliance on scribal and oral dissemination of law
and (2) the importance of written or verbal interpretations (or ※framings§)
that accompanied legal narratives and texts as they moved from place to
place. Parliamentary and colonial statutes apart, only a tiny fraction of the
laws and judicial and administrative decisions that governed public life
were available in print. Most legal information circulated through handwritten
manuscripts, whether traveling across the Atlantic (Privy Council
rulings, governors* instructions, customs service interpretations) or within a
colony (governor, Privy Council, and court decisions; responses to petitions;
directions for local officials). Unlike printed materials, manuscripts were
neither standardized nor generally available to the public. When the holder
of the manuscript circulated it, he had to decide whether to send it verbatim,
edit it, or combine it with other texts. He could add material that
explained, undermined, or reinterpreted the main document. At each link
in the circulatory chain, brokers of legal information could also add verbal
commentary that ※framed§ a manuscript (or printed document) with views
of its meaning.
A broker had to decide not only what to send but also to whom. He might
routinely transmit documents to recipients selected because of their office
(for instance, the secretary of a colonial assembly would routinely dispatch
session laws to county clerks). Alternatively, he might distribute an edited
and framed document only when politically or socially advantageous. He
would consider the consequences of providing a given audience accounts
of the Privy Council*s rulings, or portions of the governor*s instructions, or
recent interpretations of the customs regulations. In turn, recipients would
decide whether to circulate the document they received, to whom, and with
what inclusions, exclusions, and changes.
Political calculations and personal sympathies influenced not only the
dissemination but also the storage of legal information and governmental
records. Officeholders sometimes denied their political and social rivals
access to records. Given the incomplete separation of governmental and
personal roles, officials tended to mix state and private papers. On retirement,
they might take home public documents, compromising the institutional
memory available to their successors. The English administrator
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136 Richard J. Ross
most experienced in colonial affairs at the turn of the eighteenth century,
William Blathwayt, removed much of his vast correspondence with colonial
governors and deputy auditors after leaving office. Only slowly did officials
come to think of official papers as a possession of the government to be
housed in state repositories, rather than a form of private property. This
transformation was underway during the eighteenth century, but incomplete.
Throughout the colonial period, the preservation of legal knowledge,
like its transmission, remained highly personal, unreliable, and politicized
in British North America.
And not only there. Spanish and French America were only too familiar
with the untrustworthy storage of legal information, self-interested brokers,
and the haphazard dissemination of law through scribal or verbal chains of
transmission. In light of these common limitations and inconsistencies in
state administrative structures, social networks created by bonds of family,
friendship, loyalty, common origin, and interest played a critical role in
disseminating law.
Information moved readily between administrative and social pathways.
An interpretation of export regulations sent from the English Treasury to a
customs collector in New York passed through the empire*s administrative
system. But when the collector sent copies of the document to a lawyer who
represented him in land speculations, to his merchant cousin in Albany, to
a friend from church, and to an assembly representative sympathetic to the
prerogative party, dissemination instead began to follow social networks.
It is tempting to observe that administrative structures and social networks
fused at multiple points, but the observation would be misleading,
in that it implies that they were otherwise separate. In fact, structures and
networks were mutually constitutive. Early modern states expected and
required social elites to assume governmental positions, not least to draw
on those elites* formidable authority with neighbors, clients, and dependents.
Officeholders competed for the favor of patrons whose approval won
them desirable posts and promotions. Successful administrators discussed
policy choices with the social and economic leaders of the community and
cultivated their support. These interactions encouraged levels of compliance
that could seldom be bought or forced, given the limited financial and
military resources of early modern states.
The tight integration of administration and society encouraged officeholders
to communicate law through social networks. They needed to
describe local legal cultures to distant patrons and, conversely, explain
metropolitan legal expectations to community notables. Officeholders also
needed to inform allies about legal interpretations and disputes in order
to prevail in the endemic factional disputes that spread from society into
government (as a result of the weak separation of official role from social
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position). Additionally, local clergy, military officers, university scholars,
and nearby gentlemen expected to be apprised of legal developments. Their
social status made them the natural rulers of society no less than government
officials. Political effectiveness and even continuation in office thus
depended on dexterity in brokering information.
The centrality of scribal and verbal (as compared to print) media only
reinforced the critical importance of social networks in shaping the patterns
of legal transmission. The recipient of a manuscript either asked for it or
held a place on the owner*s distribution list. Dissemination of law through
personal discussions, and verbal framings of manuscripts and printed documents,
occurred in face-to-face interactions. Colonial governments promulgated
statutes and proclamations through announcements at court day and
fairs; and one could purchase manuscript copies of records, such as charters,
statutes, and judicial rulings. But aside from state commands and a limited
class of public records, colonists could not obtain legal information as of
right or by the payment of a fee. Most knowledge about law moved through
the possessor*s networks according to the dictates of social obligation and
political calculation.
Social networks transmitted far more than the formal materials of Anglo-
American law, such as Privy Council Orders, court decisions, and parsings
of customs regulations. They also transmitted the mores and dispositions
that make up a legal culture: for example, commitments to particular types
of dispute resolution, presuppositions about the nature and sources of justice
and good government, opinions about imperial superintendence, and
favored styles of interpreting legal materials. Schoolmasters and college
tutors taught those under their charge how natural law constrained the
state*s positive law. Recently arrived Inns of Court barristers told their
American business and political contacts what English statesmen thought
the Glorious Revolution settlement meant for the colonies. Assembly representatives
returning to their towns confided to their allies the compromises
and limitations of newly passed legislation. Merchants recounted their
London brokers* opinions about the Privy Council*s agenda for colonial governance.
Ministers advised their co-religionists about how to arrange their
affairs to avoid ungodly secular courts.
The importance of social networks to legal communications, broadly
construed, helped preserve local control and diversity in the colonial legal
systems. Metropolitan legal understandings could spread through colonial
social networks only after they were introduced in some fashion. The
English empire, compared to the Spanish, maintained fewer points of contact
from which diffusion could begin. Consider, first, the connections created
by the institutions of imperial governance. As we have seen, the Spanish
empire developed a multiplicity of alternative communications links that
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138 Richard J. Ross
penetrated deep into the colonial governing structure and society. England
maintained few points of contact outside the elites at the top of the legal
and political hierarchies and beyond the colonial capitals and port cities. It
lacked a robust inland bureaucracy.19
Metropolitan legal understandings could spread to colonial social networks
not only through imperial governing structures but also through
other institutions, such as universities and churches. Spanish colonists
rapidly built universities in the Americas. Six were founded in the first
fifty years of their empire and twenty-three by the middle of the eighteenth
century. Many of the Spanish American universities established chairs of
law and oversaw the study of Roman canon ius commune and of natural law
(also offered in the arts curriculum). During the sixteenth and seventeenth
centuries, the universities did not formally teach royal law. Their program
of ius commune and natural law served metropolitan purposes obliquely by
bringing a measure of unity to the legal culture of Spanish America and by
providing a counterweight to local diversity in lawmaking. By the early to
middle eighteenth century, universities began teaching royal law directly.
They added chairs in that subject under the encouragement of the Council
of the Indies. Knowledge of Roman, canon, natural, and royal law spread
beyond the universities* students to the lettered segment of society, particularly
those linked to the government bureaucracy and judiciary. By contrast,
none of the handful of colleges in the English colonies offered a directed
course of readings in law. Nor did they maintain chairs of law. Settlers
who desired to learn law in an educational institution (rather than through
apprenticeship) traveled to the Inns of Court in London. Compared to the
number of Spanish America colonists exposed to Roman, canon, natural,
and royal law in New World universities or through diffusion from those
educational centers, they were few in number.
Churches and clergy could also introduce metropolitan legal understandings
into colonial social networks. Unlike the pluralistic and frequently
contrarian British North American denominations, the Spanish American
church devoted itself to upholding the Crown*s political and legal authority.
Special papal dispensations gave the Spanish king more extensive supervisory
powers over the church in America than any monarch enjoyed over the
church in his European territories. Under the system of Patronato Real, the
Crown nominated archbishops, bishops, and abbots directly and other clergy
indirectly and controlled ecclesiastical revenues and governance. Catholic
clergy dependent on the Crown for their positions and funding taught principles
of law and constitutionalism through sermons, private instruction,
19 I owe the phrase ※inland bureaucracy§ to a conversation with Prof. Charlotte Crane.
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Legal Communications and Imperial Governance 139
and example. They ran schools and the universities. Clerics served as advisors
and advocates for Indians in secular legal and political affairs. Ecclesiastical
courts also protected ※wretched persons§ 每 widows, orphans, and the
poor 每 and exercised jurisdiction over marriage, inheritance, and sexual relations,
as well as tithes and usury among other matters. Bishops and canon
lawyers articulated legal principles as they fought for their jurisdictional
rights against viceroys, audiencias, and state officials.
The diverse denominations and sects of British North America lacked
many of the mechanisms that the Spanish American church used for tutoring
residents in principles of law and constitutionalism. They did not formally
instruct Indians in legal doctrines or run ecclesiastical courts. Yet, their
role should not be underestimated. Through preaching, catechizing, and
personal discussion, they formed ※the minds of the people to the knowledge
of both law and duty,§ as the ministerWilliam Smith put it. Sermons
might convey constitutional principles and jurisprudence. They spoke, for
instance, of the excellence of the ※balanced§ British constitution, the relationship
of natural and positive law, the proper character of the magistrate,
and the source and limits of colonial liberties within the empire. Churchsupported
mediation offered a site for clergy and laity to wrestle with
legal doctrine, including the relationship of English and colonial law. New
England Congregationalists, Quakers, Dutch Reformed congregants, and
German Pietists particularly encouraged co-religionists to settle disputes
under the auspices of the church rather than in the state*s courts. Mediation
addressed not only disputes about faith and sin but also quarrels about
commercial dealings, property rights, marital obligations, and the proper
sphere of officials* powers. Congregants worked through principles of secular
law as these were used to define ethical duties. The Bible, for example,
instructed believers not to covet thy neighbor*s property; but the state*s
law defined the boundaries of thy neighbor*s property and explained how
it could be regulated and transferred.
When it came to imperial views of law and constitutionalism, however,
the diverse denominations and sects in British North America proved at
best uncertain allies, and sometimes opponents. All preached from Romans
13 in favor of hierarchical authority and justly constituted government.
Aside from the Anglicans, however, their support of imperial policy was
selective, self-interested, and changeable. As such, they diverged strikingly
from the Spanish American church. The Catholic establishment suffered
its own conflicts 每 between priests and parishioners, between bishops and
parishes, between ecclesiastical courts and the Inquisition, and between
※secular§ priests in the dioceses and ※regular§ clergy in orders. But however
much dioceses and churchmen clashed on particular points, their rivalries
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140 Richard J. Ross
occurred within a theoretically integrated organization committed to the
support of the Crown*s government.20 A parish in Peru and another in the
valley of Mexico might disagree somewhat about the principles of justice
and government. But how much more would opinions about justice and
proper government differ between a Puritan gathered church and a Virginia
Anglican parish, between a Sephardic Jewish congregation and a Philadelphia
Quaker meetinghouse, between a German Pietist pastor and a Catholic
priest in Maryland or a Dutch Reformed minister and a Baptist itinerant
preacher? One need not claim that the Spanish American church aimed
at or achieved a single, cohesive body of religious and legal principles to
acknowledge that the variation among its constituent parishes, missions,
and priests was less than among the strikingly diverse churches and clergy
of British North America. The pluralistic theology, denominational structure,
and ethnic foundations of the British colonial churches made them
unreliable conduits for introducing metropolitan legal understandings into
colonial social networks. In contrast to the Spanish American church, they
stood outside the imperial apparatus, spreading inconsistent messages about
jurisprudence, constitutionalism, and the proper relationship of colonies to
the metropolis.
Considered together, the churches, universities, and royal bureaucracies
offered the Spanish empire multiple and widely dispersed points of contact
for introducing metropolitan legal understandings into colonial social networks.
Each neglectful and self-interested social network decided how to
reshape and explain what it chose to circulate. But the diversity of overlapping
transmission routes reduced the power of each network to bury
or alter beyond recovery the Crown*s messages and outlook. How much
less was this true in British North America. The churches and sects were
unreliable allies of the empire. The handful of colleges played a far smaller
role in disseminating law than their more numerous Spanish American
counterparts. The English imperial administrative system maintained few
points of contract outside the port cities and the elites who headed legal
and political hierarchies.
The relative scarcity of points of contact gave local notables and social
networks in British North America considerable power to influence the dissemination
of metropolitan legal understandings. A small group of imperial
appointees concentrated in colonial capitals and major ports (about twenty
officials in a royal colony, fewer in a corporate or proprietary colony) spread
and endorsed metropolitan legal understandings as a matter of duty. Most
20My emphasis here is on the political, social, and legal teachings of the Spanish American
church. Parishioners, of course, interpreted those teachings in diverse ways, as the studies
of indigenous peoples* ※syncretic§ religion have emphasized.
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brokers of legal information did not. Assembly representatives, justices of
the peace and sheriffs, vestries, merchants, clergy, lawyers of various degrees
of training and professionalism, gentlemen who dominated their counties
每 these brokers, motivated by their interests and ideological commitments,
screened or transformed metropolitan legal understandings while circulating
them through social networks. If local brokers and networks were disinclined
to cooperate, the English empire encountered real practical difficulty
in projecting imperial versions of law. More often than not, metropolitan
legal understandings reached colonists in fractured and competing forms.
They did not enjoy the widespread presence and the perceived solidity
and certainty that legitimates unfamiliar or unpalatable law. The empire*s
dependence on self-interested and unreliable colonial brokers and social
networks helped preserve a measure of local control and diversity in the
colonial legal systems.
CONCLUSION: AN ※INDIVIDUALIZING§ COMPARISON
My purpose in comparing English and Spanish America is not to assess their
relative degree of obedience to royal directives or the relative degree of local
control and diversity on the ground. To emphasize the many ways in which
Spain created more varied and extensive means for legal communications
with its American empire than England should not, in other words, be taken
to mean that New Spain and Peru were more obedient to metropolitan
directives than the British North American colonies. Indeed, historians
of colonial Spanish America have long pondered why an empire with so
elaborate a governing bureaucracy encountered such difficulty in getting
NewWorld officeholders and local elites to follow Crown policies.
Instead, I have used Spanish America as a contrast case. It sets up what
Charles Tilly has called an ※individualizing comparison,§ where one case
brings out the distinctive and peculiar elements of the other. Contrasting
the two NewWorld empires highlights important features of legal communications
in British North America whose existence or significance would
not be apparent if examined in isolation.
This approach can shed light on early American politics and society as
well as law. Historians have long wondered to what extent, and why, the
colonies preserved a measure of local control and diversity despite oversight
by the English empire and pressures to assimilate. One strand of scholarship
has explored the foundations for resistance to overreaching prerogative
and unwelcome imperial programs. Its themes are familiar. The growing
authority of assemblies constrained the influence of royal governors and
imperial administrators short on patronage and coercive power. Colonial
notables (not metropolitan officials) staffed almost all administrative and
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142 Richard J. Ross
judicial bodies, which could not function without active participation from
local communities. Colonists valorized English freedoms and customary
and consensual notions of authority while cultivating intense suspicions of
prerogative (even when they were benefiting from it). The English empire*s
political divisions and modest fiscal, military, and administrative capacities
inclined it to negotiate with colonial elites, rather than vigorously confront
resistance.
Another strand of scholarship depicts pressures toward integration into
the English empire. The first two generations of the imperial school charted
the growth of the empire*s administrative structures, and their successors
explored the social and political developments that this apparatus inspired,
from the elaboration of an Anglo-American patronage system to the mobilization
of interest groups. Students of anglicization have noted the growing
resemblance of the colonies* elite culture, legal and military structures, and
consumption patterns to those of the metropolis, and their formation of a
deeper, more self-conscious English identity. Recent studies of early American
communications emphasize how improvements in the diffusion of information
helped integrate the English Atlantic politically and culturally.
Both strands of scholarship capture essential features of colonial life. Historians
have labored to bring the two together and explain their interaction.
This study of the double nature of Anglo-American legal communications
introduces another way to bridge them. At first glance, one sees the importance
of legal communications in the administrative, political, and judicial
structures of the empire. Imperial school historians a century ago began the
exploration of this theme. Comparison with Spanish America provides a new
perspective and reveals the particularities, omissions, and limitations that
made Anglo-American communications practices anything but a reliable
agent of imperial centralization. The Spanish American experience brings
into sharper focus the English empire*s preference for regulating governing
structures, rather than assuring individual justice, and the colonists* ability
to withhold legal information for strategic advantage. It underscores
the trans-Atlantic (rather than intracontinental) orientation of the English
empire*s variegated (rather than uniform) legal communications channels
and the relative scarcity of points for inserting metropolitan legal understandings
in colonial social networks. And it suggests the implications of
the colonists* reliance on lay (rather than legally trained) judges and administrators
and the English empire*s relative disinterest in the internal legal
affairs of Native Americans. These are different types of observations. Some
are about social and political strategies; others about institutional design,
staffing, and priorities; and still others about the cumulative patterns of
information exchange. Collectively, however, they reinforce one another.
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Legal Communications and Imperial Governance 143
Where the imperial school and its successors emphasized the centrality
of legal communications in building an administrative apparatus and
tying together the English empire politically and intellectually, the Spanish
comparison brings out how and why these developments were incomplete
and uneven. In particular, the study of communications reveals how
decisively local notables and social networks controlled the dissemination
of legal knowledge and commands. Scholars have long observed that the
large degree of local control of legal institutions significantly influenced
the shape of colonial politics and the Revolutionary movement. Yet, as we
have seen, local notables exercised substantial control over the means of
communication as well as the means of administration. They influenced which
audiences would know what about imperial directives and about the legal
heritage that supposedly united colonies and metropolis. They shaped the
meaning of the shared heritage and of imperial directives in the process
of disseminating them. Understanding the dynamics of Anglo-American
legal communications (as well as legal administration) helps explain the
persistence of a significant measure of local control and diversity in the
colonial legal systems amid pressures toward integration into the English
empire in the eighteenth century.
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5
regionalism in early american law
david thomas konig
Early Americans created regionally particular legal systems. Two centuries
of nationhood have since brought a great measure of uniformity in certain
areas of American law 每 the adoption of federal rules of procedure, the
growth of a federal judiciary, a uniform commercial code, and a national
system of legal education are just a few. Yet in certain respects American law
remains regionally specific. The nation*s ninety-four federal district courts,
for example, are grouped into regional circuits whose decisions occasionally
conflict and are not resolved. Perhaps in our own time regional distinctiveness
is stronger in American culture and political discourse than in actual
legal reality. Nevertheless, both its factual existence and its cultural potency
are clear.
American regionalism has its roots in early America. In the case of law, the
particular goals and variant experiences of unrelated colonization ventures
led to the reanimation and recombination of English legal practices in
different ways in the new environments. Colonists emphasized some English
practices while rejecting others, resulting ultimately in the emergence of
three new and distinct regional configurations 每 the Chesapeake and its
Southern neighbors, New England, and the Middle Colonies.
The peoples of early America were 每 as those of modern America remain 每
as various as their land, and the regionally diverse legal systems they created
gave meaning and order to their experiences. Their legal regionalism
originated in a long tradition of diverse English practices and in the contingent
exigencies of the unique historical ※moments§ of social change and
legal crisis in which colonization efforts took place. These moments would
produce the three distinct regions of legal culture on which we focus in this
chapter. We examine and explain the creation and entrenchment of these
plural legal orders not through an exhaustive catalog of their legal differences,
but through an interpretive inquiry into particular areas of the law
that demonstrate how the theory and reality of regionalism first created 每
and now continues to animate 每 law in America.
144
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Regionalism in Early American Law 145
The first two great cultural hearths of American law 每 the Chesapeake
and New England 每 emerged at a critical moment in English history when a
※vexed and troubled§ people turned to the institutions of law to reconstitute
a body politic collapsing in disarray. Law at this moment stood as the
bulwark both of identity and, indeed, survival. To those English who first
settled North America, in particular, law would distinguish them from the
peoples they encountered; it was a distinctive mark of the superiority of
their free and Protestant civilization. They turned to it with enthusiasm
as an instrument to settle North America 每 that is, to claim dominion
and control over the land and the peoples they encountered there, whether
※lawless§ Indians, ※heathen§ Africans, or ※Popish§ Roman Catholic colonial
rivals. The law provided different models for national recovery, and the two
colonization ventures that began England*s overseas empire 每 Virginia and
Massachusetts Bay 每 took skillful advantage of the opportunities it offered;
they self-consciously departed in many particulars from the law of the
central courts at Westminster in their efforts to use law as an instrument
to define their rights and secure their interests according to their particular
goals.
This process had proceeded for two generations before war and political
and economic revolution produced another, third, colonial moment 每 the
creation and expansion of a seaborne commercial empire sustained in part
by massive migration from diverse European origins into the new colonial
ventures of the mid-Atlantic. There, English law had to accommodate the
vestiges of prior colonial efforts, as well as a burgeoning population who
accepted the authority of that law only with reluctance and who often
greeted it with defiance.
Once underway in the seventeenth century, the process of regional differentiation
continued apace in the next, shaped not only by the contingencies
of the historical moments that had launched them but also by succeeding
self-definitions 每 as settler societies developing in a hostile environment,
as colonists joining together in collective separation from England, and
finally as members of politically and culturally distinct entities in a federal
republic attempting to balance the sovereignties of state and union.
I. THE DISCOVERY OF REGIONALISM IN EARLY
AMERICAN LAW
Anyone traveling in Britain*s North American colonies would have been
struck by the diversity of its peoples, who distinguished themselves from
each other in so many ways, whether by religion or race or by place of birth or
of residence. Those same colonial populations, however, gave comparatively
little thought to what distinguished their own governmental institutions
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146 David Thomas Konig
from those of other mainland colonies. This was especially true of their law
courts. The main business of courts was the protection of life and property,
which rarely brought them into contact with courts in other colonies. Trade
took people beyond the borders of their own colony, but most commonly
brought them into contact not with fellow North Americans but with
merchants doing business out of London or Glasgow, or perhaps the West
Indies. The broad expanses of ocean seemed to stand as the real borders of
legal cultures. When Parliament in the mid-eighteenth century began to
impose more uniform legal rules in North America, therefore, Americans
saw the contest as between two political and legal cultures 每 one in Britain
and one spread along the coastline of North America. Virginia*s conflict was
with Britain, not with Massachusetts.
In mobilizing resistance to Parliament in the 1770s, the colonies were
declaring their opposition to a new eighteenth-century ※imperial constitution§
that had altered long-established tradition by asserting a full legal
sovereignty that required their complete compliance with English law. The
colonists adhered instead to an earlier concept of constitution based on custom
and express contractual agreement 每 that is, through court practice and
colonial statute 每 and so had adapted the law to their needs, in the process
gradually drifting away from the specifics and technicalities of the law as
known and practiced in the central courts atWestminster Hall. Impelled by
the needs of political contest, this colonial divergence from the legal orthodoxies
of Westminster required legitimation by specific demonstration of
consent and historical proof of custom.
To meet the need, Thomas Jefferson and others 每 including, not least,
generations of legal historians 每 provided an account of American legal
development that imposed a misleading unsophisticated uniformity on the
regionally varied legal landscape of early America. To justify colonial departures
from the orthodoxies ofWestminster, Jefferson insisted that American
legal development since the beginnings of the colonies had been a process
of simplification by artlessly inexpert amateurs 每 a sort of legal regression
to an ancient mean. According to this story 每 which has been embellished
through time 每 the colonists devised a simpler, purer law better suited to
the common needs of British North America. Theirs was a generic system of
law lacking the complicated forms and actions of English secular and ecclesiastical
law. Such a law was not only the product of nature; it was their
right by nature. ※Our ancestors . . . who migrated hither,§ wrote Jefferson in
1774, ※were farmers, not lawyers.§ As both a farmer and a lawyer, he knew
better, but such a national origins myth suited the strategy of denying the
legitimacy of a metropolitan legal regime over Britain*s North American
provinces by elevating a more authentic expression of provincial culture in
its stead. Jefferson, a close student of England*s legal history, invoked the
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Regionalism in Early American Law 147
purity of a mythic Saxon past to extol a purer, simpler American system of
law. Excusing the general American colonial practice of granting fee-simple
tenures to land as ※an error in the nature of our landholdings, which crept
in at a very early period of our settlement,§ for example, he contrasted the
allodial tenures of his Saxon ancestors to the feudal and ※fictitious principle
that all lands belong originally to the king.§ In so arguing, he laid a basis for
perpetuating the idea that the legally inexpert ※farmers, not lawyers,§ who
colonized North America had been incapable of duplicating the technical
niceties and fictions of English law and that a generalized rustic simplification
guided early American law and reduced it to its common elements.1
Out of that process emerged a shared foundation of truly American law, rid
of its English corruptions and based on the universal ※laws of nature & of
nature*s god.§2
Jefferson*s invocation of the first settlers as ※farmers, not lawyers,§ artlessly
natural simplifiers who improvised on a common fund of a libertyloving
tradition, served the immediate needs of political mobilization and
emphasized a bright line between legal cultures separated by an ocean. But
it intentionally neglected the English antecedents of a continuing American
legal tradition of instrumentally crafted regional variation. Legal regionalism
among the colonies had existed as a reality long before it became
a consciously articulated ideal when Americans reexamined their colonial
past in search of a workable foundation for a new legal order in the 1780s.
The politics of unification forced James Madison as ※Publius§ to acknowledge
the ※different laws and circumstances§ within his ※extended republic
of the United States§ and led his co-author John Jay to address the danger
that ※three or four confederacies§ might form among the different regions.
Turning regionalism into an asset, however, ※Publius§ argued that regionalism
within a federal union was a virtue that would prevent monolithic
national consolidation.3 Not only did this new concept prove more useful
for the political needs of the new republic but it was also, in fact, far more
accurate as history than Jefferson*s artful Revolutionary polemic suggested.
Americans discovered their tradition of legal regionalism as soon as
the question of imperial constitutional structure was replaced by the new
1 Thomas Jefferson, ※Draft of Instructions to the Virginia Delegates in the Continental
Congress§ [July 1774], published as ※A Summary View of the Rights of British America,§
The Papers of Thomas Jefferson, ed. Julian P. Boyd, et al. (Princeton, 1950), I: 133. When
printed as ※A Summary View,§ ※farmers§ had been changed to ※laborers.§
2 This is the form used in ※Jefferson*s &original Rough draught* of the Declaration of
Independence§; Ibid., 423.
3 Madison, The Federalist, No. 51 (※extended republic§), 53 (※different laws§), in The
Federalist, ed. Jacob E. Cooke (Wesleyan, CT, 1961), 353, 363; Jay discussed regional
confederacies at Ibid., No. 5, 25.
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148 David Thomas Konig
problem of defining legal relationships between and among the newly independent
states. Constitutional relations are, fundamentally, matters of competing
sovereignties: as the sovereignty of King-in-Parliament was about
to end in 1781 Jefferson revealed his own ambivalent identity, simultaneously
※[a]s an American, as a Virginian.§4 Many times he had used the term
※country§ to describe both Virginia and the United States, but what seemed
to augur a consolidation of law under the federal government drove him
and others to emphasize the singularity of their own states* laws and legal
systems. ※Before the Revolution,§ he wrote to his future attorney-general,
Edmund Randolph, ※the nation of Virginia had, by the organs they then
thought proper to constitute, established a system of laws. . . . § By contrast,
he continued, ※[b]efore the Revolution there existed no such nation as the
United States,§ and thus no common legal system.5
Replacing the simplified natural uniformity of the first settlements with
the more highly developed particularism of American state law, Jefferson
joined a chorus of politicians and jurisprudents who acknowledged the distinctiveness
每 indeed, the conflicts 每 inherent in the many state systems of
law framed after independence and who opposed any effort to assert a federal
common law. Instead, it was axiomatic that ※law§ meant state law, especially
in the area of private law. When Jesse Root of Connecticut wrote his
introduction to the first law reports published in the United States, it went
without saying that ※a system of jurisprudence congenial to the spirit and
principles of our own government§ meant that of Connecticut. Revolutionary
republicanism had left Americans suspicious of political motivations,
especially those that threatened now to consolidate their communities and
submerge their rights and identities within a national (and formerly, imperial)
monolith. As Americans of different regions resisted the superimposing
of a new national identity that threatened to efface local legal and political
structures, they took refuge in a constitutional counter-narrative that
sharply accentuated regional diversity.
Maintaining the union, paradoxically, would require the formal recognition
of regional and local variation. ※Nationalism in America,§ the historian
Peter S. Onuf explains, ※developed in tandem with opposition to centralized
state power; sectionalism was its logical corollary.§ Only after independence
had been secured did the difficulties of political union confront the aggregated
states with the reality of the variations among their systems of law.
Only then did the fact of their regional dissonance seize their attention and
4 Jefferson to James Monroe, October 5, 1781, Papers, VI: 127.
5 Jefferson to Edmund Randolph, August 18, 1799, in The Life and Selected Writings of
Thomas Jefferson, ed. Adrienne Koch andWilliam Peden ([1944] New York, 1993), 504每
05.
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Regionalism in Early American Law 149
gain pride of place as defining American identity.With the successful ouster
of the imperial power against which all the colonies could unite in common
cause and common identity, Ayers and Onuf point out, the ※awareness of
other regions in a competitive political context§ finally led Americans to
acknowledge 每 indeed, to celebrate 每 the enduring regional traditions of
the colonial experience.
II. ENGLISH SOURCES OF REGIONAL LEGAL VARIATION
Early American legal regionalism reflected that of the English past, but the
impact of that past was itself contingent and dynamic, and its product 每 a
federal republic of constitutionally defined sovereignties 每 went well beyond
English antecedents. The regional particularities of colonial legal practice
did not reflect a direct, wholesale transplantation of English regional cultures,
which were themselves too varied for easy replication even without
the powerful forces of the colonization experience. Rather, it was the concept
and practice of legal particularism, rooted in a history of English localism
and given greater ,force by the peculiar exigencies of national crisis in the
seventeenth century, which produced the different regional legal cultures of
North America. English legal settlement of North America began at a particular
moment in English history, a defining period of revolutionary change
and deep crisis that evoked a range of desperate solutions. These responses,
for all their impact at home, would have a much greater impact in the New
World, where traditional institutions would have less of a restraining power.
Isolated from each other and settled by dissimilar groups pursuing different
goals, the various colonies of North America accelerated the process of
legal change and diversification going on in England. The basic contours
of English law and the self-conscious elevation of its importance, therefore,
persisted and survived transplantation, leaving ※an important paradigmatic
legacy§ that bore the exaggerated imprint of the particular changes overtaking
England in the period before and during colonization, and of the
forces introduced by the experience of colonization and settlement. Leaving
an England in crisis in the first half of the seventeenth century, the settlers
of North America brought with them a near-obsessive concern with using
the law to achieve security of property and reestablish social order. Despite
the changes that would occur in the eighteenth century, transforming the
nature of colonial societies and bringing to them an overlay of a common
transatlantic British culture, their founding moment left them with an
indelible legacy.
The legal landscape that the first settlers left behind was itself variegated,
the product of Britain*s own diversity of geography, society, religion,
and political organization. Though overwhelmingly rural and agrarian, the
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150 David Thomas Konig
British Isles encompassed different climatic zones and topographies that
shaped the economic and political organization of its peoples, whose vastly
different spoken dialects reflected their diverse social forms as well. Soil
might be chalk, clay, or fen; communities might cultivate wheat and rye or
barley and oats, or they might pasture livestock. At the onset of colonization,
England alone (from which the vast majority of the earliest emigrants
came) could count hundreds of boroughs and cities, 750 market towns, a
capital town for each of its 40 counties, and 9,000 rural parishes containing
numberless villages and manors. No one form could be called ※typical§ of
English society, even within a county or region. Many manors followed
an open-field form of agriculture, with holdings communally managed;
in other communities people farmed their plots separately, according to a
closed-field system. Even within those two basic forms, which were not confined
to any particular area, great regional variation led to sharply differing
local practices and customs. Moreover, the uneven effects of commercial
change overtaking the realm were transforming its villages, towns, and
cities. While some thrived, others withered; while some had to cope with
the effects of prosperity and growth, others found themselves in deep crisis.
The protection of life and property, the two main goals of the law, thus
took many different forms and made early modern England a patchwork of
regional and even subregional legal diversity. Laws of descent varied by and
within region, for example, deriving from custom as well as from common
law. Although feudal tenures were the norm for the gentry, many exceptions
existed. Land held by copyhold tenants, for example, might descend
partibly according to manorial practice, rather than according to the rule of
primogeniture, by which real property descended to the eldest male. Many
legal backwaters were never affected by mainstreams of legal development;
in some regions, as a result, the old Saxon principle of partible inheritance
through gavelkind governed. In others, the peculiar circumstances of timing
determined the shape and extent of legal practices. English boroughs
obtained their charters at different times and under different circumstances
from different monarchs, giving to each of them a different range of special
privileges and varying degrees of autonomy that produced different local
rules.
The effect of such variety was multiplied by the functional variations and
political rivalries within the English legal system and the uneven force of the
common law and its courts throughout the realm. England*s common law 每
the law as applied in the central courts at Westminster 每 was only one of
many systems operating in the lives of the peoples of early modern England,
and it was not the only source of legal remedies. English suitors had before
them a variety of options when they sought the remedies of the law, and
they might frame the rights they claimed and the remedies they sought in
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Regionalism in Early American Law 151
different ways in order to choose among different, even competing, forums.
The law courts derived their revenues from fees collected from litigants, and
two of England*s high courts of law at Westminster 每 King*s Bench and
Common Pleas 每 vied with one another for business. If it is too much to label
England*s legal system a free market in law, it remains true that courts competed
with one another and provided options to forum-shopping litigants.
Although we speak of a ※common law,§ the term misleads if it implies a
uniform national law. In the first half of the seventeenth century Sir Edward
Coke could list more than 100 different courts in the realm, including
merchants* courts, ecclesiastical courts, and manorial courts, as well as courts
that served specific locations, such as the Courts of the Cinque Ports and the
Court of the County Palatine of Durham. Writing on the eve of American
independence, Sir William Blackstone praised the ※prodigious variety of
courts§ created in England. ※The policy of our ancient constitution, as
regulated and established by the great Alfred,§ he wrote, ※was to bring
justice home to every man*s door, by constituting as many courts as there
are manors and townships in the kingdom. . . . §6
The common law thus acknowledged local variation, and the reach of
the central common law courts fromWestminster varied according to local
forces and practices. The common law, moreover, was not the only law
available and had not fully supplanted the ancient Anglo-Saxon courts of the
shire and the hundred. It coexisted, too, with non-common law courts such
as civil (Roman) law courts that offered specialized justice for particular
issues ranging from admiralty to marriage and the probate of personal
property. Henry VIII, who viewed the common law courts and their lawyers
with some suspicion, had sought to check their accumulating authority by
encouraging the rival system of Roman civil law used in these numerous
specialty courts. Henry also made great use of his Court of Star Chamber,
where his Privy Councilors met and addressed matters affecting the security
of the state or involving powerful magnates beyond the grasp of ordinary
common law courts. Though its substantive law was that of the common law
and common lawyers participated in its proceedings, its procedures were not
bound by it. Such a court 每 known as a ※conciliar§ court because composed
of a council 每 provided enormous advantages in furthering the interest of the
state: the attorney-general brought prosecutions by information (not grand
jury presentment), and no trial jury took part. Punishments also ignored
the limits of the common law, and the court might order the severing of
ears or the slitting of noses.
6 Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England, Concerning the
Jurisdiction of Courts ([1641] London, 1797). SirWilliam Blackstone, Commentaries on the
Laws of England, ([1765每69], reprint, Chicago, 1979), 3: 24, 30.
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152 David Thomas Konig
Star Chamber procedures reflected the impulse to escape the rigidity of
the common law, and such departures 每 like those that would take place
in North America 每 reveal less an inexpert simplification than a series of
conscious choices to adapt legal institutions to particular and pressing needs
by recombining forms and principles from preexisting courts. With good
reason, then, Joseph H. Smith*s observation that ※English law has always
made its new quilts from old rags§ applies equally to the English colonists
of North America. Early American legal innovation and regional variation
must be seen as continuing an English legal tradition, one with which
colonists were especially familiar given the specific timing of England*s
colonization project. It was no historical accident that expansion overseas
coincided with an outburst of legal creativity and state-building in England:
the three were indispensable to each other. In creating a more powerful
state and effecting a veritable revolution in government, English monarchs
created legal institutions adapted to their needs. Henry VII created the Star
Chamber and established conciliar rule inWales and the northern marches.
His son Henry VIII continued the process by creating courts for wardships,
augmentations, and for the better governance of the church, whereas his
granddaughter Elizabeth established the Court of High Commission and
the Court of Exchequer Chamber. Notably, the bench at Exchequer Chamber
was drawn from other courts; sitting together, they unavoidably influenced
each other.
It is of great importance in generating a useable and accurate model
for the development of early American law, and especially its regionally
particular aspects, that this dynamic and contested English background be
understood. The rise of equity 每 the body of procedures and rules applied
in the court of chancery 每 reveals a process of great interpretive value in
comprehending the directions of early American legal growth and change.
Guided by principles of fairness to temper the rigidity or limitations of the
common law, chancery had steadily expanded its role as a rival to the common
law courts. ※By Tudor times,§ writes John Baker, ※it was a trite saying
that Chancery was not a court of law but of conscience.§ Indeed, chancellors
were said to act ※not to destroy the law but to fulfill it,§ embodying the
monarch*s obligation to right wrongs for which no common law remedy
existed. They did so by providing simple alternatives to the common law*s
slow and complicated mesne process, its strict rules of pleading and evidence,
or its lack of appropriate remedies. Chancery had a large staff, and
in responding to grievances unmet by the common law it allowed petitioners
to initiate an action by an informal ※bill§ rather than an original
writ, and with a subpoena that commanded appearance, enforced if necessary
by an attachment of property that might be forfeited. Chancery made
itself available without regard to the formal designation of fixed terms, even
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Regionalism in Early American Law 153
conducting its activities in the home of the chancellor or bringing justice
to the provinces by delegating to rural gentry the authority to try causes on
commission outside of London. It allowed pleadings in English and offered
relief in the form of direct in personam orders, such as compelling the production
of a deed or enforcing an oral contract. Out of Chancery grew another
court, the Court of Requests, originally established to provide justice for
the poor and serving as a sort of small claims court. Its subsequent use
by substantial parties who exploited its procedural simplicity should not
obscure its origins nor the template of legal development that it and other
courts would provide for English subjects beyond the seas.
Not all English suitors appreciated Chancery, and like many other courts
and legal practices it was the target of legal reformers, especially Puritans
and radicals, who saw it as an agent of prerogative power and an obstacle
to further reformation. Chancery, for example, was so slow that one critic
in the 1650s estimated that causes there averaged twenty-three years to
complete. John Selden called equity ※a roguish thing,§ an arbitrary system
that followed the ※uncertain measure§ of the chancellor*s personal sense of
justice, ※as if they should make the standard for the measure we call a &foot*
a Chancellor*s foot.§ So, too, the ecclesiastical Court of High Commission,
created in the sixteenth century to punish religious heterodoxy, was not
bound by common law rules and provoked loud opposition when the Stuarts
vastly expanded its jurisdiction to persecute Puritans.
But the common law, though it had many champions, also had its critics.
It, too, was used to punish religious nonconformists. In civil matters the
central courts of common law atWestminster could frustrate justice. Often
painfully slow, the common law, with its mystification, technicality, and
great expense, provoked widespread calls for its wholesale overhaul and simplification.
The turn to the law accentuated the need ※to bring justice home
to every man*s door§ with less technical and less expensive pleading, and led
to calls for compiling laws into ※the bigness of a pocket book.§ Reformers
assailed pleadings in Law French 每 the archaic Norman language brought
with the Conquest 每 no less than the transcription of lengthy technical proceedings
in an ornate ※court hand,§ a service for which litigants paid by the
number of pages copied. A diverse group of reformers, including some of
the kingdom*s most learned barristers and jurists, therefore called for an end
to these relics of the oppressive ※Norman yoke.§ They would achieve some
success, both temporary and permanent, during the Puritan Protectorate.
Indeed, it was Puritanism that provided the principal energy and commitment
behind law reform, and it would be in Puritan colonies that the
impulse to purify and rationalize law would see its greatest achievements.
Law, as a means by which people and communities negotiate and order
their particular realities, therefore reflected the variety and dynamism of
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154 David Thomas Konig
early modern England. It served too many masters to allow any particular
attempt to impose conformity to succeed 每 if, indeed, any attempt
had been made. In truth, the Tudor monarchy had only limited interest in
achieving legal uniformity outside its needs for dynastic security, which in
turn rested on fiscal strength and political stability. In consolidating power
and building the foundations for the modern nation-state, the Tudors had
acknowledged the limits of their own power in an age of fierce local attachments
and unsatisfied baronial ambition, poor administrative mechanisms,
and a limited treasury. They willingly delegated not only de facto power
but de jure legal authority to local powers.
The conciliar model that served so well through Star Chamber had a
particular legacy of utility in England*s marchland regions in the north and
inWales, where marcher lords applied equitable relief in private matters as
well as a mixture of common law and Star Chamber procedures to punish
their own rivals and suppress enemies of the state. Delegating this power
came with a cost: local wardens and marcher lords controlled their lands
with more autonomy than a monarch would tolerate closer to home, but
the discretion of regional elites was a bearable cost, and it served to insulate
the particularities of regional law from any attempt to make it adhere to a
common form, as long as order was achieved.
Though Parliament would reject this model in the eighteenth century,
priorities in preceding centuries had dictated that royal (and professional)
judges concentrate their energies on matters of national importance and that
local governance be conducted by local men capable of trustworthy control,
who in turn were forced to rely on the participation of local residents.
Hundreds of justices of the peace, officials who have been aptly described
as ※men of all work§ in the business of England*s legal system, brought
※justice home to every man*s door.§ Despite recurring efforts by the Privy
Council to supervise and control them, and despite the requirement that
their appointments be renewed annually, their position in the community
and the vast range of obligations heaped on them (by ※stacks of statutes,§
groaned William Lambarde in his description of the office) allowed them
to exercise enormous informal power. An amateur and a volunteer, the
justice of the peace in Norma Landau*s words ※was both instrument of
divine justice and defender of the state.§ His ※commission of the peace§
embraced administrative, civil, criminal, and religious matters: justices,
wrote Lambarde, ※exercise not the judgements of Men onlie, but of God
himselfe.§7
Despite the power of the sword and the authority of the Bible behind him,
however, a justice derived only part of his true authority (as distinct from
7William Lambarde, Eirenarcha: or of the Office of the Justice of Peace (London, 1581), 57每8,
cited by Norma Landau, The Justices of the Peace, 1679每1760 (Berkeley, 1984), 335.
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Regionalism in Early American Law 155
power) from his commission. The legitimacy of his office rested as much on
his standing in the community and in his recognition of norms and standards
accepted by those on whom the law operated and whose acquiescence in the
system was vital. Blackstone conceded that the legitimacy of the common
law ※rests entirely upon general usage and custom.§ Though the local justice
himself was ※the depositary of the laws,§ his stature rested on more than his
study of the law, for ※the only method of proving, that this or that maxim
is a rule of the common law, is by shewing that it hath been always the
custom to observe it.§ His knowledge ※of the existence of such a custom as
shall form a part of the common law§ legitimized his decisions, and it was
precisely because of the force of custom that precedent formed the base of
the common law. Justices of the peace embodied the ※local knowledge§ that
only a resident and an amateur guided by such sensitivities would honor.
Blackstone was using this legacy to defend the authority of the common law
and its judges against challenges of arbitrary discretion, but the process by
which he described the origin of customs for England was, ironically, easily
applicable to American departures in a new environment: ※what before was
uncertain, and perhaps indifferent, is now become a permanent rule. . . . §8 每
a maxim that would, much to Blackstone*s indignation, legitimize variant
forms of custom-based provincial law in America. As Keith Wrightson
reminds us, the ※wide variation of practice and jurisdiction§ in local courts
contradicts any conclusions about uniformity that we might draw from the
prescriptive literature of legal treatises and manuals. The legitimacy and
utility of ※local knowledge§ in resolving disputes, defining the limits of
acceptable behavior, and protecting property, therefore, caution us not to
impose any grand theory of legal thought and behavior in early modern
England or early America. Rather, the law they applied and the practices
they followed thus bore a deep local imprint.
The imprint of local mores received still greater emphasis through the
broad participation of ordinary individuals in the durable ancient institution
of juries and jury-like bodies. The first settlers were not legal illiterates:
as ※farmers§ they possessed considerable knowledge of the ※practick part
of the law§ that defined meum et tuum 每 what was ※mine and thine.§ As
legally aware tenants and lay manorial officials they routinely employed
law in the life of their communities. English agrarian society was organized
around membership in a community, and that community was ruled by
law. It depended on law to organize the property rights that defined not
only an individual*s material survival but also his (and secondarily, her)
legal status. The seasonal rhythms of agrarian life demanded adherence to
informal rules and formal bylaws created by the farmers who had to enforce
land use practices, standards of neighborliness, and the descent of property
8 Blackstone, Commentaries, 1: 68每9.
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156 David Thomas Konig
between generations. English local governance depended on a small army
of lay officials and personnel to staff its courts and execute the commands
and protections of the law. It needed viewers of fences and roads, wardens to
report nuisance violations of many sorts, and reeves and constables to impose
order. Churchwardens bore the responsibility to watch and censor moral
offenses, an area into which community intervention became increasingly
important with the rise of Puritanism.
Manorial bylaws conferred the legitimacy of collective agreement, but so,
too, did the actual enforcement of rules and the resolution of conflict succeed
best when decisions and orders were made by groups acting collectively.
To mobilize this authority, the English legal system constituted a wide
variety of institutionalized community norms. Most prominent of these
was the jury, a body of laymen assembled to assist the court on factual
questions. The use of lay groups of residents familiar with local matters
reached far back into pre-Conquest England, and their durability attested
to the importance of local norms and a community of awareness. Jurors
were not judges; their role was to assist the court in determining matters of
fact, and courts depended on their knowledge of the parties and witnesses
to assess credibility and to consider reputation and the general beliefs of
the community in making decisions. In criminal matters, especially where
itinerant justices handled serious felonies, the personal knowledge of petit
jurors was indispensable to legitimizing justice as meted out. They might
be called on to inquire about a death to assist the coroner or to inquire into
so mundane a matter as the adequacy of fences or the proper width of a sow*s
yoke. So valuable was the voice of the community that specialized jury-like
bodies were entrusted with factual inquiries unrelated to judicial matters,
such as taxation, where their knowledge of a neighbor*s wealth provided
a court with information necessary to assess a rate. Three thousand miles
from England, distant from the crown and required to settle the questions
that Blackstone referred to when he wrote of questions on which the laws
of England were ※uncertain, and perhaps indifferent,§ these men would not
only wield their authority and articulate local norms as jurors but they
would also do so as judges and legislators.
III. REGIONALISM AND LEGAL DIFFERENTIATION IN THE
TRANSIT OF LAW TO NORTH AMERICA
The historical moment of English colonization in an age of legal response
to crisis mixed these contingencies of context and timing with the determinisms
of regionally different colonial impulses and circumstances to
produce enduring regional patterns of consciousness and behavior. The historic
legal template of localism, creative institution building, and reformist
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Regionalism in Early American Law 157
streamlining provided a basis for continued legal change and was reinforced
by the process of colonization, in which, according to R. Cole Harris, settlers
※experienced strong selective pressures that emphasized some tendencies
and atrophied others.§ Following those tendencies in different, regionally
specific directions as it adapted to the particular enterprises of different
colonizing projects, colonial law showed itself to be, as a bewildered British
official commented in 1708, ※a strange sort of Proteus capable of putting
on all shapes and figures as occasion requires.§9
English visitors also derided what they perceived to be the rustic crudeness
of colonial law, but they made such observations about all colonial
institutions. In reality, the dire necessities of survival had compelled settlers
to ignore many formalities of the law no less than those of other social
arrangements. It would have been impossible, in any case, to duplicate the
technicalities and distinctions that persisted in England by law and custom
without a fully trained legal or administrative cadre even if anyone
had attempted it. But it would be a mistake to oversimplify this process
as artless or inexpert and explain it as the result of frontier degeneracy or
unfamiliarity with proper procedures 每 the product of the ※creolean degeneracy§
that British officials invoked in their critique of provincial manners
and culture. Rather, the selectivity apparent in the way that the founding
generations drew on available English precedents reveals a far more skilled
and self-conscious process, the product of experienced and practiced users
of legal institutions in England. More accustomed to the convenience and
affordability of local courts than to the technicalities and expense of those at
Westminster, they replicated the less complicated instrumentalism of local
justice, drawing on what they knew and applying it selectively to their specific
regional imperatives in theNewWorld. As in other colonial enterprises,
no full-scale replication of specific English regional practice was possible.
Rather, as Jack Greene explains, a process of ※cultural reformulation§ took
place, by which all metropolitan ※inheritances were modified by powerful
elements inherent in the settlement situation.§ Rather than permitting a
wholesale replication of the patterns of any particular English region, this
process accelerated legal departure and hastened regionally adapted change
suited to particular NewWorld locales.
To be sure, common problems could draw on a common legacy to produce
common solutions, but regional variation lurked just below the surface. As
in England, the state relied on religious institutions for support in maintaining
order: Virginia turned to its Anglican vestries, and Massachusetts
to its congregations, for policing morals offenses and doling out poor relief.
9 Joseph H. Smith, Appeals to the Privy Council from the American Plantations (New York,
1950), 475.
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158 David Thomas Konig
In neither colony were ecclesiastical courts established, though for different
reasons: a lack of Anglican clergy in Virginia and a Puritan hostility
to church courts in Massachusetts. The same reasons forced changes in the
way marriages were solemnized: a lack of clergy in Virginia and a Puritan
theological insistence on civil ceremony. Though the colonists might escape
the bishop and his courts, they could not escape death, and both colonies
vested probate authority每 formerly an ecclesiastical jurisdiction 每 in their
secular county courts. In assigning to secular courts the jurisdictions once
exercised by church courts, the colonists were following proposals of English
law reformers; they were also following them by decentralizing justice in
local units of governance with an unprecedented range of authority and
competence.
The near-obsessive concern for securing property reflects the resourceful
selectivity of the colonists in establishing legal procedures that answered
their imported fears and responded to newly confronted realities. Enclosure
had left English tenants fearful of losing their lands, whereas the dissolution
of English monastic landholdings had produced a new class of landowners
also eager to protect their property. The recording of property interests 每
whether sale, mortgage, lease, will, or dower right 每 had existed as custom on
many English manors, and English law reformers unsuccessfully sought to
simplify the law when they demanded local title registries and the abolition
of all estates in land but two, fee simple and for life. In both Virginia
and Massachusetts these impulses led to the required recording of all land
conveyances 每 and in the same year, 1640. Victimized by the costs of ancient
tenures and buffeted by the economic pressures that had led landlords
to displace tenants and enclose their fields, the New England colonists
distributed land in freehold. Landholders would hold their property securely
in fee simple and without the demands of quitrents or the threat of ouster.
By the time the Puritans founded the Massachusetts Bay Colony and began
to distribute land broadly to its settlers in freehold tenure, the leaders of the
Virginia colony had had to bow to settler demands and distribute land there
too, unencumbered by feudal dues and secured by freehold title. Though
Virginians owed quit-rents 每 a demand that the New England Puritans
refused even to consider 每 in practice they held their land with a degree
of security and freedom known only to a minority in England. While the
Tudor Statute of Enrollments (1536) had fallen into disuse and the Statute
of Frauds (1677) was many years in the future, colonists in New England
and Virginia thus were making formal recordation a legal fact of life. Taking
ready advantage of the security that recording brought them, Massachusetts
colonists recorded indentures and boundaries even when not required to do
so, and Virginians had their local justices of the peace register not only their
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Regionalism in Early American Law 159
land transactions but also record the earmarks of their cattle or the terms
of a bill of obligation.
The justices of the peace who controlled the colonial county courts were,
like those who conducted quarter sessions in England, the men of affairs
of the county. Lacking the social differentiation and long-established institutions
that had made English local justice a patchwork of competing and
parallel jurisdictions, the colonists had little choice but to concentrate control
in institutions and in persons who could command respect. But as the
products of the colonization process that had created them, the county elites
of Virginia and New England embodied the differences behind the impulses
and circumstances of the two colonies. In Virginia this elite emerged from
the competitive race to control the tobacco boom. They were ※winners in
the servant sweepstakes§ that ousted those chosen by the Company and successfully
exploited those whose labor produced the wealth that supported
the new planter aristocracy, and they guided legal affairs toward protecting
their regime of acquisitive individualism. At Massachusetts Bay, the
ruling elite was an imported phenomenon: the earliest colonization of the
※Great Migration§ resembled more a series of group migrations than a trek
of individuals, and the distinctive coherence of the Puritan utopian vision
preserved an acknowledgment of authority in the ※godly.§ That vision also
carried with it a distrust of human authority, following the Calvinist fear
of ※what desperate deceit and wickednesse there is in the hearts of men.§
For that reason, ※well ordered liberty§ meant ※well-balanced authority in
the magistrates§ and further ※that all power that is on earth be limited,
Church-power or other.§ Before the founding generation died, they had
devised a ※Body of Libertyes§ and then a frame of ※Lawes and Libertyes§
that specified limits on government as well as on personal behavior. They
provided clear procedures to be followed in court, for example, and reduced
England*s list of more than 100 capital offenses to 15.
The pattern of rule by a hierarchy of status and wealth continued in both
colonies, with power concentrated in a manner ※which all men respect,§
remarked John Adams about Massachusetts, ※and all men deride.§ Adams*s
comment reflected another colonial reality, one that reproduced an English
reality in local courtrooms of both Massachusetts and Virginia: namely,
that the practical needs of governance meant that local oligarchs had to
share control with lesser men of the middling sort. If the county elites
did not govern unchallenged, neither did they govern unassisted. In that
respect activity at Virginia*s county courthouses differed little from those in
Massachusetts, where, as Adams noted of his own experience, ※the practice
of Law was grasped into the hands of Deputy Sheriffs, Pettyfoggers, and
Even Constables, who filled all the Writts upon Bonds, promissory notes
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160 David Thomas Konig
and accounts, received the Fees established for Lawyers and stirred up many
unnecessary Suits.§10
Wide participation in legal institutions was exceeded by an even wider
participation in the market for land and other property in which emerging
legal practices expressed local goals. The broad distribution of freehold
meant that a much larger segment of the population enjoyed the advantages
of property ownership. Colonists were thus able to buy, sell, mortgage, or
rent their land much more freely than any generation of Englishmen could
remember, but with that liberation of property came a greater need to secure
it. Participation in a market economy brought with its advantages the risks
not only of loss but also of fraud or otherwise unrecoverable obligations. John
Locke was surely correct when he wrote that ※in the beginning all theWorld
was America§ in its abundance of property unprotected by government,
but once America became an English property-holding society it became
necessary to provide for ※the preservation of their property,§ and it was through
the creative and synergistic reconstituting of English legal arrangements
that they accomplished this objective. Laws that seem the sudden product
of immediate action, wrote Sir Matthew Hale, actually reflect a process he
observed in his study of English law; namely, that of ※time, which as it
discovers day after day Inconveniences, so it doth successively apply new
Remedies; and indeed it is a kind of aggregation of the discoveries, Results,
and applications of ages and events.§11
Ordinary but extensive dealings in property over time thus led colonists
in Virginia and Massachusetts to reach back to procedures from their experiences
at church or manor courts for the legal mechanisms needed in a new
land of property, presenting another example of Julius Goebel*s observation
that many colonial legal practices drew from ※the backwaters of the
mainstream of the common law.§ That these practices usually began as the
responses of erstwhile tenants transformed into cautious smallholders must
not obscure the legal knowledge behind them nor the way that intelligent
assessment and calculation of possibility move legal change. The new
bourgeoisie of landed settlers knew enough of the law to know that oral
agreements or implied promises might not suffice in court to protect their
interests. It was for this reason that a Virginia county court in 1682 prudently
advised two men to convert their ※verball agrement§ into a written
lease. Servants promised their freedom knew enough law, too, to insist that
10 The Diary and Autobiography of John Adams, ed. Lyman H. Butterfield (Cambridge, MA,
1962), III: 274.
11 Sir Matthew Hale, Of the Alteration Amendment or Reformation of the Lawes of England
[1665], cited by Howard Nenner, By Colour of Law. Legal Change and Constitutional
Politics in England, 1660每1689 (Chicago, 1977), 15.
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Regionalism in Early American Law 161
vows to free them were stronger if written down and specified the quid pro
quo of consideration that made the contract valid. The nature of the agricultural
economy and the aspirations of common people accelerated a turn to
law and demanded effective legal instruments tailored to their needs. Simpler
also meant better if it suited the basic needs of the face-to-face societies
of the first settlements. If a lack of specie required Virginians to use tobacco
as a medium of exchange, they also easily adapted to transatlantic bills of
exchange. If keeping accounts in a ledger book sufficed for village life in
early Connecticut, later generations of colonists had little trouble using
more formal written obligations, which replaced the simpler procedures
when commercial activity created debts of a more distant nature.
The disruptions of the Civil War and Interregnum gave Virginia and
Massachusetts the benefit of additional time and relative isolation to continue
framing new and regionally specific templates for the development of
legal institutions. The problems they faced and the solutions they devised
in this first wave of colonization set patterns that would serve well in the
colonies that joined them to create two great regional aggregates in the
Chesapeake and New England. The vastly differing patterns in employing
this autonomy over time produced profound variations between these two
earliest regional legal clusters 每 what the Virginia jurist St. George Tucker
meant by the differing ※motives and intentions of the colonists.§ ※Two ships
sailing from the equator to the opposite poles would scarcely pursue more
different courses,§ he wrote, ※or arrive at more opposite points.§12
The Chesapeake and New England were the first two great cultural
hearths of early America, and they forged regionally dominant legal regimes
because the contingent timing of their founding transferred to North
America the propulsively innovative force of the moment of seventeenthcentury
legal crisis and the varying responses applied to it. For Virginia
and the Chesapeake, this would embody a regime of acquisitive individualism
and the power of harsh and repressive magistratical authority to
control labor. For New England, this would mean the force of a communal
ideal fueled by the religious commitment to Puritanism. The influence of
Massachusetts law was felt elsewhere in New England, especially in the
colonies that ※hived off§ from it, confirming Tucker*s observation that the
※Massachusetts colony may be considered as the parent of the other colonies
of New-England.§ Virginia*s laws and structures were replicated elsewhere
in the South, where its labor system became the basis of a distinctive regional
12 St. George Tucker, ※Of the Unwritten, or Common Law of England; And Its Introduction
into, and Authority Within the United States,§ in St. George Tucker, A View of the
Constitution of the United States. With Selected Writings, ed. Clyde N.Wilson (Indianapolis,
1999), 313每70, citation at 336每37.
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162 David Thomas Konig
economy based on its most significant ※departure from the principles of the
common law . . . in the establishment of slavery; a measure not to be reconciled
either to the principles of the law of nature, nor even to the most
arbitrary establishments in the government at that period.§13
These two regionally specific patterns had formed even before England
established colonies in the territory between them, where a later and different
historical moment provided forces that would create a third legal
culture in the Middle Colonies of New York, New Jersey, Pennsylvania,
and Delaware. There, the remnants of Dutch and Swedish colonization and
a rapidly increasing flow of non-English immigrants introduced an element
of social diversity unknown to the north or south, where sharply reduced
rates of white immigration left society more homogeneous. Although the
English largely succeeded in imposing the formal legal institutions of the
common law in these new colonies, they quickly discovered that they could
not obliterate strong cultural legacies, especially skillful use of the law
and defiant attitudes toward authority. The combination of forces that had
shaped the older colonies not only continued but also gained momentum
from the economic opportunities that had led English imperialists to covet
the mid-Atlantic region and establish new colonial ventures there.
English attention had been drawn to the mid-Atlantic by the enviable
success of Dutch interlopers using the port ofNewAmsterdam as a base from
which to penetrate England*s colonial markets to the north and south. The
conquest of New Netherland (which had absorbed New Sweden) required
three wars between 1664 and 1674, but it proved easier than establishing
political control, as England*s first governors found a diverse and uncooperative
population of Dutch, Swedes, and Finns, as well as Jewish and Muslim
religious refugees welcomed by the tolerant policies of the Dutch republic.
Despite the efforts of military governors to impose autocratic rule there, the
Dutch republic*s tradition of political decentralization had left the colony
with a legacy of independent-minded local settlements unwilling to yield
to their demands. The Dutch, in fact, were a minority in their own colony,
whose population was the most diverse of any in North America and also
included a large number of Puritan emigrants from New England, who
quickly dominated Long Island and defied Dutch control.
Dutch New Netherland, like its parent country, had thrived by encouraging
trade and recognizing the contributions that a diverse population
brought to a modern market economy. When Governor Peter Stuyvesant
joined the Dutch Reformed Church*s efforts against nonconformists, the
Dutch West India Company overruled him. ※Jesus Christ is good,§ so it
was said, ※but trade is better.§ The traditional usury limit of 6 percent was
13 Ibid., 323 (slavery), 331 (parent).
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Regionalism in Early American Law 163
increased to 10 percent. Dutch law conferred full assignability on debts,
including specialties, to facilitate exchange. Aspects of the Roman civil
law that fostered economic growth allowed women to take part in trade on
their own, without their husband*s approval. Keeping their maiden names,
jointly executing documents with their husbands, or signing obligations
that bound their husbands (the civil law had no doctrine of coverture), they
became partners who shared profit and loss in family business. Settlers there
※love nothing so much as their freedom,§ noted a German visitor, and colony
officials who tried to impose religious conformity met spirited resistance,
as did attempts to control local courts, which retained their Dutch magistrates
even after English conquest. The conquest of New York marked a
new moment in English colonization 每 an envious acknowledgement of the
Dutch model of commercial empire. The same men who urged the seizure
of the Dutch trading colony, in fact, also backed the creation of the Royal
Africa Company, which drew England officially into the slave trade. Urging
English conquest of New Netherland, a powerful adviser to Charles II
explained, ※What matters this or that reason? What we want is more of the
trade the Dutch now have.§
Pennsylvania revealed other features of the Restoration moment. A proprietary
colony given to William Penn in recognition of his father*s aid to
the Stuart cause, its success would be measured by its ability to attract large
numbers of colonists to cultivate land, produce trade goods, and provide
quitrent revenue to its proprietor. Restoration proprietors thus competed
with one another in offering religious toleration and generous terms for
land ownership. As also occurred in the case of the Carolina proprietary created
to the south of Virginia, however, generous inducements of land and
religious freedom unleashed a popular refusal to pay quitrents and overwhelmed
proprietary goals. The slaveholding settlers who came to Carolina
from theWest Indies soon followedVirginia*s pattern, whereas Penn*s ※Holy
Experiment§ drew Quaker colonists with a heritage of hostility to hierarchy
and an adept use of the courts to assert and protect their rights and
privileges. Long-suffering victims of Stuart persecution that used common
law courts to imprison them by the thousands, the Quakers had responded
to legal repression with tenacious and skillful legal defenses. They created
a ※Meeting for Sufferings,§ a legal defense unit that enlisted the aid of eminent
barristers and judges to defend Quakers in the courts. Penn himself
was party to a landmark in legal history after jurors acquitted him and
another Quaker against the direction of the judge and were fined for their
verdict. Bushell*s Case (1671) established the principle that jurors could not
be punished for their verdicts. Quakers schooled themselves in procedure,
standards of proof, the role of witnesses, the limits of search and seizure,
and exploiting technical error in indictments and prosecutions. Quakers
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164 David Thomas Konig
were known for their legal adroitness, and ※were thus hardly legal primitives
when they contemplated settling the Delaware valley,§ writesWilliam
Offutt; ※instead, they possessed a well-considered legal agenda grounded
in both reform theory and personal experience.§
Penn*s colonial law reforms, which he introduced first in the Quaker
West Jersey settlement in 1676, would reflect this past with their many
protections of due process, leading Thomas Jefferson to call him one of the
great lawgivers of all time. Penn*s ※Laws Agreed Upon In England§ for
Pennsylvania required ※That in all courts persons of all persuasions may
freely appear in their own way, and according to their own manner, and
there personally plead their own cause themselves, or if unable, by their
friends. . . . That all pleadings, processes, and records in courts, shall be
short, and in English, and in an ordinary and plain character, that they may
be understood, and justice speedily administered.§ In practice, moreover,
juries decided law as well as fact, and judges inWest Jersey had no authority
to overturn verdicts.
By the end of the colonial period, this Quaker tradition of shrewd litigation
had produced the image of the ※Philadelphia lawyer.§ It also left a
powerful anti-authoritarian streak that fueled quarrelsome rivalries and suspicions,
especially among the many different ethnic groups Penn recruited
for his colony. He proudly observed that Pennsylvania was ※a Collection
of divers nations in Europe: As, French, Dutch, Germans, Sweeds, Danes,
Finns, Scotch, Irish and English. . . . And which is admirable,§ he added
wishfully, ※they live like People of One Country. . . . § Penn*s ideals, unfortunately,
could not erase ethnic rivalry and distrust, and diversity left the
colony beset by ※scurvy quarrels that break out to the disgrace of the
province.§ Quaker replacement of oaths with affirmations did not satisfy
suspicious Anglicans, who refused to honor them. Anglican court officials
met with contempt from Quakers. Quakers regarded Pennsylvania*s three
Lower Counties as a ※Frenchified, Scotchified, Dutchified place,§ and they
had few regrets over the counties* decision to secede and become the separate
colony of Delaware. ※Be not so governmentish,§ Penn had urged his
squabbling settlers, but to little avail. Ironically, they were taking his libertarian
goals to a logical but unanticipated result. After his death, in fact,
as the Quakers became a minority in their own province, they transformed
their religious millennialism into a legalistic protectiveness of minority
status that remains one of the Middle Colonies* most significant regional
contributions to American law.
IV. THE ACHIEVEMENT OF REGIONALISM
In 1696 the Crown and Parliament cobbled together a system of imperial
administration that they hoped would produce, among other positive
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Regionalism in Early American Law 165
results, a more efficient and uniform administration of law in the colonies.
They failed, largely because of bureaucratic inefficiency, special interest lobbying
by colonists and British traders, and resistance from colonial courts
and legislatures. These locally entrenched legal departures defied any and all
imperial attempts at uniformity, and in 1730 an exasperated imperial official
could complain ※that throughout the whole continent of North America,
there are not two colonies, where the courts of justice or the methods of
proceedings are alike. . . . §14
Parliament tried again, of course, in the 1760s. It was, appropriately,
a conservative member of Parliament and agent for New York, that most
fractious of North American colonies, who grasped more fully the course
of colonial legal development when he urged abandonment of the plan in
1775. Representing New York*s interests, Edmund Burke came to realize
the necessity of recognizing the diversity of interests in the empire and the
need to bring them together 每 loosely and in a de facto manner 每 under
their common, broadly understood goals as demonstrated in their shared
※history of liberty.§ Typical of Enlightenment historians, he understood
how different conditions create different social and political forms, and he
understood how the successful governing of British North America must
not demand conformity to ※abstract ideas of right§ or ※mere general theories
of government.§ Rejecting the constitutional model of ※a single state
or kingdom§ for the empire and colonies, he explained that Parliament
must govern ※according to that nature, and to those circumstances§ prevalent
in the separate colonies. Burke acknowledged the regional distinctiveness
of the various colonies, noting the power of ※religion in the northern
provinces§ as contrasted to the ※high aristocratick spirit of Virginia,§ where
experience with slavery made Virginians all the more jealous of their own
rights. His plan of reconciliation rested on ※a wise and salutary neglect§
that conceded ※the legal competency§ of each colony to choose its own way.
Only on that basis had the colonies survived and thrived, and only on
that basis could the empire continue to retain their loyalty. His empire
would follow a model with deep roots in England*s legal past before 1700,
one that the American colonists assumed to be an enduring constitutional
norm and to which they would return when confronted with their own
problems of shared sovereignty: an ※aggregate of many states, under one
common head§ where ※the subordinate parts have many local privileges and
immunities.§
Burke did not expect that such a system would function with no problems,
and he anticipated the conflicts that have bedeviled American law
with its regional variations: ※Between these privileges, and the supreme
common authority,§ admitted this historically informed observer, ※the line
14 Smith, Appeals, 484每85.
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166 David Thomas Konig
may be extremely nice.§15 With independence Americans suddenly had to
confront such variety too, in their halting efforts to create an unprecedented
federal system 每 one that Ayers and Onuf aptly describe as ※a complex constitutional
regime that would secure the equal rights of localities as well
as of individuals.§ The legacy of early American local variation provided
the necessary legitimacy and legal grounding for the federal system, with a
template that simultaneously rejected English corruption and provided an
alternative suited to the new states and nation.
St. George Tucker, in his effort to produce an edition of Blackstone*s Commentaries
purged of anti-republican doctrines incompatible with American
political development, provided a general theory of colonial legal divergence
from English law that also accommodated 每 indeed, emphasized 每
the resulting regional differences. His product, though motivated by the
political impulses of the time, is nonetheless valuable as the thoughtful and
careful analysis of two centuries of early American legal history. An ardent
states* rights Jeffersonian, Tucker presented a theoretical model and factual
narrative to justify regional prescription. The colonies had abandoned
many of the rules of English law, he maintained, not out of legal naivet´e but
rather owing to the isolation that made consulting England on conformity
impossible when ※surrounded by hostile savage nations, and equally destitute
of support from the Crown.§ Though he acknowledged the absence of
a cadre of trained English lawyers in the settlement of the colonies, legal
departures had occurred as self-conscious adaptations and the abandonment
of rigidities that would have threatened the success of the ventures: ※the
colonies must either have been swallowed in the vortex of anarchy, or have
expired under the peine forte et dure of submission to rigid, and impracticable
rules.§16
Tucker knew, too, that ※the common, or unwritten law must have been in
a state of continual change, from the first institution of parliaments, in the
thirteenth century, to the present time,§ and that over the centuries of settlement
colonial law had changed too. Freely interpreting the unwritten law
during their colonial history, however, the colonists had done so in different
ways. Changes in statute law also had had disparate impacts on the various
colonies and had become a source of ※endless variety, and disagreement,
between the civil institutions of the several colonies.§ Because only those
English statutes in force at the founding of a colony had legal effect there,
he explained, older colonies had experienced less Parliamentary intrusion
15 ※Mr. Burke*s Speech on Moving His Resolutions for Conciliation with the Colonies§
[March 22, 1775], in [Edmund Burke] On Empire, Liberty, and Reform. Speeches and Letters,
ed. David Bromwich (New Haven, 2000), 66每135, citations at 72, 79, 86, 94.
16 Tucker, ※Of the Unwritten, or Common Law of England,§ 321.
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Regionalism in Early American Law 167
than newer ones. As a result, some enactments had ※no effect or operation
in Virginia§ but did, say, in Georgia, the colony established most recently.
※Those who are acquainted with the prodigious changes made in the laws
of England, during the period above-mentioned, will at once discover that
there could be no common rule of law between the two colonies, unless
that rule could be deduced, without alteration, from a period antecedent to
the charter of Virginia. The same observation will hold as to all the other
colonies, neither of which were bound by any English law that was not in
being at the time of its own establishment.§17
Tucker added another 每 ※and by far the most copious§ 每 element fueling
legal regionalism: ※the power which the legislatures of several colonies
were perpetually engaged in exercising, viz. that of making laws adapted
to the views, principles, situation, and circumstances of their respective
inhabitants and countries.§ Except for the requirement that colonial law
be not repugnant to English law, assemblies had been free to pass any laws
※deemed applicable to their respective situations and circumstances.§ Not
surprisingly, ※the application of this rule in the several colonies will be found
to have been as various as their respective soils, climates, and productions.§
Any effort to understand American legal development, therefore, had to
begin by acknowledging the historical force of regional variation and ※must
again abandon all hope of satisfaction from any general theory, and resort to
their several charters, provincial establishments, legislative codes, and civil
histories, for information.§18
Tucker had a powerful and compelling reason to include his argument
for regional variation with his edition of Blackstone 每 his abiding political
animus against the Federalists. Like Jefferson, he feared what he perceived as
a stealth campaign to undermine the true meaning of the federal union and
replace it with a consolidated national government. The arch villain in this
plot, he believed, was Massachusetts, and he devoted his greatest energies in
emphasizing regional autonomy to demonstrating how incompatible were
the legal systems of Massachusetts and Virginia, ignoring the colonies separating
them. Following Jefferson*s lead in emphasizing regional variation
in the new nation, Tucker attributed this polarization to vastly differing
※local circumstances,§ as well as to the ※differing motives and intentions of
the colonists, in their respective migrations.§ Unashamed at the acquisitive
commercial impulse behind the Virginia Company, Tucker admitted that
Virginia*s settlers had been ※allured by the hopes or prospects of immense
riches, or a comfortable subsistence, at least.§ As a result, they had little
reason to reject English law and acted to ※conform as near as possible both
in doctrine and in practice to all the institutions of the mother country.§
17 Ibid., 321每22, 326. 18 Ibid., 327每28.
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168 David Thomas Konig
Those who settled Massachusetts Bay, ※[o]n the contrary,§ represented a
dissenting tradition in all aspects of their life. They ※fled from what they
accounted tyranny, both in church and state§ and established a veritable
counterculture based on a ※prejudice against the laws and government of
the parent state, which would induce a general rejection of all such as were
inimical to those principles, which prompted them to migrate.§ The result
was a reformist legal culture far removed from the legal conservatism of
Virginia. ※And as two strait lines, which diverge from each other at the
same point, can never after meet or become parallel, so the institutions of
two countries, founded upon such discordant principles, could never after
be assimilated to each other.§19 The rivalry between the Chesapeake and
New England was a staple of the culture of the early republic, and Tucker*s
contrasts, though perhaps overdrawn, nevertheless reflected the cultural
self-awareness of regional divergence that had driven the two apart and
produced legal cultures differing in lesser degree in the colonies located
between the two. Tucker*s observations were not merely casual ruminations,
but rather the product of careful research and inquiry, or what Ayers
and Onuf would include in their general model of ※reciprocal definition§
or even mutual hostility 每 what John Adams described to Jefferson as a
※damnable Rivalry between Virginia, and Massachusetts.§20
Tucker observed a phenomenon no less familiar in his day than in today*s
post-modern awareness of historicized discourses. The charters of the two
bay colonies, Virginia and Massachusetts, both specified that land was to
be held ※in free and common socage, as of the manor of east Greenwich
in the county of Kent.§ When the two colonies interpreted this clause in
diametrically opposite ways, however, Tucker attributed the divergence not
only to the lack of ※learned counsel§ among the colonists but also to legal
opportunism flowing from different agendas. The Puritans used the East
Greenwich clause to import the local Kentish principle of partible inheritance
through gavelkind, as well as an immunity to forfeiture on conviction
of treason or felony 每 rejecting application of ※the maxim, the father to the
bough, the son to the plough.§ Only a legally astute legal draftsman 每
not an artless rustic unfamiliar with the niceties of English common law 每
would have pounced on such an opening that conformed so usefully to
Puritan concerns. Cleverly, it protected the Puritans, whose religious heterodoxy
and political fractiousness had exposed them to persecution and
prosecution in England, if any among them were to be followed into the
19 Ibid., 326.
20 Adams to Jefferson, June 30, 1813, in The Adams-Jefferson Letters: The Complete Correspondence
between Thomas Jefferson and Abigail and John Adams, ed. Lester J. Cappon (Chapel
Hill, 1959), 348.
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Regionalism in Early American Law 169
New World by the Laudian policy that had driven them there in the first
place. Moreover, partible inheritance promoted the Puritan goal of communalism
by providing land and thus community membership within a
broadly inclusive society. By contrast,Virginians, seeking to recreate a traditional
hierarchical social order based on more concentrated land ownership,
interpreted the clause to establish primogeniture. Protecting a regime of
property holders who could jealously suppress and punish rivals, they also
※adopted in its fullest latitude§ the English law of forfeiture for treason
or felony.§21 Memories of England*s recent past thus provided the earliest
colonists not only with the cautionary experiences of crisis but also
with different agendas for the type of legal regime that would further their
goals.
Those agendas shaped policy of land use and provided different instrumental
designs for law. In Virginia from the beginning, land use had an
economically instrumental purpose: the personal benefit of those individuals
who owned it. Initially, this meant those investing as stockholders in the
Virginia Company of London; with the collapse of the Company, land and
its profits became the prize for those who gained control of the colony in
Virginia. In Massachusetts land use adhered to more distributive impulses
consistent with Puritan goals of a consociational godly community. A town
was founded only after a congregation had been gathered, and all dwellings
were to be built within a half-mile of the meetinghouse. The ※fathers of
the towns§ were the legal proprietors of all undistributed land, and they
granted it according to the godly goals of the gathered community. This
took the form of favoring church members with larger lots and awarding
land proportionally to the existing hierarchy of wealth 每 the ※outward signs
of inward grace§ 每 as well as to family size. Stewardship was a corollary of
Puritanism, and the town meeting, which included all heads of households,
had to approve land sales to outsiders, who were expected to reside in the
town and not enjoy its benefits as absentee landlords. Town bylaws meticulously
governed day-to-day affairs, guarding the public trust by regulating
the cutting of timber and the taking of fish. Some of these efforts came
to naught 每 population growth quickly made the half-mile rule impractical
每 but they epitomized a legal culture that also set prices and wages in
a committed effort to advance social purposes through property. Although
the Bay Colony*s first governor, John Winthrop, ultimately lamented that
※it was a very sad thing to see how little of a public spirit appeared in the
country, but self-love too much,§ the founding ideal would leave a potent
legacy. Throughout the period the New England colonies continued to
punish morals offenses that were largely ignored in the southern colonies:
21 Tucker, ※Unwritten, or Common Law,§ 336.
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170 David Thomas Konig
Maryland courts, in fact, prosecuted only one case of fornication in the
seventeenth century.
The common pursuit of legally defined paradigms of social restoration,
therefore, embraced competing agendas. For the Virginia Company of
London, the model of the colonizing joint-stock enterprise provided a template
for efforts to use employees to wrest profits, through commercial
and extractive enterprise, from a hinterland inhabited by a hostile population
perceived to be alien and intractably savage. Replicating the model of
marchland conciliar rule, the Company provided a blueprint for exploitative
control of a local laboring population. But even before the Company
collapsed in 1624 its colonists had established their own conciliar rule
through control of the council at Jamestown and had embarked on constituting
themselves an English landed gentry governing through a legal
system suited to their acquisitive ambitions. The Company*s first councilors
employed their powers to the fullest in protecting the financial interests
of investors (including themselves), and their successors used them no less
sternly to guard their own, now individual, self-interest. Sir Thomas Gates
took literally his charge to govern ※rather as a Chauncelor then as a judge§
and to appoint lesser officials with unspecified and discretionary power as he
wished. Gates made the fullest use, too, of the now infamous code known as
※Dale*s Laws,§ which conferred the powers of martial law when needed. A
rival councilor was shot, allegedly for treason, and protests against Gates*s
rule were brutally punished. Though the martial code was terminated, it
had set a pattern 每 reinforced by the inclinations and imperatives of a
regime bent on re-creating a society ruled by a landed elite controlling the
mechanisms of justice 每 that his successors could follow. Despite the formal
authority of the common law, that of conciliar justice operated in tandem
with it. And with no objection from England: throughout the 1620s Parliament
distinguished the protections of the common law in England from
their absence across the seas, advising the tyrannical head of a Cornish
enterprise that ※he was fitter to have a dominion in America than in this
kingdom.§
Departure from the common law allowed Virginia and Maryland, like
their sister plantation colonies in the West Indies, to devise and refine
that most deviant of anomalies in English law, human chattel slavery. Puritanism
was not incompatible with slavery 每 Massachusetts enslaved Indians
and Africans, and the Puritan colony of Providence Island in the Gulf of
Mexico engaged heavily in the trade and use of African slaves. Lacking an
economic demand for such labor, however, the New England colonies had
little use for slavery and did not develop the comprehensive slave codes of
the South. But the heavy demand for tractable labor on the Chesapeake
made African laborers de facto slaves even before there existed any ※law§ of
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Regionalism in Early American Law 171
slavery there. The brutal regime of the first Virginia planters could draw
on a tradition of martial discipline to compel work and to punish with
discretion. Africans were bought and sold, treated more harshly than white
indentured servants, and held to longer terms of servitude. Explicit legal
distinctions between blacks and whites began to be made before the Civil
War, and by the Restoration slavery existed in law inVirginia and Maryland.
Within a generation, slavery would become a central feature of life in the
new Carolina colony to their south, where ´emigr´e planters from the West
Indies brought with them experiences and legal precedents of the islands,
which they amalgamated with what they found on the mainland. ※Colonial
lawyers were analytically opportunistic,§ writes Jonathan Bush, in creating
slave laws, adopting rules that had governed villeins, apprentices, and
indentured servants, as well as property under the common law. While
the common law for whites moved inexorably toward more freedom, the
common law principle of legal thinking in favorem libertatis was reversed
for blacks. Continental civil law also provided legitimacy for change where
needed, making descent of status follow that of the mother, thus providing
legal support to the social reality of white owners impregnating their
female slaves. Civil law principles of slavery thus survived not only in those
colonies settled by Continental kingdoms in New France and New Spain
but also in that of New Netherland, where a ※half-free§ status obtained,
in which slaves owned by the Dutch West India Company owed yearly
dues and a specified amount of labor to the Company but worked for other
masters and were entitled to keep part of their earnings, a relic of civil law
peculium.
Though it is easy to ignore differences between Protestant Virginia and
Roman Catholic Maryland, legal change in the Chesapeake thus moved
along parallel lines guided by the needs of a plantation society and by the
peculiar pressures placed on it. One especially notable pressure was the
frightful mortality rate brought on by the climate and environment and by
the demanding work regimen of tobacco cultivation, but aggravated by a
persistent malarial pestilence imported from the Kentish lowlands. Early
death combined with the sexual imbalance of an economy that attracted
far more men than women as emigrants to drastically alter the shape of the
family there. With sex ratios ranging from 3:1 to 6:1, it was difficult for
families to form, and with mortality rates that usually killed one spouse or
the other within seven years, Chesapeake society was one of orphans (defined
as a child with one surviving parent) and widows or widowers, in which,
Carr andWalsh have told us, ※dying husbands were understandably anxious
about the welfare of their families.§
Colonists in the two Chesapeake colonies afflicted with such misery
looked to their legal systems for support. The peculiar demography of the
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172 David Thomas Konig
Chesapeake left a population of widows who could remarry more easily and
more often than widowers; on reaching the age of forty-five or beyond the
age of reproduction, moreover, they were likely to outlive their husbands.
At common law, however, widows were not the heirs of their husbands; to
a far greater extent than their brothers in England, therefore, Chesapeake
husbands often left their entire estate by will to their widows 每 up to 20
percent of them in Maryland by the 1660s. Other men in both colonies
named their widows as estate executors, allowing them to keep control
of family assets as long as possible. On remarriage, women sought legal
protection of the property they brought with them to their new marriages.
Although the doctrine of coverture, with its corollary of the unity of person,
had invalidated contracts made by women before or during marriage, courts
in the Chesapeake tended to honor them as expedients to assure property
to a widow. In Anglicized New York, by contrast, where such demographic
patterns did not exist, the strict application of coverture and other common
law rules reversed Dutch practices on female property holding.
Chesapeake courts took a more active role, too, in protecting the assets
of orphans. Though a widowed mother was legally the guardian of her children,
she had no authority over property bequeathed to them; they were
※orphans.§ In Maryland, where half of all children in the seventeenth century
spent some part of their childhood under the care of a stepfather or
other guardian, the English bishop*s ※ordinary court§ served as a model
for the creation of orphans* courts that examined and audited the arrangements
made for orphans. Other powers designed to protect orphans, initially
entrusted to the proprietor*s Prerogative Court, devolved on county courts.
In Virginia, too, the regular county courts assumed similar responsibilities.
The centrality of the family unit placed enormous pressure on the courts
of both colonies to assure its survival amid relentless destabilizing forces.
But the differing legal responses of the two regions throw into sharp relief
the emergence of two regionally different legal cultures. The utopian religious
impulse of the Puritans had made the family a cornerstone of their
new godly commonwealth, and to make it so they revolutionized domestic
relations. Though they never completely replaced the gender hierarchy of
English society, they supplemented it with one of godliness. Though the
male head of household would not be supplanted, his paternalistic control
was to be directed to providing godly attention and concern. Marriage was
to be a meeting of hearts before a meeting of hands, so went the axiom
of companionate marriage, and husbands were assumed to be caring and
protective of their wives. Where environment had produced in the Chesapeake
a range of legal protections for a wife*s individual property rights,
Puritan social philosophy rejected the individualism inherent in such property
arrangements. As a result, the Puritans saw less need to provide what
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Regionalism in Early American Law 173
they regarded as intrusive and protective legal rules that would diminish
the paternal capacity of a husband and weaken the family bond. The ironic
result of this philosophy was to entrust husbands with a much greater control
over family property and to limit legal methods that wives might use
to assure their own control over their own property. Connecticut, the most
Puritan of the colonies, provided little or no protection to married women*s
property rights until well into the eighteenth century. On questions of
female property rights, therefore, radical religious tradition refused to provide
the protections seen in Virginia and her southern neighbors. Quaker
ideals of marriage followed the Puritan tradition, for example, and Penn*s
laws retained strict rules of coverture.
Nowhere is this distinction illustrated more clearly than in the matter
of dower, the common law right of a widow to a life estate in one-third of
her late husband*s real property, and a portion of his chattels. A husband in
Virginia was barred from alienating any real property owned during marriage,
as the income from that property (or the use of a part of a home) was
assumed to serve as a type of pension for his widow. To sell land, therefore,
a husband had to have his wife questioned privately by a magistrate to provide
an uncoerced approval of the sale. Virginia and its southern neighbors
adhered to the requirement of private examination to a far greater degree
than Massachusetts or its New England neighbors, and more so than Pennsylvania
or New York too. Maryland courts peremptorily rejected acknowledgments
they deemed inadequate. The property subject to dower might
be reinterpreted too: though generally dower applied to any land held at
any time during marriage, Connecticut limited it to property held by the
husband at his death and until 1723 wives lost all separate property rights
in land they brought to the marriage. To the south, by contrast, Virginia
went so far as to treat chattel slaves as real for the purposes of adding them
to dower, assuring widows the labor needed to cultivate crops. Whereas the
Chesapeake colonies were generally expanding and giving greater assurance
to widows* dower rights, therefore, the New England experiment 每
especially in Connecticut 每 tended to limit them.
English wives enjoyed the benefits of the so-called separate estate, an
arrangement in trust by which a woman*s property was reserved to her
use, though under the control of trustees. Separate estates became a useful
protection for well-to-do wives in Virginia, but New England discouraged
the creation of separate estates, as it also did private separation agreements.
What those two arrangements had in common, in addition to the use of
legal mechanisms to protect a married woman*s property, was their reliance
on the use of equity for enforcement. In coming to North America, the
Puritans brought with them a distaste for equity and the broad authority
of the chancellor, whereas the southern colonies, whose settlers had not
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174 David Thomas Konig
supported radical English reform of the law, had no such tradition of resentment.
Indeed, the need to protect wives from negligent or wasteful husbands
drew on equity*s long tradition of guarding the interests of the weak and
vulnerable. The Chesapeake colonies, therefore, used equity to enforce separate
estates and private separation agreements. To overcome the disabilities
created by the common law doctrine of coverture and advance married
women*s property rights, therefore, English colonists had to resort to noncommon
law practices, whether through equity or statutory modification.
Legal alternatives to the common law appear most clearly, of course, in the
Dutch, French, and Spanish colonies. In following the Continental civil law
tradition 每 where, Blackstone observed, unity of person did not exist and
※the husband and wife are considered as two distinct persons§ 每 women
sued without their husbands and enjoyed community property rights.22
Ironically, this enhanced equitable protection of married women*s property
in the Chesapeake colonies paralleled 每 and perhaps resulted from 每
a strong aversion to allowing absolute divorce. Refusing to make absolute
divorce an option, Virginia and Maryland equity courts instead enforced
separate maintenance agreements unavailable at common law. By contrast,
the Puritans* ideal of the companionate marriage led them to allow complete
divorce long before it became available in England. Believing that dysfunctional
marriage relationships threatened the godly community, they allowed
irreparably damaged marriages to be dissolved and encouraged new marriages
to form. Massachusetts and Connecticut, in fact, took the additional
step of allowing divorce to men and women on the same grounds, whereas
English law would perpetuate a formal bias in favor of husbands until 1923.
Connecticut refused to grant separation agreements at all and instead led
the colonies in granting full divorces, allowing nearly a thousand from 1670
through 1799. Rejecting the path taken by English law to keep divorce a
legislative matter, these colonies also vested it in their courts. To the south,
absolute divorce was impossible, and remained so in South Carolina until
well into the nineteenth century.
Varying attitudes toward equity provide a touchstone for assessing
regionalism in American law. Southern colonies established equity courts,
whereas New England shunned them, giving only piecemeal equitable
authority to common law courts to chancer bonds and to foreclose on
mortgages and defeasances. In Pennsylvania, where Thomas Jefferson commented
※that the two characters [of North and South] seem to meet
and blend and to form a people free from the extremes both of vice and
virtue,§ attitudes toward equity showed the same mixed quality. Indeed,
equity amply demonstrates Jefferson*s general proposition that the regional
22 Blackstone, Commentaries, 1: 432.
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Regionalism in Early American Law 175
peculiarities of the two regions ※grow weaker and weaker by gradation from
North to South and South to North.§ In Pennsylvania as well as in New
York, hostility to equity courts rested not so much on ideology as on a practical
aversion to their complexity and to the potential abuse by a proprietary
government. ※[A]s for the Court of Chancery,§ argued its opponents in the
Pennsylvania assembly in 1736, ※when well Manag*d is the finest in the
world so on the other hand if managed by ignorance, prejudice, or Interest
must be the worst.§ Penn*s charter gave the governor and council authority
to establish equity courts, but they did so only with the concurrence of the
popular assembly, which chose to confer equitable authority only on locally
controlled courts and gave the governor the authority of a chancellor only
when it trusted him. Similarly, New Yorkers so distrusted their governors
that they resisted their chancellor-governors and fought them relentlessly
until the 1750s.
The reach of equity extended beyond matters of family and touched many
aspects of life. Historically, direct attacks on equity usually identified postjudgment
interference as the most irritating grievance. Josiah Quincy, Jr., a
Bostonian visitingWilliamsburg, Virginia*s capital, in 1773, responded in
amazement when told how judges of the superior court constituted themselves
as a court of equity (sitting without a jury) and reversed the outcome
of a case. ※I am told that it is no uncommon thing for this court to sit one
hour and hear a cause as a Court of Law; and the next hour, perhaps minute,
to sit and audit the same cause as a Court of Chancery and equity: and if
my information is good, they very frequently give directly contrary decisions.
Voltaire, his Huron or Pupil of nature might here exercise their talent
of wit and sarcasm.§23 Quincy*s objections gave voice to a New England
legal culture that favored creditors over debtors and regarded equity as an
ill-conceived boon to the indebted. By the middle of the eighteenth century,
Massachusetts courts relied heavily on the participation of juries to
obtain a community sense of just obligation, and Massachusetts creditors
were accustomed to bringing actions in assumpsit or case, where equity was
barred. Their notion of a just obligation was incompatible with what Charles
Gray has described as equity*s help for ※imprudent or unlucky debtors.§
Massachusetts showed little sympathy for debtors who tried to exercise their
equity of redemption to stop foreclosure on mortgaged property and led
the way in making it easier for a lender to recover such property. In a departure
from the common law in property matters as significant as its turn to
partible inheritance, Massachusetts allowed judgment creditors to take real
property not secured by mortgage in satisfaction of private and public debts.
23 Josiah Quincy, Jr., ※A Journal, interspersed with observations and remarks§ [1773],
Massachusetts Historical Society Proceedings, 49 (1915每16), 465每66.
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176 David Thomas Konig
In Massachusetts, the writ of assumpsit suited a culture that saw a bargain
as a bargain and stressed obligation to one*s neighbors. Assumpsit,
in its various forms, appeared in Massachusetts writs as ※case,§ suggesting
a generic simplification and obscuring from historians its more sophisticated
content. It dominated the legal recovery of moneys lent and goods or
services had and received in Massachusetts, and did so to protect lenders.
By contrast, a very different legal culture drove Virginia suitors in another
direction, that of putting limits on the claims of creditors. Instead of the
written notes or contracts basic to assumpsit, it was more common for
Virginia debtors to secure their obligations by giving a bond 每 a sealed
instrument that admitted of no defense other than to deny its validity or
plead performance. Virginia creditors were usually debtors too, and this
system provided a legal mechanism consistent with a political and moral
economy different from that of New England. As creditor-plaintiffs they
rarely put their suits before a jury but preferred to allow the bench to assess
damages, which in the writ of debt (used to recover on bonds) were calculated
more strictly on the value of the undelivered amount and excluded
any special damages related to the non-delivery. By contrast, damages in
assumpsit might take into account the norms of New England, where juries
more commonly heard civil litigation, and as John Adams learned from his
practice, they might allow recovery ※for more or less.§ New York, which
fell under the economic influence of Boston, adopted this preference, but
usually only for relatively small sums; it continued to follow the Dutch
use of sealed obligations when larger sums were owed, thus demonstrating
once more the meeting of North-South regional differences in the Middle
Colonies.
CONCLUSION
It is worth emphasizing the legal precocity of the colonies and the particularities
of their legal forms in order to underscore how deeply the process of
legal change advanced ideological goals and to justify the claim that what
appears to be inexpert rustic degeneracy in the law actually represents a more
sophisticated eclecticism. The great changes in English commercial law at
roughly this same time period are not seen as crude or rustic, though some at
the time might have denounced such innovations as unwarranted: Sir John
Holt*s disapproval of legal innovation being ※invented in Lombard Street§
parallels the process of legal innovation in the courts of distant provinces,
which anticipated changes later adopted in England. The ※Duke*s Laws§
issued by the Duke ofYork (later James II) after the conquest ofNewNetherland,
for example, accepted Dutch rules on the assignability of obligations
well before English courts did.
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Regionalism in Early American Law 177
Ultimately 每 when the newly independent states assembled to define a
national legal system and establish a federal judiciary 每 slavery epitomized
and solidified regionalism in American law. But the vast chasm between
North and South over the law of human chattel was only one dimension
of a larger historical process that drew on many English traditions and
was accelerated by the contingencies of timing at an initial moment of
protean legal innovation, when the pressures of social crisis led English
peoples on both sides of the Atlantic to look to legal institutions for support
and protection. When a moment of expanding market economy later in
the seventeenth century threw together diverse and assertive peoples, a
third such cultural hearth emerged in the mid-Atlantic colonies, combining
many of the existing legal impulses and introducing innovations of its
own. Within a century, regional distinctions had become so entrenched
that even the powerful force of an anglicizing Parliament could not reverse
them. Indeed, that effort ultimately precipitated an outburst of regional
self-assertion and legal self-identification in the newly created American
republic, one that exists to this day.
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6
penality and the colonial project: crime,
punishment, and the regulation of morals
in early america
michael meranze
American criminal law was forged in the crucible of the colonial enterprise.
Part British transplant and part American construction, the criminal law
gave vivid and physical form to the effort to turn the Americas into an
offshoot of Europe. Courtrooms and courthouses, gallows and whipping
posts, jails and prisons all marked the American landscape with the material
imprint of European institutions. In transporting British legal forms
and traditions, colonial authorities aimed to maintain their own claims to
civility on the borderlands of their cultural world while establishing their
authority over natives and settlers. But no simple transfer of legal culture
and practice was possible in the colonial world. Whatever the intentions
of imperial officials or initial settlers, the process of colonization and the
construction of unequal colonial societies produced legal systems that selectively
appropriated and distorted tendencies unfolding in the metropolis
itself.
During the seventeenth century, the crisis of the British state allowed disparate
colonial legal systems and cultures to develop. The highly decentralized
nature of British expansion, combined with the multiplicity of British
legal traditions, led to a pronounced juridical diversity in early American
law. Despite a shared acknowledgment of English sovereignty and the common
law, British colonialism produced not a centralized system of criminal
law but a variety of penal cultures. The religious conflicts that plagued the
seventeenth-century English polity only exacerbated these developments
as the founding of settler colonies during the post-Reformation struggles
over religion and the pursuit of religious utopias charged the criminal law
with particular sacred meanings. Combined with the British suspicion of
political centralization, the lack of effective imperial oversight allowed local
elites to turn the law to their own purposes, while the absence of meaningful
police intensified the importance of publicly imposed corporal penalties.
The fragmentation of the English polity was inscribed on the juridical culture
of British colonial world.
178
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Penality and the Colonial Project 179
During the eighteenth century, the growing power of the imperial state
challenged the relatively autonomous and disparate character of colonial
criminal law. The expansion of penal transportation after 1718 and the
spread of vice-admiralty courts and imperial bureaucracies underlined the
mounting presence of imperial authorities in colonial legal institutions.
Imperial officials displayed an increasing assertiveness in their review of
colonial legislation. The extension of British colonization itself meant that
the reach of British law was extended throughout the North American
seaboard, as colonial desires to mimic British gentility aided the spread
of more complex legal forms, practices, and institutions. Colonial penality
became more of a piece. To be sure, the reality of different colonies and
legal cultures precluded a uniformity of law and practice. But compared
to the seventeenth century, the eighteenth century witnessed an increasing
imperialization of the criminal law throughout the mainland colonies.
Colonists* relationship to metropolitan power, however, was only part of
the story of penal culture and practice; the colonial world and the contests
of colonization played an equal role. Beginning in the seventeenth century,
the criminal justice system became a forum for the adjudication of conflicts
between settlers and Native Americans and a system for the assertion of
colonists* authority. During the same period, the criminal justice system
rapidly became embedded in the regulation and production of colonial labor
systems and labor discipline. Whether enforcing the expansion of bound
labor, or supplementing a father*s power to demand family labor, or reinforcing
the infliction of punishment aboard ship, the criminal law provided
sanction for the labor coercion that made colonial expansion and maritime
integration possible. Nowhere was the relationship between colonial law
and labor organization more striking than in the ways that the criminal
law echoed the spread of racialized chattel slavery in the late seventeenth
and eighteenth centuries. The criminal law not only supported the master*s
right to physical punishment but through the development of dual systems
of courts and dual practices of punishment, it also made material the reality
that there was one law for free people and another for bonds-people.
All these systems 每 imperial and colonial, free and slave 每 were predicated
on the degradation of the body. Whether in the hands of metropolitan or
colonial authorities, violence traversed the criminal law. Early American
criminal justice operated in a series of public forums (the courthouse, the
jail, the whipping post, and the scaffold) to reinforce not only the power of
the law but also the structures of locally dominant authorities. Punishment
combined shame, pain, death, financial penalties, and forms of symbolic
and physical exclusion to assert the authority of law and government. The
repertoire of punishments changed little, though variation would be found
in their deployment, valuation, and contexts. Throughout the colonial era
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180 Michael Meranze
the courts and the places of punishment were open to the community and
spoke in its name.
The revolutionary crisis transformed but did not transcend these colonial
patterns. The imperial reorganization that followed the Seven Years
War included, among many other elements, a program to weaken the reach
of local juries even as the violence that accompanied colonial resistance
ultimately found its place in courtrooms. The result was a rapid politicization
of the penal world on land and sea. During the 1760s and the 1770s
British colonials and imperial officials debated the appropriate forms of
criminal law and punishment, while independence spurred a search for new
※republican§ forms of penality. Paradoxically, the revolutionary upheaval
fused penality and the American relationship to imperial culture even more
tightly together.
The end result was a selective appropriation of colonial practices and
legacies. During the Revolution and into the Early Republic, the diversity of
local practices was not lost, but the larger milieu changed dramatically. Most
obviously, the imperial context disappeared. As a result, criminal justice
became even more the purview of individual states. But at the same time,
critics building on a transatlantic genteel critique of public punishments
overthrew the elite consensus behind publicly inflicted punishments of pain,
shame, and death. The emergence of reformative incarceration, growing
opposition to capital punishment, and efforts to simplify and moderate penal
codes all combined to call into question criminal punishments throughout
the new nation.
Contending penal theories and practices divided the new nation regionally.
In the slave South, despite the emergence of penitentiaries, penality
continued to parallel the colonial world of the British West Indies; in the
North, penal practice identified itself with the bourgeois and religious
reformers of metropolitan England. Equally significant, the different trajectories
of reform, combined with the erosion of northern slavery, meant
that criminal punishments not only divided according to region but also
became a source of division among regions. In new and important ways,
the ideologies and practices of punishment became linked to the dominant
economic forms of the North and the South in the aftermath of revolution.
I. THE IMPERIAL BRITISH CONTEXT
Despite the variety of colonial settings and the vagaries of colonial encounters,
English forms and imperial authorities determined the parameters
of criminal justice in early British America. Although the peoples of the
colonial periphery (Europeans, Africans, and Americans) were disparate,
English standards defined legality and illegality in the colonies. In that
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Penality and the Colonial Project 181
sense at least, criminal justice in the British colonies was one imprint of
the power of Britain*s imperial power itself. Whatever alternate systems
of punishment people brought to the colonies, once incorporated into the
British colonial order, the peoples of America faced penal practices modeled
on English ways. In particular, criminal justice in early America partook of
England*s distinctive emphasis on corporal symbolism. Famously lacking
a ※continental§-style police force, the English relied on the public display
of state violence to assert the supremacy of the law. Their North Atlantic
colonies would follow suit.
Throughout the seventeenth and eighteenth centuries, capital punishment
stood at the heart of the British penal system. The English criminal
code possessed an extremely long and continually increasing list of capital
crimes 每 upward of 200 capital offenses by the eighteenth century. Not only
murder, rape, petty treason, and serious crimes against property could lead
to the ultimate penalty; British lawmakers extended the reach of capital
sanctions in bewilderingly complicated directions. To be sure, many capital
offenses were highly particular, such as offenses against particular forms
of property or even against the property of specific companies. And their
actual deployment was irregular. But the continued expansion of capital
punishment points to an essential fact of British criminal law: the physical
and symbolic center of punishment in Great Britain was the gallows.
Punishment stood at the intersection of political and moral authority in
early modern Britain. Whether at the ,whipping post, the pillory, or the
gallows, state-inflicted physical degradation of the body was a crucial site
for the articulation of authority and for the fusing together of religious
and political symbolism. England remained, however diffusely, a Christian
country. The body under duress drew on powerful Christian symbols and
narratives. As countless Divines reminded their listeners, magistrates were
expected to ※Beareth Not the Sword in Vain.§ Punishments maintained
the social order; indeed they partook of the hand of God. In this world, the
state stood in for the Divine and the Divine stood as justification for the
state; the body itself stood as a crucial representation of the social order.
The condemned body, in particular, figured in a wider political symbolism
that imagined society itself as a great corporeal unity. Its sufferings were
a microcosm of the sufferings the social body underwent through crime.
The distresses of physical punishment thus achieved their great power not
simply by virtue of the universal experience of pain; the body at the scaffold
drew on some of the most powerful symbols of British culture.
Nonetheless, there were certain countervailing tendencies. The widespread
availability of benefit of clergy and the frequent recourse to ※pious
perjury§ (that is, the jury practice of devaluing stolen property so that theft
did not reach the threshold of a felony) restrained the actual use of capital
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182 Michael Meranze
punishments. On the recommendations of the judges and prosecutors, the
Crown frequently granted pardons. Throughout the eighteenth century 每
and with increasing frequency after mid-century 每 officials and commentators
expressed deep concern over the efficacy of capital punishment. Indeed,
by the 1770s and 1780s, the extent, if not the legitimacy, of the use of
capital punishment was under serious question. Even William Blackstone
(hardly the legal radical) expressed his own doubts over the reach of capital
punishments:
For, though the end of punishment is to deter men from offending, it never can
follow from thence, that it is lawful to deter them at any rate and by any means;
since there may be unlawful methods of enforcing obedience even to the justest
laws. Every humane legislator will be therefore extremely cautious of establishing
laws that inflict the penalty of death, especially for slight offences, or such as are
merely positive. . . . Where the evil to be prevented is not adequate to the violence
of the preventive, a sovereign that thinks seriously can never justify such a law to
the dictates of conscience and humanity.1
Blackstone discreetly left it unsaid how far the sovereigns of England had
met his test.
Most importantly for the colonial situation, from the early eighteenth
century onward the penalty of transportation assumed greater and greater
importance. The Transportation Act of 1718 expanded the use of penal
transportation to the colonies while placing transportation firmly under
the control of the government. Transportation allowed English authorities
to lessen their reliance on secondary punishments, such as whipping,
without being forced into dramatically expanding their infliction of capital
sanctions. Despite the profusion of new capital statutes, in the years
after the passage of the Transportation Act, capital punishment was most
frequently inflicted for long-standing offenses (murder, burglary, robbery),
rather than for the new more expanded list of crimes against particular forms
of property. From the English vantage point transportation both rationalized
and intensified penal powers while avoiding too great a reliance on
sanguinary penalties. From the vantage point of the colonies, as we shall
see, transportation looked very different.
Because the colonies were embedded within the empire, the colonial
criminal justice system was never autonomous of imperial forces. Most obvious
were the cases where royal officials overturned colonial efforts to reshape
the criminal laws. Of equal significance was the imperial regulation of trade,
which produced not only customs legislation and customs enforcement but
1William Blackstone, Commentaries on the Laws of England, ed. Thomas A. Green (Chicago,
1979), 4: 10每11.
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Penality and the Colonial Project 183
also the whole system of vice-admiralty courts. Perhaps most important, the
simple fact of empire systematically affected the social contexts of colonial
justice. Colonial societies did not exist in isolation and could not ignore the
geopolitical realities of intermittent warfare or the demographic realities of
constant immigration. The cultural and social diversity of colonial societies
existed because of empire, not despite it. Though local structures and interests
guided the day-to-day operations of criminal justice in the colonies, the
terrain on which the criminal law operated could never be fully separated
from its imperial context.
II. CRIMINAL LAW, COLONIAL VIOLENCE
If the imperial context shaped the criminal law, the law itself played an
ambiguous role in the process of colonization. Throughout North America
the English sought to subject the native populations to English legal forms
and institutions. Not surprisingly Indians, with their own very different
senses of justice, did not always share the colonists* enthusiasm for English
law. Whereas the English assumed that criminal justice was a state activity
to determine and punish individual responsibility, Native Americans
placed a far greater emphasis on community-based reconciliation and recompense.
English notions of responsibility could conflict with native notions of
responsibility; what determined justice in those instances was the balance of
forces. As a result, the question of jurisdiction and of appropriate practice
loomed large in the penal relationship between colonists and natives. In
its very existence the law became a terrain of conflict between settlers and
natives. To be sure, Native Americans did actively participate in colonial
legal proceedings, often with great success. But of greater importance than
individual cases or punishments was the larger colonial setting of legal
practice and culture. And in that larger setting the colonists eventually
determined the rules.
In the earliest years of settlement the reach of English law and the capacity
of Englishmen to subject natives to their punishments and disciplines were
limited. As they had demonstrated in Ireland, English elites were quite
happy to subject dependent, or legally foreign, populations to practices
unsuited for a ※freeborn Englishmen.§ Within the limits posed by their
relative military and political weakness, Virginia authorities, for example,
were willing, when able, to subject Native Americans to coercive legal punishments.
In both Massachusetts and Plymouth, colonial authorities aimed
to ensure that natives would be brought before English courts and punished
according to English law. Their success was mixed. Given the power
of neighboring native groups, the English were not always able to ensure
the delivery of natives they suspected of criminal offenses. Moreover, the
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184 Michael Meranze
English authorities recognized the practical necessity of punishing colonists
accused of crimes against Indians. But even in the earliest years colonists
were able to make greater demands on the natives than the natives made
on colonists. And the inequality of legal cultures would only grow.
Colonial authorities had to balance their desire to control the native populations
with their equally strong desire not to provoke native violence. The
result was to create a formally equal if contextually unequal criminal justice
system. In New England, at least prior to King Philip*sWar, treatment of
indigenous defendants was largely the same as treatment of colonial defendants.
Punishments were not systematically different, the range of crimes
that brought natives to the bar was for the most part similar, and both
colonists and natives were subject to the same procedures. But the courts
and juries rarely included native members, and the larger tendency of the
legal system was to impose English institutions, laws, and regulations on
the native populations. In this trajectory the criminal law replicated and
reinforced the inequalities of the colonial relationship.
Coercive violence against Native Americans was recurrent in the seventeenth
century. However, most violence took place in venues outside the
criminal law. It does not appear, in other words, that the criminal law was
a central tool for colonizing the native populations. To suggest that the
criminal law played a marginal role is not to deny the everyday violence of
the colonization process nor to ignore the incidents when Native Americans
were subject to the punitive sanctions of the law. Nor is it to deny the manifold
ways that the rhetoric of the law and its claims could be mobilized
to cast the natives as savage. It is to suggest merely that relations between
natives and settlers in the seventeenth century took place largely outside of
the criminal courts and hence that the business of the criminal courts was
not significantly concerned with Native Americans.
Still, colonists did deploy the rhetoric of the law and social discipline
against the indigenous populations. Indeed, the spread of colonial power
meant that over time the law did become a more important tool for colonizing
the peoples of early America. In New England, to give but one
example, colonial authorities in the latter part of the seventeenth century
increasingly passed and enforced laws that regulated native access to alcohol
and guns. And in the years following King Philip*sWar colonists took
active steps to regulate and confine Indian populations. The increased control
following King Philip*s War was, in fact, the most dramatic example
of the changing relationship between law and power. In the years following
the war the Massachusetts government restructured Indian governance, created
means for intensified oversight of the native population, and took steps
toward limiting and defining Indian space. These actions were only the most
concentrated moment of a much larger process: the ongoing reduction of
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Penality and the Colonial Project 185
autonomy for those native groups closest to the English. From that point on,
everywhere that colonists and natives met the criminal law became a source
of conflict as well as conflict resolution. By the eighteenth century, along
the seaboard at least, those conflicts had been settled in favor of English law
and English punishments. Natives and newcomers might be tried in the
same way, but more and more that way was English.
III. THE PUBLICITY OF PUNISHMENT IN COLONIAL
BRITISH AMERICA
For the most part, Britain*s American colonists did not engage in any
radical experimentation in the criminal punishments they imposed on the
condemned. As members of the empire, they quite faithfully reproduced
the repertoire of punishments in place in Britain. The number of capital
offenses was not as great in the colonies as in the mother country, but
the gallows anchored criminal justice in America as it did in Great Britain.
From the earliest settlements inVirginia, Plymouth, and Massachusetts Bay,
through the Restoration colonies from Pennsylvania to the Carolinas, and
on to the utopian experiment in Georgia, capital punishment was a constant
presence in social life. With the brief exception of early New England and
Pennsylvania, hanging was imposed for crimes against property as well
as persons. To be sure, in quantitative terms, the death penalty was not
deployed on the same scale as in England. It was possible for counties, and
even colonies, to go several years without witnessing an execution. Colonists
imposed secondary corporal punishment and fines far more frequently than
they imposed death. But as a threat the death penalty hung over the penal
practices of the British in America as it hung over England itself. It was,
after all, the point where power over life and death, the intersection of
the state and the Divine, assumed its sharpest relief. Not simply as a legal
category, then, but as social reality, the death penalty took up a settled
position in the landscape of colonial British America.
Throughout the British colonies criminal punishments operated in a fundamentally
public manner. Not only was justice imposed in the name of the
public, it took place before the public and through the medium of denizens
of the district. Courts were primarily situated in local communities, and
their proceedings were open to the local population. Sentences were, for the
most part, handed down by local notables and juries. For the free inhabitants
of the colonies, criminal justice took place in public venues modeled
on England. Although justices of the peace could hand down summary
judgments for minor offenses, most criminal penalties against the body
were inflicted under the authority of courts of Quarter Sessions or their
equivalent. Capital cases took place in even more rarified surroundings.
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186 Michael Meranze
The leading magistrates of the colony would oversee the trying of capital
offenses in courtrooms marked by special ritual and pomp.
To be sure, these trials were often ramshackle affairs. Courts, especially
in the early years of the colonies, frequently sat in commercial places (taverns,
inns, etc.). Justice was both swift and decisive. Many sessions handled
multiple cases in a day, trial testimony was brief, and the defendant stood
at a grave disadvantage if he or she lacked support in the community.
Procedure, though modeled on the English forms, was simplified. This situation
meant that, like punishment itself, the process of criminal justice was
eminently public. The community 每 through the jury and the audience 每
was implicated in the decisions of the courts. It may have been small comfort
to the convicted, but the colonial court system prided itself on its openness
to scrutiny. And there is little evidence that the legitimacy of the law was
ever in doubt among the colonists.
As in England, hanging was an important communal practice. On execution
day, crowds numbering in the thousands, some traveling hundreds
of miles, could converge on the hanging scene. Authorities sought to manage
these events with great care, careful to provide a detailed script in
the hope of controlling the meaning and message of the hanging. In New
England, especially, the execution itself was a highly ritualized event. A
parade from the jail to the place of execution would wind its way through
the town or city; sermons 每 some by the leading ministers of the area 每
would precede and follow the hangings; the condemned often provided
last words and confessions; and prayers would be said for his or her soul.
Reports of the deaths, even the briefest of comments, spread outward 每 by
word of mouth, letter, newspaper, and, again especially in New England, by
pamphlet.
The authorities aimed to ensure the greatest solemnity and dignity to the
proceedings. On hanging day, after all, the state was taking up the sword and
destroying the gift of life. In their justifications, ministers recognized the
extremity of the law*s actions. Nothing less than the good of all sanctioned
the resort to force. Describing the purposes of an execution of a murderer
in 1754, Charles Chauncy insisted: ※And this is the Design of this Day*s
Execution. It is intended for the common Good, by exhibiting an Example of
public Vengeance: Such an one as is fitted to curb the Lusts of Men, and prevent
their breaking forth in murderous Attempts upon the Life of their Neighbour.
We should view it in his Light and be deterred from that Crime which will
expose us to be cut off by the Hand of civil Justice.§2 None, ministers and
2 Charles Chauncy, The Horrid Nature, and Enormous Guilt of Murder. A Sermon Preached at
the Thursday Lecture in Boston, November 19th, 1754, The Day of the Execution of William
Wieer, for the Murder of William Chism. (Boston, 1754), 22.
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Penality and the Colonial Project 187
colonial officials insisted, should mistake the absolutely necessary nature of
the state*s violence.
Throughout the colonial period, the legitimacy of these hanging days
went largely unchallenged. Because people of different classes and races,
men, and women attended, leading ministers (like Chauncy or, earlier,
Increase and Cotton Mather) eagerly participated in the ceremony, seeing
it 每 not without reason 每 as their best opportunity to speak to a mass
of people. In 1693, for example, Cotton Mather noted in his diary that
※by a very strange Providence§ he was called to speak before an execution.
※I did then with the special Assistance of Heaven, make and preach a
Sermon. . . . Whereat one of the greatest Assemblies, ever known in these
parts of theWorld, was come together.§3 Indeed, many attended executions
quite matter-of-factly. Samuel Sewall, for one, repetitively noted executions
(some of which he attended) with scarce an emotion. But that they were
powerful rituals cannot be denied. Sewall may have kept his own emotions
concealed, but others did not. Commenting on the execution of seven pirates
in Boston Harbor on June 29, 1704, Sewall noted, ※When the Scaffold was
let sink, there was such a screech of theWomen that my wife heard it sitting
in our Entry next to the Orchard, and was much surprised at it. . . . Our house
is a full mile from the place.§4
Hanging was not the most painful death authorities employed. Some
of the condemned were put to death by burning. Burning was apparently
limited to crimes that the authorities considered outright attacks on the
social order: witchcraft, wives committing petit treason, and slaves involved
in (alleged) revolt. Nor did penalties end with death. Some criminals were
hung in chains, others were dissected. Each additional penalty was designed
to increase punishment*s level of terror. Each powerfully reveals the extent
to which the body was caught up in a public economy of punishment.
A wide range of public punishments symbolically surrounded the gallows.
Throughout early America both capital defendants and state authorities
mobilized a complex system of discretion to mitigate capital sentences.
Pardons and reprieves were given frequently. Interestingly, they
were frequently dramatized by the calculated display of last-minute mercy.
Many criminals did not learn of their reprieve until they had already been
taken to the gallows, some having already had the noose put around their
necks (some who knew they had been pardoned were sentenced to stand on
the gallows with the noose around their neck). In addition, the colonists
3 Diary of Cotton Mather, ed. Worthington Chauncey Ford (New York, 1957 [1911]), 1:
165.
4 Samuel Sewall, The Diary of Samuel Sewall, 1674每1708, ed. M. Halsey Thomas (New
York, 1973), 1: 509.
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188 Michael Meranze
also employed a varied repertoire of secondary corporal penalties. Colonial
authorities aimed to inflict pain on the bodies and humiliation on the souls
of criminal offenders. They inflicted whippings (sometimes at a whipping
post and sometimes at a cart*s tail), imposed time in the pillory (with or
without additional duress from onlookers), branded, bored holes in tongues,
defaced, and cropped ears. If the death penalty most dramatically imposed
death, the more common public punishments wracked the bodies of offenders
and did so with the intent of display. Whippings, after all, were not
simply painful; they were public. In 1736, for example, the Philadelphia
authorities made certain that one woman convicted of picking pockets during
a market day was ※exposed during the Market upon the Balcony of
the Court-House with her Face towards the People, that every Body might
know her; after which she received a Whipping.§5 Some sense of the disgrace
a whipping entailed can be seen in a Dutch father*s reaction to his son*s
sentence of a whipping for fornication in 1662. In his request to the New
Haven magistrates to change the sentence to a fine he explained that the
Dutch thought that ※to be corporally punished was such an infamy . . . that
they looked upon such noe better than a dog & not fit for Commerce with
them & soe his sonne would be undone Thereby.§6 Humiliation and pain
were the coin of this particular penal realm.
As in England then, public punishments operated on manifold levels.
Clearly they imposed both pain and death. But they also turned the body
into a symbol: of the power of the law, of God*s love and anger, of the severity
and mercy of the authorities. The body of the condemned was the meeting
point for both sacred and secular authority, and reactions to it moved from
the grimly satisfied to the indifferent through the mournfully sympathetic
to the emotionally overwhelmed. Despite their relative infrequency, public
punishments were central rituals to colonial authority and to the colonial
imagination. In the NewWorld setting, English forms of punishment may
have been especially important. Through their violence to the body of the
condemned, the authorities sought to reaffirm the community*s commitments
to the demands of God and of civilization.
Paradoxically, the intermittent and peripatetic nature of punishments
inscribed criminal justice more widely on the social landscape. Lacking
distinct and isolated penal institutions, early Americans witnessed punishments
and judicial proceedings in a wide variety of venues. Spaces normally
taken up by trade or recreation could be seized temporarily for the purpose
of criminal justice. If the law lacked the majesty that it possessed in the
5 Pennsylvania Gazette, October 21每28, 1736.
6 Franklin B. Dexter, ed., New Haven Town Records, 1649每1684 (New Haven, 1917每1919),
2: 12.
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Penality and the Colonial Project 189
metropolitan countries, its very diffuseness signified that the law was remaking
the new world in its own interest. The distinction between everyday
and official spaces, between the secular and the sacred was blurred thereby.
The criminal law and its violence could appear in unexpected places.
IV. THE SEVENTEENTH CENTURY: REGION, RELIGION,
AND LABOR
The trajectories of criminal law in the seventeenth century established the
diversity of penal practices that would remain present in mainland British
North America through the eighteenth century. The fiscal limits of the
English state meant that control over overseas organization rapidly devolved
into the hands of colonial elites. And the lack of effective church oversight in
post-Reformation England meant that unlike the Spanish case, the Church
of England was unable to intervene powerfully into colonial affairs. As a
result, the distinctive local influences of region, religion, and labor systems
shaped colonial reorganizations of English practice. In the seventeenth century,
both New England and the Chesapeake shared a common range of
punishments and legal procedures. But the effects of local milieu inflected
them in particular 每 and differently coercive 每 directions. Religion in New
England and bound labor in the Chesapeake helped organize the criminal
law as they did so many other aspects of the colonial project.
The Chesapeake Colonies
In the Chesapeake colonies, planter demands for labor powerfully shaped
the development of the system of punishment and moral regulation. Drawing
selectively on the English experience in Ireland as well as the evolution
of systems of labor discipline, Virginians deployed the public punishments
common to the Anglophone world in the interest of the planters* pursuit of
wealth. The rapid development of a tobacco economy and the concomitant
turn to servitude meant that Virginia*s criminal law became significantly
enmeshed in sustaining the power of masters. The instability of the ruling
elite meant that the criminal law in both Maryland and Virginia was
recurrently deployed to consolidate fragile authority. From its earliest years,
criminal justice in Virginia was marked by a highly authoritarian streak.
Maryland appears to have mimicked its neighbor. That the law was there
to maintain the majesty of authority was never in doubt.
In large part, the Chesapeake colonies simply circulated the common
penal coin of seventeenth-century England. Early on Virginians adopted
the common forms of investigation and prosecution (indictment, arrest,
coroner*s courts, etc.), institutionalized both grand juries and magisterial
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190 Michael Meranze
investigations, and established a simplified system of courts (at the county
and colony level) that assumed the myriad functions handled by the diverse
judicial institutions of the mother country. The authorities certainly hanged
offenders 每 especially in the colonies* early years 每 although it is impossible
to tell with what frequency. The whip and the fine were frequent tools of
authority. Most trials took place summarily or before county justices, and
they took place swiftly.
Crime in the seventeenth century appears to have been limited. Records
document more prosecutions for slander (suggesting the insecurity of
authority and instability of society) than for theft. One case can indicate
the dynamic involved in the protection of authority. One woman in Lower
Norfolk County had been convicted of slandering a neighbor. Condemned
to beg forgiveness in her church, she refused; she further refused to appear
before the court itself to answer for her refusal. The Justices responded as
follows:
The sheriff shall take her to the house of a commissioner and there she shall receive
twenty lashes; she is then to be taken to church the next Sabbath to make confession
according to the former order of the court. If she refuses, she is to be taken to a
commissioner and to be given thirty lashes, and again given opportunity to do
penance in church. If she still refuses to obey the order of the court, she is then to
receive fifty lashes. If she continues in her contempt, she is to receive fifty lashes,
and thereafter fifty every Monday until she performs her penance.7
The support of authority was also marked in Maryland.
But within this general commonality, Chesapeake authorities fashioned
their criminal laws in particular ways. Guided by English practice in the
subjugation of Ireland, Virginia*s early leaders had quickly turned to military
models for governing the colony: the colony*s formative years saw
the routine deployment 每 or at least the threat 每 of hanging and beating.
From the first charter onward, non-capital defendants were tried summarily
and with little formality. Under The Lawes and Orders, Divine, Morall,
and Martiall, commonly known as Dale*s Laws, the colony*s legal regime
took on a visibly authoritarian tinge. Although the overt system of martial
law expired in 1619, its basic emphasis on the coercive control of labor
shaped Virginia*s history throughout the seventeenth century. To be sure,
throughout the seventeenth century, Virginia*s lawmakers made greater
and greater use of common law practices. But it must be remembered that
common law rights did not necessarily translate into actual practice for all
subjects. In the case of Virginia two factors came into play: the first was the
7 ※Lower Norfolk County Records, 1637每1643,§ quoted in Oliver Chitwood, Justice in
Colonial Virginia (Baltimore, 1905), 89每90.
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colonial setting, the second the demographic fact of a large servant population.
These two issues defined the distinctiveness of the criminal law in
the seventeenth-century Chesapeake.
The criminal law was crucially involved in cases involving labor discipline
and the status of laborers. Having failed to find a sufficient labor
supply among the native populations, Chesapeake planters found and held
indentured servants. It is here, indeed, that one can detect the beginnings
of a characteristic Chesapeake structure of punishment and moral regulation.
From the early years of the seventeenth century, courts and officials
deployed the criminal law either to debase freemen to the status of servants
or to coerce servants into additional labor time. Although the number of
criminal trials through the 1620s appears small, courts began to intervene
in questions arising from fornication, Sabbath-breaking, and petty theft,
among others. Authorities adopted the conventional elite English suspicion
of young laborers and, in a situation where young unattached laborers were
the predominant demographic group, magnified it. Given the thin state of
institutional development in seventeenth-century Virginia, the law and its
constraints assumed a large role in supporting planter discipline. To be sure,
labor discipline remained primarily a task of masters. Still, the sanctions
of the criminal law provided a powerful backdrop to the efforts of individual
planters, and the law ensured that servants would not find an easy
path to freedom. The criminal law in the Chesapeake, then, was powerfully
implicated in master-servant relations and in upholding the structures of
the labor system.
The dispersed population and an extremely hierarchical society combined
to devolve great power into the hands of local justices of the peace. Although
the General Court in Jamestown maintained control over felony prosecutions
(and felony defendants were, for most of the seventeenth century,
compelled to travel to Jamestown), local justices were sometimes empowered
to act as special courts of Oyer and Terminer and were always expected
to conduct preliminary inquiries into felonies and determine who should be
sent to the General Court. Combined with their power over petty offenses
and given the relative lack of detailed rules for adjudication (justices drew
on practical manuals more than explicit rules), the local justices were crucial
figures in the process of criminal justice. Given their ties to the planter class,
they were equally crucial figures in the maintenance of local authority.
The New England Colonies
Those who governed the seventeenth-century New England colonies fused
religion with the law by building on the Tudor and Stuart intensification
of the powers of magistrates while infusing that structure with the Puritan
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192 Michael Meranze
critique of England*s corruption. On the one hand, Massachusetts Bay and
its offshoots constructed dual systems for the enforcement of law and morals:
both church and state had important responsibilities to ferret out and punish
sin and crime. On the other, they transformed their criminal justice systems
in accord with their reading of biblical precedents: New Englanders
significantly modified dominant English practice in the areas of evidence
and statutory definitions of crimes.
The direct influence of religious doctrine on legal practice would not
survive the seventeenth century. Nevertheless the importance of religion
was unmistakable in the ways that the New England colonies dealt with
crime, immorality, and transgression in their early decades. New England
churches practiced a detailed surveillance over the lives of their members and
regulated their morality through chastisement and excommunication. In
New Haven the mechanisms of Puritan surveillance were especially strong.
Under the leadership of Theophilus Eaton, New Haven authorities imposed
a highly personalized and religious form of legal authority. Due partly to
its small size and partly to its powerful patriarchal magistracy, New Haven
produced a society remarkably free from violence. In Massachusetts, matters
were more complicated. Early settlers may have hoped to create God*s kingdom,
but as the gradual expansion of the criminal code demonstrates, any
expectation on the part of the colony*s founders that they would govern an
immaculately God-fearing and law-abiding populace diminished rapidly.
Throughout the century, both churches and courts remained deeply
involved in the regulation of morals and crime. From violations of sexual
propriety to crimes against persons and property, the importance of
religion intersected with the law in a variety of crucial ways. Under normal
circumstances, a parallel system of moral regulation existed: churches
would probe into the moral behavior of their congregants, whereas magistrates
would pursue and discipline violators of the colony*s legal codes. But
at times, as in the Antinomian crisis of the 1630s, the struggles with Quakers
in the 1660s, or the witchcraft trials throughout the century, enforcing
law on behalf of both the Divine and the human could prove explosive.
Under these circumstances, the Puritan commitment to dual regulation
meant that theological and religious differences intersected with political
structures in ways that threatened the existence of the colony itself. In the
aftermath of the revocation of the Massachusetts charter and the legal and
cultural fallout of the witchcraft trials of the 1690s, criminal justice and
religious orthodoxy would take separate paths. But that the criminal justice
system of Massachusetts Bay should remain devoted to the policing of God*s
way was never in doubt.
Connecticut steered a course closer to Massachusetts than to New Haven.
In fact, when the New Haven colony was absorbed into its larger neighbor
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the early emphasis on magisterial piety faded away. But in whatever variation,
the Puritan emphasis on intrusive surveillance and magisterial inquisition
was strong 每 as was the necessity for that surveillance and inquisition
to be practiced.
Through their intense emphasis on the practice of conscience, the
churches helped construct a culture of communal inquiry into guilt and
accustomed early New Englanders to a culture of confession. As a result,
New England authorities expected defendants to admit guilt without argument.
In seventeenth-century New Haven, for example, the accused were
subject to a series of intense interrogations by the colony*s leading figures
both before and during trial. The search for confession was quite successful.
In the twenty years of the New Haven colony, over half of all defendants
confessed to their crimes; indeed in the period from 1645每58 more than
80 percent of defendants confessed. New Haven was extreme in its success,
but its emphasis on confession was not unique.
TheNewEngland colonies tailored their codes in accord with their understanding
of Divine ordinance. In early Massachusetts, authorities transposed
biblical penalties into the legal system. Adultery, worshiping false gods,
and blasphemy among other offenses were capital crimes in the early years
of the colony. But at the same time, the colony broke from the English tendency
to impose capital punishment for crimes against property (initially
no crimes against property were capital). In its Body of Liberties (1641),
the colony limited itself to twelve capital offenses, each with appropriate
biblical justification. As the seventeenth century progressed, however, the
colony*s code moved more in alignment with the English; by the latter part
of the century the list had grown to at least twenty-five capital offenses. Not
only did they include serious crimes against the person (rape, murder) but
also an expanding list of crimes against property. Nor were capital sanctions
the only tools at the hands of the state. The New England colonies could,
and did, employ a wide range of other penalties, including whipping, pillorying,
fining, branding, marking, boring the tongue, and banishment.
The statutory history of those colonies that split off from Massachusetts
Bay largely repeated the history of the Puritan Commonwealth.
If New Englanders insisted that crime and sin be dealt with publicly,
that did not mean they insisted they be dealt with by juries. Throughout
much of the seventeenth century, jury trials in non-capital cases were quite
few in number. In New Haven, juries were effectively abolished; in Massachusetts
and Connecticut their role was severely circumscribed. Only in
Rhode Island did trial by jury in lesser criminal cases take a firm hold.
Most criminal cases (short of capital crimes) took place either summarily or
before magistrates in court. Guilt needed to be established in public, but
that did not mean that it had to be established by the public. Although
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these trends (outside of New Haven at least) were never unchallenged, in
the orthodox colonies of New England magistrates retained a firm control
over the mechanisms of criminal punishment and social discipline. This
control was largely in keeping with the growing English emphasis on summary
judgment, but the Puritan emphasis on a patriarchal magistracy fused
legal practice with the larger structure of authority in a particularly powerful
way. Indeed, the magistrates had such authority in the early years of
Massachusetts Bay that the question of magisterial discretion in criminal
punishments was an ongoing 每 and also heated 每 issue. Although the gradual
expansion of the written law may have curbed the autonomy of the
magistrates somewhat, the continued importance of summary judgments
demonstrated that their authority remained powerfully established.
The combination of an intensely confessional culture and a powerful and
discretionary magistracy produced a highly personalistic system of punishment.
On the one hand, the Puritan commitment to original sin led to the
assumption that everyone needed to be disciplined. This sense of shared
depravity precluded any simple sense of divisions between law-breaking
and law-abiding individuals. But at the same time, the discretion of the
magistrates meant that punishments were often geared toward the individual.
How much guilt the accused had acknowledged, whether he or she was
a first-offender, how the accused fit into the community 每 all affected sentencing
and punishment. This system was perhaps most powerfully enacted
in Theophilus Eaton*s New Haven. But as the struggles over magisterial discretion
in early Massachusetts suggest, it was not limited to that short-lived
colony. And in early Massachusetts at least, social status affected punishment
profoundly. Gentlemen were rarely subject to corporal punishment,
and fines were often calibrated to an individual*s status. These tendencies
may have been an acknowledgment of the realities of the power of gentlemen
or the demands of equity. But they also strengthened the hand of the
magistracy.
The colonial relationship also shaped the exercise of discretion. Massachusetts
magistrates were concerned to shore up not only their own but
all forms of local authority. Indeed, one reason that Massachusetts magistrates
resisted written laws was their fear that having such laws would
intensify British scrutiny of colonial practices. Given the centrality to the
local social order of patriarchal households seeking economic competency,
it is not surprising to find that the magistrates were careful to support
the prerogative authority of age and fatherhood. But they wanted to do
so without risking a loss of labor. In the early years of Massachusetts Bay,
imposed penalties frequently departed from declared sentences. It seems
clear that the magistrates modified both corporal and financial penalties in
acknowledgment of the colonial shortage of labor and money.
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Sexuality marked a further legal intersection between religious scruple
and colonial labor systems. Fornication, rape, and adultery were all punished
severely throughout the New England colonies (rape often with capital punishment,
the lesser offenses with some combination of whipping, fine, and
admonition). Fornication especially marked a point of intense contestation.
The seriousness with which authorities dealt with fornication bespoke not
a shared cultural attitude but rather the extremely diverse practices and
attitudes of the colonists (both Puritan and otherwise). Indeed, it was in
the realm of sexuality (and in the case of fishing towns the issue of drink),
that the reality of criminal justice as an argument appeared most regularly.
The sanctions of the law represented one side in an ongoing, and perpetually
unresolved, cultural conflict.
One striking component of criminal justice in seventeenth-century New
England was its relative openness to women. In this regard, New Haven
led the way. During this colony*s years of independence, women frequently
found their way to its courts to register criminal complaints. The New
Haven authorities responded to these accusations and punished men for
sexual assault rigorously and severely. By the same token New Haven*s
leaders were intolerant of fornication. But here the interesting point was
that men were punished more severely than women. For both crimes, the
whipping post was the favored penalty. But ifNewHaven was extreme it was
not alone. The commitment of Puritan authorities to suppress transgressions
of sexual codes combined with the Puritan commitment to overcoming the
double standard in sexual matters meant that women*s words were taken
seriously and men*s sins were punished openly. Still, even in this realm
the power of the patriarch was foremost. Adultery after all was defined by
illicit sexuality on the part of married women. Even rape appears to have
concerned Puritan magistrates most when it involved wives. In both cases,
although the crime was illicit or coercive sexual behavior, an important
issue seems to have been the damage done to the husband*s rights.
In the seventeenth century, then, the North American situation made
possible a selective intensification and adaptation of the practices of English
criminal law in light of specific colonial projects. Seventeenth-century colonial
leaders drew on the Tudor intensification of the power of justices of the
peace to further particular religious and labor systems. In New England,
religious critiques of church courts and hierarchies meant that the criminal
law was separate from religious discipline, while the importance of fathers
in the family, economy, and society meant that the law reinforced the patriarchal
power of Puritan gentry. In the Chesapeake, the widespread early
modern concern with ※masterless men§ reinforced the capacity of Chesapeake
planters to deploy the law in the interests of labor discipline. In both
areas, colonial efforts to regulate sexuality in the interests of production
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196 Michael Meranze
and property placed the regulation of desire at the center of court practices.
The primacy of the colonial situation was, in turn, a manifestation of both
the diffuse nature of English jurisdictions and the relative weakness of the
Crown to assure uniformity in colonial practice.
V. IMPERIALIZATION: GENTILITY, COMMERCE, AND SLAVERY
The changing structures of the empire and the changing system of criminal
law mirrored each other during the eighteenth century. If religious
utopianism and coercive labor relations helped shape the meanings of
seventeenth-century criminal law, the eighteenth-century law manifested
the values of gentility, property, and commerce. Whether in the increasingly
secular culture of New England, the increasingly civil culture of the
Chesapeake, or the manifestly bourgeois cultures of the middle colonies,
more elaborate legal forms intersected with the repertoire of public punishments
to create a more genteel penal realm. Equally important, the
expansion and consolidation of systems of slavery heightened the everyday
presence of force in colonial societies while transmuting the notion of dual
legal systems in a new direction. At the same time, an increasingly powerful
British state extended the reach of its criminal law through transportation
and the expansion of the imperial bureaucracy. The diversity and localism
that marked the seventeenth-century colonial project did not disappear,
but it became submerged within an increasingly uniform imperial world
of culture, force, and property.
From one perspective, little changed in practices of punishment during
the eighteenth century. Courts continued to impose the same range of
financial, shaming, corporal, and capital penalties. Fines and whippings
remained the most frequently imposed penalties, although, not surprisingly,
the numbers of hangings increased. As in the seventeenth century the vast
majority of convicts were men.
As new colonies were established and consolidated, the English criminal
law expanded with them. Whereas the reach of the law in the seventeenth
century was as intermittent as English colonial holdings, by the eighteenth
century English legal forms and practices held sway from Maine to Georgia.
Throughout the colonies quarterly courts of record were held; sheriffs, coroners,
and justices of the peace identified criminals and criminal activities;
printers distributed English legal forms and writs; and appellate courts met
regularly. As each colony matured so did the hierarchy of courts as legal
officials mimicked the mother country. Closer connections with Britain also
meant expansion of capital codes. Pennsylvania may have been the extreme
case. Having begun with a single capital offense (murder) in the late seventeenth
century, eighteenth-century legislators regularly added to a basic
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list of nearly twenty offenses. But if extreme the Pennsylvania story was not
unique. Throughout the colonies the list of capital offenses grew across the
late colonial period as the laws of England made their presence felt in the
colonies.
Finally, across the century courts and magistrates remained focused on
offenses against property and persons. Though nothing approaching a complete
accounting of prosecutions in the eighteenth-century colonies exists,
certain general propositions seem clear. For one, although the numbers
of offenses varied widely in time and place, minor crimes against persons
and property were ongoing issues throughout eighteenth-century British
North America. In New York, to name only one example, the most prevalent
problems facing the courts were crimes of violence and crimes against
public order. Pennsylvania had a rate of personal violence that exceeded
that of England. So did the southern colonies. Crimes against property
were not, to be sure, on the scale of London, but colonial crime certainly
was comparable to the rest of England. New England was the exception
to this overall situation. New Englanders sustained a remarkably low level
of crimes against persons and property. The same could not be said of the
range of colonies south of the old Puritan enclaves.
Still, there were also departures from the seventeenth-century situation.
For example, the colonial legal regimes and the English legal system were
becoming more interconnected. From the earliest days of colonization,
English judges and ministers had intervened in the legislative and judicial
processes of the colonies. Beginning in 1718, h,owever, the English
government made the colonies an actual appendage of British justice. From
that point on, the transportation of convicts from the British Isles to the
American colonies was systematic and continuous. Over 50,000 convicts
were transported between 1718 and the Revolution, most to Maryland and
Virginia. Whether or not colonial fears that Britain (mostly England but
Scotland and Ireland as well) was simply dumping its criminal problems
on the colonies were borne out in practice, transportation did mean that
British criminal justice directly impinged on colonial society. The spread
of vice-admiralty courts through the eighteenth century, although of less
importance to colonial society than transportation, was another example
of increased imperial intrusion into colonial justice and colonial society.
The seventeenth-century colonial legal systems had developed in relative
autonomy. The same could not be said of those in the eighteenth century.
Even within colonial criminal justice there were changes in context and
emphasis. For one thing, New Englanders* desire that the criminal law
manifest a sacred drama of sin and its punishment declined. The famous
epidemic of executions at Salem during the 1690s proved to be the last
systematic deployment of the penal law to uproot witchcraft. In the longer
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198 Michael Meranze
term, the effort to control morals offenses through the criminal law moved
from center stage of the penal theater. It was not that in the eighteenth
century courts ceased to prosecute and punish individuals for adultery, fornication,
prostitution, and like offenses. In quantitative terms violations
of moral regulations consistently took up a significant amount of the time
of county courts and justices of the peace in all of the eighteenth-century
colonies. In Massachusetts, to name only one, fornication predominated
among prosecutions until the Revolution itself. But across the colonies
morals offenses no longer stood at the center of penal concerns. In Connecticut,
men were rarely prosecuted for fornication by the middle of the
eighteenth-century. Women, it is true, were still brought before the magistrates
and their names publicized, but the idea that the courts enacted the
public reaffirmation of a common ethical condemnation of fornication had
passed.
A related transformation occurred concerning sexual assault in New England.
Rape and other sexual assaults continued to be punished severely across
the century, but it became increasingly difficult to gain convictions for
those crimes. Whereas prosecutions for rape were almost always successful
in seventeenth-century Connecticut, by the eighteenth century convictions
were limited to Indians, slaves, foreigners, or strangers. To be sure, in what
Cornelia Dayton terms the ※eighteenth-century double standard,§ women
continued to be held accountable for their sexual transgressions. But, as
regards sexual assault and fornication, the law*s desire to control the sexuality
of men had diminished. The control of sexual behavior had been central
to the symbolic economy of the seventeenth-century New England court
system, and the court system had been central to the regulation of sexual
morals in seventeenth-century New England. By the late colonial period
this world had been lost. Whereas seventeenth-century New Englanders
assumed that courts were an essential site of the public acknowledgment
and punishment of sexual transgression, in the eighteenth century control
of sexuality became a more diffuse, and hidden, social task.
What was true in New England was also true elsewhere. Indeed, the
emphasis on the communal aspect of morals regulation had always been less
extreme in other colonies. Again, it is not that the courts did not take cognizance
of morals offenses. Courts in Pennsylvania, for example, punished
numerous individuals for fornication, adultery, drunkenness, and prostitution.
And Quakers, at least, created a second system to police marriage
and sexuality within the various meetings. In Richmond County, Virginia,
although offenses against morals remained the largest single category in the
first half of the century, their overall importance declined dramatically following
the 1720s. But the more secular societies of the middle and southern
colonies never placed the same emphasis on making the prosecution and
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punishment of morals offenses a communal drama of sin and redemption.
Instead, they treated them as mundane problems of law enforcement or
left them to the cognizance of religious discipline. The authorities became
increasingly concerned with the economic and social, as opposed to the
more explicitly moral, aspects of ※morals§ offenses. Instead of the drama of
sin, magistrates were more concerned with the commonplace burdens to the
community. Bastardy, from this perspective, threatened less for its religious
significance than for the costs it could impose on the town or county.
One indication of the changing emphases of criminal justice was the
relationship between criminality and print. Across the northern colonies,
if most dramatically in New England, printers printed and readers read an
ever expanding number of criminal narratives, execution sermons, dying
speeches, and court transcripts. To be sure, growth in the number of criminal
texts followed growth in the number of printers. Nevertheless, the
popularity of criminal narratives points to the deep fascination that matters
of criminality and punishment held for eighteenth-century colonists.
It points also to the changing contours of that fascination. The English,
of course, had long distributed dying speeches. The Ordinary of London*s
Newgate prison supported himself, in part, by drafting and selling the
biographies of the condemned. Seventeenth-century colonists introduced
new twists. New Englanders led the way in developing the genre of the
printed execution sermon. Reproducing the ministerial exhortation that
took place before the hanging, execution sermons became a major technique
through which ministers asserted their interpretation of the meaning
of secular events. The involvement of leading ministers in crime literature
gave it a cultural gravity and meaningfulness it lacked in England. During
the course of the eighteenth century, however, sermons increasingly
found themselves bundled with other forms of criminal narrative. At the
same time, the growing popularity of criminal memoirs and dying speeches
suggests the widespread allure of outlaws and others who challenged authorities.
By the late colonial period ministers and their messages were pushed
to the margins; crime and criminality on its own terms had taken center
stage. The relationship between sin and crime had not disappeared from
people*s minds, but the cultural representation was increasingly secular, no
longer infused with religion.
If the emphases of the criminal courts were changing, so were court
practices. The eighteenth century witnessed increasing complexity in legal
forms and practices. Although colonial courts remained pale versions of their
English counterparts, over the course of the eighteenth century they became
comparatively more sophisticated. Criminal defense attorneys began to
appear intermittently in the colonies, law books and justice of the peace
manuals spread, and the physical space of the courts themselves became more
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200 Michael Meranze
formal. If seventeenth-century court days were often ramshackle affairs held
in ramshackle surroundings, in the eighteenth century court buildings and
court rituals became more elaborate and formidable. Indeed, in Virginia the
authority of the courts and the ritualization of court proceedings generated
struggles between attorneys who wished to seize control of the law and lay
critics who argued that the courts were becoming a world apart from the
community. The growing pomp of court activities and the formalization
of their spaces meant that criminal justice stood as a unique realm. The
public nature of punishments, of course, continued to blur the distinctions
between juridical and everyday space, but that there was a separate juridical
space was less and less in doubt.
From all of these developments should we assume that the criminal law
was becoming more ※anglicized,§ to use John Murrin*s famous phrase? Collectively,
these developments do suggest that colonial criminal law and its
practice were increasingly modeled on the central law courts of eighteenthcentury
England. The growing presence of attorneys, the increasing complexity
of legal forms, the spread of legal education, and the heightened
emphasis on property crimes all mirror developments in England. Still,
there are reasons to doubt the notion of anglicization. For one thing, England*s
criminal law was itself changing. Transformations in the British economy
and in Britain*s place in the Atlantic world produced new emphases
on financial crimes, and the elite*s perception of growing social unrest from
below stimulated the expanded capital code. For another, there had never
been a single criminal law of England that could be transported as such to
the colonies. Colonial legislators had always had a variety of legal traditions
to choose from and had done so in light of their own peculiar projects. What
was occurring in the eighteenth century was that imperial pressures toward
uniformity and colonial desires for civility both promoted a growing adherence
to a particular strain of English criminal law 每 the law on display in the
sophisticated courts of the capital. In this way, it would be more appropriate
to treat eighteenth-century transformations as an ※imperialization§ of
the law.
And then there was the question of slavery.
The law of slavery and the criminal law were powerfully intertwined.
Indeed, the expansion of slavery and slave codes constituted the single
most significant influence on the transformation of the criminal law in the
colonial eighteenth century. Not that the intersection of the criminal law
and the law of slavery was new: it had begun at least as early as Virginia*s
efforts, during the 1640s, to regulate the sexuality of female slaves. And
throughout the late seventeenth century, colonial governments had placed
firmer and firmer criminal restraints on their enslaved populations. But
during the eighteenth century efforts to control slave populations in the
interests of the master class assumed new dimensions and complexity. From
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isolated efforts to confront specific problems related to the organization of
slavery or the authority of slave owners to the establishment of special
courts and policing powers, eighteenth-century legislators across British
North America consolidated the power of the master through the authority
of the law.
Slave codes shared certain characteristics. For one thing, slave punishments
degraded the body. Slaves lacked property, after all, and the law
could only seize their corporal being. But the range of legitimated punishments
suggests that degradation of the body was not simply an extension
of the more conventional criminal codes. Virginia allowed the maiming of
runaways; South Carolina included nose slitting in its legal arsenal. Both
Virginia and South Carolina codes contained provisions for castration and
burning alive. Nor were these efforts limited to the South. Pennsylvania
included castration among its penalties in 1705 (a law that was struck down
in England). New York burned some condemned slaves alive. Moreover, the
penalties for slaves who committed offenses that cut across criminal codes
were greater. In South Carolina, a slave could be executed for causing a
white person to be ※maimed, or disabled.§8
Just as the law allowed itself broad license to degrade the bodies of slaves,
it did little to restrain masters in their similar pursuits. True, there were
legal limits to a master*s liberty in punishing slaves (and more stringent
limits on the power of an overseer), but the presumption that masters would
not willfully damage their own property meant that, in practice even more
than in law, official restraints on the infliction of corporal punishment were
negligible. Moreover, the ability of slaves to challenge their master*s punishments
was limited by their legal incompetence to testify against whites.
Although slaves could testify against other slaves (in the interest of discovering
conspiracies) their word could rarely, if ever, be mobilized against a
Euro-American. When it came to whites, the rules concerning testimony
against slaves were looser than in regular proceedings. Indeed, in New York,
Virginia, and South Carolina, to name only the most important colonies,
the authorities established separate judicial systems for slave crimes 每 courts
with streamlined procedures and fewer restraints on acceptable testimony
or legal safeguards for defendants than even the normal criminal court of
the eighteenth century. For all practical purposes slaves received some sort
of defense in these courts only when their masters decided that it was worth
their while to provide it.
In all, the basic imbalance in power among prosecutors, justices, and
defendants that was present in all court settings was dramatically intensified
in the case of enslaved men and women. To be sure, there were constraints
8 Thomas Cooper and David J. McCord, The Statutes at Large of South Carolina (Columbia,
SC, 1836每1841), 7: 359.
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202 Michael Meranze
on the exercise of the penal power. Some procedural safeguards were followed,
and sentences were remitted in part or in whole. The slaves* status as
property meant that some masters defended their slaves from the full rigors
of the law. Nor was it impossible to prove the innocence of accused slaves
or the guilt of masters who had exceeded the bounds of customary treatment.
Justices might mitigate punishments to spare the public the expense
of compensation, or because of doubts about guilt, or out of humanitarian
considerations. Each colonial code, moreover, had its own specific trajectory.
Virginia*s, for example, moved in the direction of leniency and heightened
security for the accused, whereas South Carolina heightened and tightened
its slave code across the century. Nevertheless, in each case legislators
designed the criminal laws of slavery with the same working principle in
mind 每 ensure the maintenance of human property in the interest of the
owner. From the extremity of punishments deployed, through the modified
rules of evidence, to streamlined and ad hoc judicial proceedings, the
criminal law moved with remarkable and incessant force against the bodies
and freedoms of enslaved men and women. Even the terms on which masters
might seek to protect their property reveal the basic structure of the
criminal law of slavery. Colonies offered compensation to masters for the
loss of their property in cases of execution or banishment. So for masters
the question of their loss structured the calculation of intervention: was the
alleged offense worth the loss of property, and was the compensation sufficient
for the loss of that particular slave? Some masters may have intervened
in the name of humanity. But structurally the issue was whether or not the
criminal punishment sustained, or damaged, the property holding of the
master.
The law*s deployment of public force in support of masters* power produced
a complex dual system of justice in the colonies. Most directly,
colonies with substantial populations of enslaved men and women relied
on special courts to deal with slave offenses. These courts paralleled the
regular judicial apparatus and often had the same personnel as the regular
courts, but they followed their own procedures, operated on their own rules
of evidence, and could declare their own (often exemplary) punishments.
More fundamentally, the power of the law served to reinforce and to replicate
the powers already granted to the master. Most slave crime and most
slave punishment occurred on the plantation. The legal system served as
bulwark, but the prime locus of criminal punishments within slavery was
the master*s whip, not the colony*s gallows. The role of the law was to
legitimate the informal practices of plantation discipline and to intervene
in those cases where plantation discipline was not sufficient to sustain the
legal order and the master*s authority. Only in extremely rare cases might
the community intervene against excessive plantation discipline. The law*s
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Penality and the Colonial Project 203
violence stood in a secondary, supportive relationship to the structures of
plantation violence.
Indeed, the relationship between legal violence and plantation violence
points to one of the primary structures of colonial penal law. Throughout
the colonial period, the practice of public, corporal, and capital punishment
took place in a world in which the infliction of corporal punishment by
masters against servants was a commonplace on land and on sea. The institutionally
established dual system of slavery*s criminal law renders explicit
what remained implicit elsewhere 每 that everywhere in the colonial world
an effective dual system of justice and punishment existed. Whether linked
to structures of family labor, relationships of master and servant, or the
extremity of racialized chattel slavery, the practice of public punishments
mirrored and intensified the quotidian employment of corporal correction
by patriarchs. It is a commonplace of scholarship that we will never know the
※dark figure§ of unreported crime. Nor will we ever know the ※dark figure§
of extra-juridical punishments. Juridically imposed public punishments
were the intense exemplification of authority*s everyday use of violence.
This is not to minimize the difference between legal punishments and the
discipline typically meted out by masters. The latter could be a simple slap
of the hand or blow to the body. In their actual physical force this discipline
paled compared to a public whipping, let alone a hanging. But corporal
correction was a ubiquitous element of the maintenance of authority in the
colonial world, and its significance as such cannot be underestimated, for
it could not help but support the sense that corporal punishments were
reasonable.
To point to the widespread use of coercive violence against unfree labor in
the colonies is not to deny the specificity of the master-slave situation or of
the slave codes. As Josiah Quincy remarked of the slave codes of late colonial
South Carolina, ※Legislators enacted laws touching negroes, mulattoes and
masters which savor more of the policy of Pandemonium than the English
constitution.§9 The criminal law of slavery was not simply an extension
of wider practices. It imposed punishments on slaves that were forbidden
for others. In both its extremity and in its explicit ties to race it existed
as a world apart. The dual justice system of racialized slavery highlights
one of the striking paradoxes of the racial implications of early American
criminal justice. In the case of Native Americans, formally equal access to
the courts took place in the context of a systemic social effort to marginalize
and exclude Indians from colonial society. For enslaved blacks, and for free
blacks in the southern colonies at least, recognition of the practical centrality
9 Mark Antony DeWolfe Howe, ed., ※Journal of Josiah Quincy, Junior, 1773,§ Proceedings
of the Massachusetts Historical Society, 49 (1915每1916), 457.
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204 Michael Meranze
of African Americans to colonial society produced a system of separate and
unequal legal standing. As a result, the dialectic of red, white, and black
legal inclusions and exclusions took a variety of paths.
One might pursue this dialectic further. For example, it is worth speculating
that the centrality of slavery to colonial society had crucial ramifications
for the punishment of criminals in the eighteenth century. Although the
criminal law and slavery had long and separate histories, in the eighteenth
century acceptance of the whip and the gallows fused slavery and penal law
in new ways. On the one hand, the growing importance and acceptance of
slavery in the eighteenth-century colonies may have normalized the continued
practice of publicly imposed corporal punishment. As slavery reshaped
the societies of both northern and southern colonies, the general deployment
of coercive violence took on ever greater public presence. Each setting
reinforced the other. On the other hand, from the mid-eighteenth century
onward, as the genteel on both sides of the Atlantic began to withdraw
in disgust from the spectacles of suffering at the whipping post and the
gallows, the centrality of the body in both the traditional system of punishment
and in the discipline of the plantation meant that the connection
between the two settings worked to undermine resort to violence in each. As
in England, there is evidence of growing uncertainty about the legitimacy
of public punishments in mid-eighteenth-century colonial America. The
growing problematization of the public infliction of legal violence would
prove to be an important legacy for the revolutionary period.
The imperialization of the criminal law transformed both the law and
its relationship to the colonial project. The elaboration of transportation
and the expansion of maritime courts directly intruded imperial authority
into colonial society and trade. But more fundamentally, the colonists*
consolidation of chattel slavery and their desire to partake of British gentility
meant that the law assumed new tasks of civility and coercion that aligned
the mainland colonies with the societies of the BritishWest Indies and the
culture of the metropole in new and unpredictable ways. The imperialization
of the eighteenth century meant that the question of the colonial project
would be inescapable in the history of American criminal law.
VI. COLONIAL TRANSFORMATIONS, REVOLUTIONARY
LEGACIES
The American Revolution intensified and transformed the problematic status
of legal 每 especially imperial-legal 每 authority. As the criminal law
became a source of intense conflict between rebellious colonists and imperial
officials, Americans not only redefined their relationship to imperial law
but also began to fashion their own notions of republican law. Out of the
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Penality and the Colonial Project 205
cauldron of revolutionary conflict, the newly independent states solidified
colonial practices in the South while departing in new directions in the
North. But even then Americans did not escape the legacy of their British
and imperial roots, for their search for republican penalties led them into
alliances with English strategists and theorists of punishment. Like their
early forbears, revolutionary-era Americans drew on disparate British penal
traditions. The bonds of civility persisted beyond the rupture of revolution;
the colonial relationship would not be left behind.
Nonetheless, the era of the American Revolution and Early Republic
did witness important transformations in the structures and practices of
criminal punishments and moral regulation. Most obviously, the British
Empire no longer determined the parameters of criminal justice in the
newly independent United States. Although the federal government did
construct its own criminal code its influence was negligible outside the
maritime arena. As full responsibility for crime and punishment fell to
the states the regional diversities that were implicit in the colonial period
became more explicit. What had previously been a case of different practices
within a predominantly uniform system of punishment now became
a matter of overt policy. The Northern states increasingly centered their
penal systems on reformative incarceration while limiting the deployment
of publicly inflicted capital and corporal sanctions. In the South, although
penitentiaries emerged in all states outside the Carolinas they remained
marginal to the central task of the criminal justice system, which remained
to give support to the system of slavery. In the South, the dual system of
justice inherited from the colonial period became even more entrenched
and racially coded.
The criminal law had been at the center of the agitation that led toward
independence. From the early efforts to expand vice-admiralty jurisdiction
and limit the power of local juries in maritime cases, through the trials of the
Boston Massacre, to the removal of accused British officials from the control
of all local jurisdictions, the question of the power to punish and to define
criminality haunted the revolutionary process. Popular justice, both real and
symbolic, made manifest colonial consciousness while revealing the coercion
that was intrinsic to the rebellion. During the war for independence, the
power to punish and to define criminality lay at the heart of American
claims to sovereignty 每 signified in the American army*s execution of John
Andr´e for espionage against a nation that he did not recognize.
Consequently, the Northern states began to restructure their systems of
punishment with remarkable rapidity after independence. Removed from
the structures of the empire, Northern writers and legislators demonstrated
their attachment to the doctrines of penal reform that had been circulating
through genteel Britain and Europe since the middle of the eighteenth
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206 Michael Meranze
century. They focused on two issues in particular. First, they drew on the
transatlantic critique of penal uncertainty to argue that it was the consistency
of punishment, not its physical severity, that would diminish crimes.
Second, they incorporated the growing elite revulsion at the public display
of physical suffering to argue that public punishments stimulated rather
than prevented criminality and violence. At the same time, religious dissenters
in England and their confreres in America insisted that the soul of
the condemned should become a central focus in penal practice. Whether
it was John Howard in England or Benjamin Rush in the United States,
the language of redemption and sin gained a prominence in penal thinking
that it had not had since the reform efforts of Puritans and Quakers in the
seventeenth century. Whether the motivation was primarily religious or
genteel, the body under duress ceased to be presumptively reasonable in
the penal realm. Rooted socially in the professional, mercantile, and artisanal
classes on both sides of the Atlantic, reform efforts and organizations
spread throughout the late eighteenth-century British Atlantic. In their
eyes, the body of the condemned would need to be punished in a new way.
No longer emblematic of society as a whole, the punished body would be
either avenue to the soul or target of discipline or both.
Northern legislators thus began to displace corporal and capital punishment
from the heart of penal practice. Massachusetts (1785) and Pennsylvania
(1786) began the process in the 1780s, and New York began in the
following decade, altering its codes and establishing a new prison regime
in 1796. Central to this process was a reduction in the scope of the capital
codes. Although more limited than the English code, colonial capital
codes 每 and indeed the colonial practice of capital punishment 每 had always
extended to a wide range of offenses. But throughout the period of the Early
Republic, states in the north increasingly limited their capital sanctions.
Although it would be the middle of the nineteenth century before capital
punishment was effectively limited to the crime of murder, the process was
set in motion in the Early Republic. Pennsylvania, for example, limited
capital punishment to first-degree murder in 1794. In 1796, New York
limited it to murder and treason (arson was added a few years later). Similar
steps were taken to limit publicly inflicted corporal punishments. Corporal
punishment remained a legally sanctioned penalty at least through the
1820s and a punishment for infractions of prison discipline for considerably
longer, but as with capital punishment the first steps to limit its ambit were
taken in the very first years of the Early Republic.
In place of these publicly inflicted corporal and capital punishments,
Northern states increasingly turned to reformative incarceration within
prison walls. New York and Pennsylvania undertook experiments with
public labor in the streets, but these were discontinued in the face of a
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Penality and the Colonial Project 207
remarkable consensus that criminal punishment should be based on labor
within confined spaces. In theory, at least, the combination of labor and confinement
would serve to deter crime and, in the best cases at least, reform
character itself. Across the Northern landscape new prisons were built or
older ones reconfigured and reformed. States established new governing
boards, newspapers and journals debated the proper forms of prison organization,
and visitors from around the Atlantic basin traveled to inspect the
prisons of the Early Republic.
The new centrality of incarceration was a revolution in penal theory. In
the colonial period, jails and prisons had largely been places of temporary
confinement 每 subordinate staging areas for the true sites of criminal justice:
the courts, the whipping post, and the gallows. Although occasionally
criminals were condemned to imprisonment as part of their sentence, for
the most part jails functioned simply to restrain the accused until they
could actually receive their trials and sentences. And although jails did
occasionally emerge into public consciousness and debate, this was largely a
result of issues relating to jail conditions and security. The growing emphasis
on reformation of character, a concern largely lacking in the colonial period,
transformed all of that. It necessitated an increased attention to the actual
regimes of imprisonment. One effect of this attention was a flourishing
discourse 每 a true transatlantic discourse 每 on the problems and practices
of incarceration. In this new world of punishment the prison became an
ongoing problem.
Practice changed more slowly. The changes in criminal codes did translate
into sentencing, but the process of prison reformation itself was more
complex and intermittent. In Massachusetts, New York, and Pennsylvania
每 to name only the most significant 每 new systems of authority and new
regimes of labor were instituted. The prison reformers who took charge of
these efforts strove to improve prison discipline, establish labor regimens,
and ameliorate the physical conditions of their charges. But the reliance
on corporal punishments within prison continued, the labor regimes were
erratic at best, and the health of prisoners was always at risk. Nor is there
much evidence of serious efforts to prepare inmates for reentry into society.
If anything, the more extended period of punishment separated convicts
from everyday life more brutally and more deleteriously than had the common
whipping. Despite the Enlightenment critique of pardons in the name
of certainty, the pardon reemerged as a central tool for prison discipline.
Officials used the pardon both as a carrot to encourage compliance and as
a safety valve to control numbers. Finally, as prison reformers organized
themselves into groups and boards, and sought to deploy the authority and
power of the state to remake the prison, prisoners were not passive recipients
of their efforts. Inmates constructed their own communities, struggled to
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208 Michael Meranze
control the everyday life of the institution, defended what they viewed as
their customary privileges and rights, and resisted efforts to control their
behavior. Arson and riots were only the most visible and dramatic examples
of a regular practice of resistance to prison rules and authority. In certain
fundamental respects, moreover, prison reform simply passed reality
by. Despite the rhetoric of the emancipatory effects of prison life, prisons
replicated the inequalities of the wider world. Most inmates were poor. In
the most important of the early prison experiments, Philadelphia*sWalnut
Street Jail, blacks were present in numbers significantly greater than their
presence in the city*s population. And racial tensions followed inmates into
the prisons.
Alongside these state efforts, the late eighteenth and early nineteenth
century also witnessed a flourishing of private efforts to reform morality.
Moral reform societies were not, of course new, but they grew in number and
took on new importance in the Early Republic. By the 1820s and 1830s,
moral reform groups composed of both men and women were remaking
the discourse of personal character and the institutions of social discipline.
Whether responding to poverty or prostitution, juvenile crime or drunkenness,
the conditions of prison inmates or the sick in hospitals, the same social
groups that had pushed for a rethinking of legal punishment also sought to
impose a new moral hygiene on society. Concentrated largely in the urban
areas of the Northeast, and in regular contact with their counterparts in
Britain, these reformers set up yet another dual system for the regulation
of morality. In their practices and institutions they aimed to deploy charity
in the interest of personal transformation in accord with an emerging
bourgeois ethos. Here was another reinvention of the seventeenth-century
Puritan and Quaker projects on the soil of the new Republic.
If the North took important, if limited, strides toward reconfiguring
the target of punishment away from the body and toward character, the
South took another course. It is not that the South did not also construct
penitentiaries. It did. Following the lead of Virginia in 1796, all of the
Southern states except North and South Carolina built new penitentiaries
before the CivilWar. But the Southern states never put the same emphasis
on prison reform nor did they make the penitentiary the center of their
penal practice. Instead, the penitentiary emerged as a subsidiary institution
supplementing the central form of criminal law 每 plantation discipline. In
the Deep South, almost all inmates were poor white men, accompanied by
a smattering of free blacks. In the Upper South, the majority of inmates
were poor white men with a larger minority of free blacks. Nowhere in
the South was the penitentiary the main mechanism to punish enslaved
men and women. Workhouses and prisons held runaway slaves but only
until they could be returned to their masters. Slaves remained subject to
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Penality and the Colonial Project 209
the dual system of punishment that had marked the colonial period. In
addition, although Southern states did reform their criminal codes, their
capital codes remained far more substantial than in the North.
The South, to be sure, partook in the culture of Anglo-American gentility.
And powerful arguments raged throughout the Early Republican South
over the place of public and corporal punishments. But far more than the
North, the South built on the systems of colonial labor and colonial punishments.
Whereas the Northern economies were breaking away from their
dependence on English manufacturing, the Southern economies retained
their dependent relations 每 now extended to Northern manufacturing as
well. And whereas Northern reformers joined with British reformers in
a transatlantic movement of penal transformation, Southern slave-owners
continued to organize their societies on the model of the landed aristocracy.
Their penal practices shared a common world with the British colonies of
the West Indies. As regards their bondsmen and bondswomen 每 arguably
the most important targets of Southern punishments 每 they saw little reason
to transform their systems of penal discipline. In the relationship of the
penitentiary and the whipping post stood revealed the racial divisions of
the Early Republican South. Mixing the newer notions of incarceration for
free citizens with the elaborately violent practices of public, corporal, and
capital penalties for the bound, the South created a new hybrid penal apparatus,
one that reflected its ambivalent relationship to the larger Atlantic
world as a whole.
In an ironic way, then, the establishment of the United States reinstated
the penal and juridical diversity that had marked the earliest colonies. If
the trend of the eighteenth century had been toward imperial unification,
independence meant a reassertion of regional diversity in penal practice.
Whereas the Northern states reconfigured the discipline of the body and
created an ongoing problem of penal discipline, the Southern states modified
but retained the system of corporal and capital penalties that had flourished
during the colonial period. The new nation, thereby, provided a stage to
reinvigorate the religiously based penal projects of the seventeenth century
in combination with the labor discipline of the mature slave societies of
the eighteenth. The revolutionary period simultaneously transformed and
maintained the intersection between penality and the colonial project.
CONCLUSION
Early American criminal law passed through three phases in its relationship
to imperial power. During the seventeenth century, the weakness of the
imperial state, the complexity of encounters with different Native American
groups, and the diversity of colonial labor and family organization produced
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210 Michael Meranze
extremely localized and divergent systems of criminal justice. Throughout
most of the eighteenth century, in contrast, the strengthened power of
imperial oversight, the spread of racialized chattel slavery, and the colonists*
desire to share in the forms and practices of British civility led to an increasing
uniformity and sophistication of penality combined with the elaboration
of dual systems of justice. Finally, following the politicization of the criminal
law and the search for a republican form of punishment that accompanied
the American Revolution, the governments of the new nation instituted a
renewed diversity of penality. Despite a shared affirmation of eighteenthcentury
civility and humanity, increasingly their efforts diverged according
to the presence or absence of slavery. States drew on different and often
competing legacies of imperial and colonial practice.
But the relationship between the colonial project and penality ran deeper
than the presence or absence of the empire or juridical diversity. As we
have seen, early America*s existence on the colonial periphery, in societies
without long-standing lines of social authority, placed the law*s power at
the center of questions of labor, maritime discipline, family order, and the
colonists* relationships with competing sovereignties 每 both European and
Native American. But this necessarily placed those questions at the heart
of the criminal law*s own tasks and legitimacy. The form and trajectory of
early American penality were thus inseparable from the struggles, divisions,
and projects that accompanied colonialism 每 from religion to race, security
to sovereignty, and from labor to life and death. And these struggles were
inseparable from the colonists* place on the periphery of the Atlantic system
designed to increase the wealth and power of European metropolises.
To trace the colonial origins of American criminal law and moral regulation,
then, is to do more than sketch a chronological backdrop to an
essentially national story. The continuing particularities of the American
criminal law 每 its jurisdictional localism, its deep imbrication with moralism,
its recurrent concern with vagrancy and labor discipline, and its explosive
place in the racial struggles of the nation 每 all emerged during and
out of the colonial setting. Without understanding these imperial roots it
is possible neither to understand the later trajectory of the criminal law nor
to comprehend the role it continued and continues to play in the wider
Atlantic world. Penality in America was an intricate part of the colonial
project from the beginning, and colonial projects were inscribed at the very
heart of the law.
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7
law, population, labor
christopher tomlins
English colonizers mobilized immense resources to take possession of North
America during the two centuries following their first intrusions in the late
sixteenth century. None was more important than people. Nearly 200,000
were shipped across the Atlantic during the seventeenth century, nearly
600,000 during the eighteenth. Richard Hakluyt the elder 每 Middle Temple
lawyer, Member of Parliament, confidant of statesmen, propagandist
for colonizing 每 said it first and best. To ※keepe§ the country, it had to be
planted 每 occupied and rendered productive. But planting required people.
Hence the country had to be ※man[ned].§ English purposes rendered the
existing indigenous population, to Hakluyt, ※of small consideration.§1 The
objective in colonizing North America was conquest and possession, not
simply gain through commerce. ※Manning,§ that is, meant the introduction
of alien populations not just as a reliable labor force to produce plantation
commodities for European buyers, but also to establish the colonizer*s general
dominion through physical occupation. Because population had such
an unsurpassed strategic importance, the organization of manning requires
our attention.
The demographic history of Anglophone America is characterized by
great continuities. The first is the ubiquity of movements of population 每
indigenous, European, African, and (in the second half of the nineteenth
century) Asian. The nation of immigrants is better denominated a nation of
incessant migrations, whether transoceanic or intraregional, small or vast,
voluntary or coerced. Second comes the equally ubiquitous phenomenon 每
among the newcomers 每 of rapid growth. During the first two centuries,
for example, the introduced populations of the mainland British colonies
grew from zero to 2.7 million. Though rates varied across regions and
1 Richard Hakluyt the elder, ※Pamphlet for the Virginia Enterprise,§ in E.G.R. Taylor,
ed., The Original Writings and Correspondence of the Two Richard Hakluyts (London, 1935),
333.
211
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212 Christopher Tomlins
periods, natural increase quickly outpaced immigration in accounting for
population growth. Incessant migration and rapid growth underlie the
third continuity: relentless expansion. Migration and natural increase transformed
the first little clusters of foreign strangers into teeming creole2 populations,
whose expansive mobility and constant craving for productive land
pressed unremittingly on indigenous inhabitants decimated by disease and
warfare. The British were ※like Piggons§ according to the Shawnee people of
the mid-eighteenth century Ohio Valley. Suffer but a pair to reside, ※thayd
Draw to them whole Troopes§ and take all the land.
The Shawnee encounter with the realities of manning, planting, and
keeping helps expose one of the deep connections between law and political
economy on which colonizing depended: legal ideas and instrumentalities
facilitated the displacement of one population by another. The law of nature
and nations furnished discourses of civility and barbarity upon which Europeans
founded doctrines of just war and rightful occupation; together they
created an aboriginal emptiness, the legal and spatial expression of ※small
consideration.§ Metropolitan documents such as charters and treaties, and
metropolitan practices such as tenures and deeds, filled the emptiness on
the colonizer*s terms.
But law did not merely facilitate displacement of former occupants in otherwise
spontaneous processes of settlement, or simply service those migrants
who happened to show up. Rather, law furnished the institutional technology
by which the process of migration was organized. Law established the
conditions of departure and of transit. It established the conditions under
which, on arrival, migrants became producers. Overall, law helped mold
strangers* propensities for mobility into the actuality of empire.
When we investigate the relationship of law to the process of English
settlement we tend not to focus on law*s capacity to ※frame§ macrostructural
development. We concentrate on the venerable trope that settlers carried
with them the law they knew and applied so much as was appropriate to
their new circumstances. We imagine bits of English law tucked away in
the migrant*s cultural baggage. The bits are unpacked on the far side of the
ocean like the odds and ends of an incomplete tool set, one more element in
the self-absorbed history of setting up shop in an empty landscape. The trope
has proven resilient for the very good reason that it conveys an important
truth about the legal-cultural awareness and resources of ordinary migrants.
But English law did a great deal more than furnish settlers with customary
※English ways§ to organize and render familiar their new localities. Law was
2 ※Creole§ is used here to signify persons of European or African heritage born in the
country, as distinguished from migrants (European or African) and from the indigenous
population.
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Law, Population, Labor 213
the conceptual structure 每 the organizational discourse 每 by which their
move was enabled. First, law established the context for their liberty to
be mobile by prescribing the extent of their freedom to depart and move
and settle elsewhere. Second, in chartering colonies law created new and
complex jurisdictional and governmental structures into which migrants
were fed. Third, within those structures law established the actual conditions
and effects of mobility, largely determining who might go where,
and on what terms. That is, law organized mobile masses into discrete
socioeconomic strata with very distinct legal profiles 每 freemen, masters
and servants, slaves, ※Indians,§ the settled, the unsettled (vagrant) poor.
This was perhaps the most important contribution law made to the British
Atlantic empire, so far at least as creation of a macrostructural context for
a colonizing process driven by the deployment of labor in the production
of agricultural commodities was concerned, for this was nothing less than
the organization of population into the labor force necessary, as Hakluyt
had realized, to render land occupied and productive beyond subsistence.
Finally, throughout the first two centuries of Atlantic expansion, law composed
discourses of status that defined the legal and political standing of
populations: discourses of subjecthood, citizenship, and sojourn in relation
to authority, both local and imperial.
In all these ways 每 policing mobility, assigning place, defining social
and economic roles, ascribing status, creating subjects and citizens, and
regulating their behavior 每 law shaped and organized the demography of
colonizing. Population was a vital resource for coloniz,ers. It could hardly
be left to its own devices. Nor was it, either in the terms and forms of its
mobilization, nor in its activities once planted. Few social processes unfold
autonomously. The ※peopling§ of British North America was no exception.
I. POPULATION AND MIGRATION: MAIN CURRENTS
OF MAINLAND DEMOGRAPHY
In the late sixteenth century, at the very beginnings of English colonizing,
the portion of the North American mainland that would eventually comprise
the thirteen English colonies was home to approximately 500,000
indigenous inhabitants, organized in a plethora of extended family groups,
clans, and regional ethnic federations and engaged in subsistence economies
dependent (in differing degrees) on hunting, gathering, and cultivation.
Indigenous societies were not sedentary but their mobility was purposeful,
following a settlement pattern of periodic intraregional migration among
different forest or forest-edge areas. Indigenous population was already in
decline as a result of European contact. In the Southeast, population fell
some 23 percent during the sixteenth century. In the Northeast, the decline
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214 Christopher Tomlins
over the same period amounted to less than 5 percent. The arrival of the
English in strength during the seventeenth century would see a catastrophic
acceleration of indigenous population decline overall and a relative shift in
emphasis to the Northeast as the locale of greatest loss. By 1700 the indigenous
population of English America had fallen by half. Eighty percent of
the decline occurred in the Northeast, where population decreased from
346,000 in 1600 to 150,000 in 1700.
Massachusetts Bay
European disease wrought such devastation on coastal groups in the Massachusetts
Bay region that travelers likened the bones and skulls of the
unburied dead to those that littered the biblical Golgotha. The New England
Charter (1620) invoked this indigenous disaster as a wonder worked
by providence on ※the Sauages and brutish People there§ releasing ※large
and goodly Territoryes§ into the hands of those who would ※be directed and
conducted thither.§ For as Oxford*s Regius Professor of Civil Law, Alberico
Gentili, wrote in 1588, ※&God did not create the world to be empty*. And
therefore the seizure of vacant places is regarded as a law of nature.§3
English migration to Massachusetts Bay began seriously in the early
1630s, bringing some 21,000 people into the region during the decade.
Early mortality and reverse migration winnowed this founding group to
a resident population of approximately 13,500 by 1640, but although inmigration
tapered off sharply thereafter, stable sex ratios and a relatively
even distribution of wealth in the migrant population combined with
the region*s benign (to Europeans) disease environment to encourage high
rates of natural increase and rapid population growth. By the 1670s New
England*s settler population approached 70,000; by the 1770s, 700,000.
Continuous population increase meant constant pressure on available
land. Complaints of overcrowding in settled areas were heard by the mid-
1630s, only a few years after migration began. Crowding generated outward
mobility and, inevitably, conflict with the region*s surviving indigenous
societies. By the end of the 1670s, New England*s settlers had fought
two major wars 每 with the Pequots in 1637 and the Algonquians in the
mid-1670s. Each culminated in the devastation of indigenous societies by
massacre and the enslavement and deportation of survivors. Each removed
a restraint on settler expansion. Each invoked a legal discourse of ※just
war.§ In De Iure Belli (1588每9), Gentili had written that those who violated
canons of human society established by nature 每 kinship, love, kindliness,
and a bond of fellowship 每 were brutes, on whom war might justly be made,
3 Alberico Gentili, De Iure Belli Libri Tres, John C. Rolfe trans. (Oxford, 1933), 80.
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Law, Population, Labor 215
their lands appropriated, their persons enslaved. In the better known De
Iure Belli Ac Pacis (1625), Hugo Grotius declared that war might justly be
undertaken against any who killed strangers that settled among them. This
too was an offence against nature.
The Chesapeake
Continuous settlement in the Chesapeake region began in 1607 at
Jamestown, under the auspices of the Virginia Company. Over the next
twelve years migrants arrived in an irregular trickle, the region was far less
healthy for Europeans than New England, and it was populated by wellestablished
indigenous groups with whom the intruders became engaged
in brutal, if intermittent, conflict. Mutual hatreds peaked in 1622, three
years into a period of much more systematic influx that had brought nearly
3,600 migrants to the colony. The expansion of settlement and grazing
provoked an attack on Jamestown that killed 347 colonists. In more deadly
retaliation, the English then engaged in wholesale warfare to expel Indians
from the region and secure their own permanence. As in New England, the
cycle of a growing settler population that pressed on finite resources leading
to warfare and coerced removal of indigenous groups was repeated in the
mid-1670s, using the same justifications.
By then, the Chesapeake*s white population was approaching 55,000.
Immigration had picked up after the colony was secured, particularly after
the successful establishment of tobacco cultivation. From the mid-1620s
through the end of the century more than 100,000 English migrants entered
the region. Actual population grew more slowly than immigration rates
would suggest, to a total of some 80,000 at the end of the century. From
the beginnings of settlement, the Chesapeake*s demography was dictated
by a disastrous (for Europeans) disease environment. Throughout the years
of substantial European migration, from the late 1620s through the end of
the century, up to 40 percent of the entering cohort would die during their
first two or three years of residence.
Reliance on immigration to maintain population nevertheless declined
as the century progressed, at least in relative terms. The Chesapeake*s white
inhabitants became divided into two distinct components 每 new immigrants
who died at alarming rates and a slowly growing creole population
whose demographic experience was more benign. As we will see, this
division is of considerable importance in understanding the differentiated
legalities of the Chesapeake*s labor regime.
The late seventeenth century saw a third component forcibly added to
the Chesapeake population 每 enslaved Africans. Africans both enslaved
and free (Atlantic Creoles, in Ira Berlin*s words) had been present in the
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216 Christopher Tomlins
Chesapeake almost as long as the English, but their numbers did not begin
to increase significantly until the 1660s. In 1670 the African creole population
totaled about 2,500 (6 percent of the total non-Indian population);
a decade later Africans numbered 4,300 (7 percent). That decade had seen
the first significant importation of African slaves into the Chesapeake 每
some 3,100, a figure that suggests mortality rates in the entering cohort at
least as high as among white migrants. Importation continued at a rate of
some 3,500 per decade through the end of the century. Imports to Virginia
increased to more than 7,000 per decade through 1720, then doubled to
an average of 13,500 per decade over the next thirty years. Arrivals began
tailing off in the 1750s and 1760s. The African population, meanwhile,
increased for most of the century at rates substantially higher than could
be accounted for by slave importation 每 rates of natural increase rose as
the pool of survivors from earlier migrant cohorts grew larger. In 1700
the Chesapeake*s African-origin population was 13,000 (13 percent of the
total population). By 1750 it was 150,000 (40 percent), a proportion that
remained relatively constant thereafter. As in the case of the Europeanorigin
population, Chesapeake slavery*s demographic rhythms of importation
and expansion broadly explain the particular legalities of labor in the
region.
The Lower South
In the Lower South (the Carolinas and, later, Georgia) white settlement
began in the 1660s, growing to 13,500 by the end of the century and
nearly 300,000 by 1780. Initially building an economy based on trade
with the region*s indigenous inhabitants for hides and Indian slaves for
West Indies plantations, in the 1700s white settlers began pressing hard
for land, culminating in the Yamasee War of 1715每16 and the familiar
process of expulsion of Indians for agriculture. Staple crop cultivation 每
notably rice 每 stimulated demand for labor, which meant the importation
of African slaves. In South Carolina, slave importation began in the 1700s
in numbers that approximated the flow of slaves to Virginia. In the 1730s,
slave importation increased dramatically to more than 20,000, but then
fell off almost completely in the 1740s, perhaps in reaction to the Stono
revolt of 1739 and the role played in that revolt by newly arrived Africans.
Arrivals surged again in the 1750s. Over the period from 1750 through
1790 slave arrivals averaged 17,000 per decade, compared with fewer than
6,000 per decade to Virginia.
The Lower South*s reliance on slave importation for labor meant that
for most of the century the region*s white population formed a smaller
proportion of total population than in the Chesapeake. Blacks comprised
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Law, Population, Labor 217
17 percent of the introduced population in 1700 and peaked at 47 percent
by 1740, before declining over the second half of the century to around
40 percent. Unlike the Chesapeake, natural increase did not contribute
significantly to black population growth until after the 1740s. Throughout
the first half of the century, slave importation accounted for virtually all
growth in South Carolina*s African population.
The Middle Colonies
The middle colonies 每 Pennsylvania, Delaware, the Jerseys, and New York 每
had the most diverse population of all the mainland regions. Indigenous
confederations 每 Algonquian on the coast, Iroquois to the north and west 每
were strong and populous. European settlement was begun in the 1630s
by the Dutch in the Hudson Valley and included Swedish-founded settlements
in the Delaware Valley and English settlements on Long Island.
By 1660 the European population stood at about 5,000, mostly concentrated
in the Dutch settlements. About 500 Africans were also present.
A more rapid influx began in the 1670s after the English took control of
New Amsterdam and after the creation of English colonies on both sides
of the Delaware River. In the fifty years after 1680 the regional population
grew from 15,000 to approaching 150,000. By 1780 it had reached
720,000. Much of the late seventeenth-century growth came from Northern
English, Welsh, and Scottish migrants moving to Pennsylvania and
the Jerseys, while the eighteenth century saw the development of substantial
migrant flows from Ulster, Southern Ireland, and in particular from
the Rhine lands of Middle and Southern Germany, as well as continued
migration from Scotland. All these flows developed most rapidly after the
1730s, creating the same expansionist pressure on indigenous populations
as elsewhere. Feeding into the middle colonies principally through New
York and Philadelphia, many migrants extended their mobility westward
to the Susquehanna River and thence on toward the Ohio Valley, where they
met others heading west from the Chesapeake. As in New England, however,
middle colony population growth was far more a creature of natural
increase than of migration. The region*s black population, meanwhile, grew
from 1,000 to 40,000 in the century following 1680, generally averaging
6每8 percent of the region*s total introduced population. Slavery was not
widespread in the middle colonies outside urban areas such as Philadelphia
and New York. As elsewhere, the region*s legal labor regime reflected its
demography.
Over the two centuries after 1580, then, the English mainland colonies
had been ※manned§ by between 470,000 and 520,000 English and other
European migrants (about 10 percent of them convicts or prisoners)
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218 Christopher Tomlins
and approximately 311,000 forced migrant Africans. By 1780 the nonindigenous
population stood at 2.7 million 每 79 percent of European origin,
21 percent African. It had spread in tentacular fashion up and down
western river valleys, well beyond the narrow coastal strip where Europeans
had settled in the seventeenth century. Over the same period the indigenous
population of the same regions had declined by more than half. Hit
by repeated demographic disasters and military campaigns that disrupted
established social and political organization, land use, and economic behavior,
sucked into an economy of procuring for European trading and slaving
networks, the tribes had lost much of their structure, cohesion, and group
identity. The indigenous found themselves pushed and pulled together in
newly created polyglot communities 每 temporary worlds ※made of fragments§
of what had been.4
Ironically, this new world of fragments created by indigenous decline had
something of a parallel in the swarming polythetic encroachments of the
colonizers. To become the resource (※manning§) that Hakluyt had foreseen,
however, movement had to be organized and disciplined.
II. ※DIRECTED AND CONDUCTED THITHER§: THE LAW
AND POLITICS OF POPULATING
Law was foundational in the peopling of British America.We have already
noted that the first stirrings of international law, the law of nations and
of war, are to be found in juristic discourses that naturalized European
expansion and pushed aside those on whom European arrivals intruded. In
the actual movement of peoples the relationship between law and migration
shifts from the conceptual 每 the creation of an ideal emptiness meet to be
filled 每 to the instrumental: the means to direct and conduct thither those
who would fill it.
Loco-motion
Basic to the instrumentalities of migration is the law*s place in defining the
very phenomenon 每 capacity for mobility 每 that is the essential condition of
※peopling§ itself. What Blackstone described as ※the right which the king
has, whenever he sees proper, of confining his subjects to stay within the
realm§ underscored the development, traceable to early modern England,
of an attitude that population was a resource to be rendered mobile or
4 Daniel K. Richter, ※Native Peoples of North America and the Eighteenth Century British
Empire,§ in P. J. Marshall, ed., The Eighteenth Century, vol. II of The Oxford History of the
British Empire, ed.William R. Louis (Oxford, 1998), 359.
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Law, Population, Labor 219
immobile according to the best interests of the state; this attitude was displayed
in the English case through the general assertion of sovereignty and
duties of ligeance embodied in the writ ne exeat regnum. Blackstone made
much of the centrality of ※the power of loco-motion, of changing situation,
or removing one*s person to whatsoever place one*s own inclination may
direct§ to the Englishman*s personal liberty, second only to personal security
in the great catalogue of absolute rights of persons secured by English
law. But it was, he noted, a right open to abridgment with sufficient cause
and the law*s approval, and his brief history of locomotion*s legalities noted
a history of restraints stretching over four hundred years to the fourteenth
century. ※Some persons there antiently were, that, by reason of their stations,
were under a perpetual prohibition of going abroad without licence
obtained§ 每 peers, knights and ecclesiastics, and in addition archers and artificers
※lest they should instruct foreigners to rival us in their several trades
and manufactures.§ An Act of 1381 revised and extended the prohibition,
denying departure without license to all save only ※the lords and other great
men of the realm, and true and notable merchants, and the King*s soldiers.§5
That act was in its turn repealed in 1607, but its authority is evident in the
first (1606) Charter of Virginia, which specifically licensed the departure to
America of ※Sir Thomas Gates, Sir George Somers . . . § and all who should
willingly accompany them, ※to travel thitherward, and to abide and inhabit
there, in every the said Colonies and Plantations,§ provided ※that none of
the said Persons be such, as shall hereafter be specially restrained by Us,
our Heirs or Successors.§ Nor did repeal appear to lessen the significance of
the sovereign*s claim to a general authority over departure. Thus the second
(1609) Charter of Virginia granted explicitly ※that it shall be lawful and
free§ for promoters of the colony and those they might take with them to
depart and inhabit ※the said Plantation,§ as in 1606. The grant was repeated
in the third (1612) Charter. In the New England Charter, eight years later,
the Crown in similar fashion expressly granted the New England Council
lawful authority to take and transport to ※the said Plantation in New
England, all such and so many of our loveing Subjects . . . as shall willingly
accompany them.§ Cecilius Calvert*s Maryland Charter (1632) included a
grant of ※Power, License and Liberty, to all the Liege-Men and Subjects,
present and future, of Us, our Heirs and Successors, except such to whom it
shall be expressly forbidden, to transport themselves and their Families to
the said Province.§ The same is to be found in the Carolina and Pennsylvania
charters. The English Solicitor General again asserted the Crown*s authority
over its subjects* departures in 1718, when restrictions were imposed on
5William Blackstone, Commentaries on the Laws of England: A facsimile of the First Edition of
1765每1769, vol. I (Chicago, 1979), 130, 133每4, 255每6, 261.
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220 Christopher Tomlins
the migration of skilled workers. Additional regulations on the migration
of artisans were enacted in 1750 and 1765, and defended by Blackstone, for
though ※at present every body has, or at least assumes, the liberty of going
abroad when he pleases. Yet undoubtedly if the king . . . thinks proper to
prohibit him from so doing§ it would be ※a high contempt§ to disobey.6
Blackstone*s affirmation of crown authority came at a time of rising
clamor over depopulation of the British Isles by unprecedented levels of
transoceanic migration following the cessation of Anglo-French hostilities
in 1760. The debates of the 1760s and early 1770s explicitly recognized
population as a resource of the nation-state 每 its increase to be measured, its
movements tracked, its capacities mobilized in the service of the nation*s
social and economic betterment. The calls for wholesale restrictions on
migration to which the debates gave rise were spurred by competition
between British and American interests to control this resource. Both sides
recognized that increase of population, economic vitality, and territorial
expansion were intimately related, that population was the ultimate foundation
for national power. As Benjamin Franklin wrote in 1773, artfully
speaking the parts both of an Englishman opposed to restriction and of
an American lauding the country*s development (and thus tempting the
migrant), ※New farms are daily every where forming in those immense
Forests, new Towns and Villages rising; hence a growing Demand for our
Merchandise, to the greater Employment of our Manufacturers and the
enriching of our Merchants. By this natural Increase of People, the Strength
of the Empire is increased; Men are multiplied out of whom new Armies may
be formed . . . for the manning of our Fleets in time of War.§ The increase
of colonial populations 每 whether by unrestricted migration or natural
growth 每 would render both colonies and metropolis ※more secure.§7
Two hundred years earlier, debates over English population had been
leading in quite the opposite direction 每 fear of its excess rather than its loss.
Legal debates had focused not on the Crown*s authority to restrain but to
banish. The point agitated, that is, was not freedom to depart but protection
against forcible expulsion. But even as the polarity of debate swung back
and forth over the centuries, the point at the center of the contest 每 that
movements of population were not autonomous of sovereign authority 每
remained consistent. Nor was this simply a question of movements beyond
the crown*s realm or to new domains claimed beyond the ocean. Large
segments of early modern English law addressed quite precisely the police
6 Blackstone, Commentaries, 256.
7 Benjamin Franklin, ※On a Proposed Act to Prevent Emigration§ (December? 1773),
in William B. Willcox, ed., The Papers of Benjamin Franklin, 20 (New Haven, 1976),
522每28, at 526.
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Law, Population, Labor 221
of population within the realm. From poor relief and the control of vagrancy,
through the disciplining of labor and mobilization of the idle, to the very
enjoyment of civic capacity, the English state attempted to set the terms
of social and economic organization under which people lived, moved, and
worked.
In good part the impulse to police population was engendered by environmental
trends and upheavals. English population history long followed
a pattern of secular growth interrupted by outbreaks of catastrophic disease,
the results of which 每 social and economic disorganization, dearth,
mobility 每 threatened social order. The first population peak, at more than
3.5 million, came in the mid-fourteenth century. Growth during the previous
seventy-five years had been particularly rapid, but interspersed with
periods of increasing mortality from famine and disease. These culminated
in the Black Death plague outbreak of 1348每51, which killed between onethird
and one-half of the population. By the end of the fourteenth century
the population stood at 2.1 million. Sustained increase did not resume until
the early sixteenth century and accelerated after 1530, but was interrupted,
as before, by periods of disease (notably the influenza outbreak of the late
1550s and serial plague outbreaks during the seventeenth century) and by
famine and dearth. Between the 1530s and the 1650s, the English population
had grown from 2.3 million to some 5.6 million, with a particularly
rapid increase between 1560 and 1590.
Growing population meant rising food prices, periodic dearths, and basic
alterations in the balance and location of arable and pastoral agriculture,
resulting in increased internal movement and population redistribution.
After the Black Death, conditions of acute labor shortage and suddenly plentiful
land saw arable cultivation retreat from the marginal lands to which
it had been extended in the previous half-century. These tendencies were
accompanied by structural change in the organization of agriculture that
reflected competition among landlords to attract scarce tenants, the consolidation
of vacant smallholdings into enlarged farms, the commutation
of labor services into rents, and the development of new forms of manorial
land title (copyhold) to replace villeinage. All increased the mobility of the
surviving rural population. After population growth resumed, and particularly
as the rate of growth accelerated during the latter part of the sixteenth
century, mobility continued to increase, but this time as a response to constricted
rather than increased opportunity. Impoverished uplanders from
the north and west headed south from crowded pastoral areas where relentless
subdivision of smallholdings was exhausting local capacity to continue
absorbing generational increases in population. Similarly, as the fielden
parishes typical of lowland England found their capacity to absorb their
own growing population increasingly constrained, their surplus inhabitants
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222 Christopher Tomlins
likewise searched for localities with substantial commons and wastes or
moved to woods-pasture, fens, and forest regions, all offering chances to
practice subsistence farming and to engage in by-employments. Cities and
towns provided another destination, particularly London, whose population
increased from some 50,000 at the beginning of the sixteenth century to
some 400,000 by the middle of the seventeenth.
Increasing mobility meant increasing visibility. Inter-regional subsistence
migration spurred anxiety for the stability of social order and attempts
to tie individuals in place 每 geographically, through entitlement to poor
relief; socially and economically, through the harassment of vagrants and
enforced employment of the idle. Each policy hinted at an awareness of population
as a resource to be managed for the benefit of the commonwealth 每
as did the taking of censuses. However, just as current was fear of the disease
of ※masterless§ excess that could not be controlled through existing
social and economic institutions, to which statutory criminalization was
the first and only retort. The Elizabethan poor laws were central: beginning
with the act of 1572, climaxing in those of 1597 and 1601, legislation
established compulsory poor rates for the relief of the impotent, directed
the unemployed to work, and severely penalized vagrancy. Vagrancy laws
doubled as a police of the young. Half of all vagrants apprehended were
under the age of 16, two-thirds younger than 21. Early in the seventeenth
century ※vagrant§ was defined as any able-bodied wanderer over the
age of 7.
Central authorities might pass all the legislation they pleased, but action
depended on the localities, where variations in will to implement could
make ※uniform§ policy look anything but in execution. Propagandists of colonization
stepped into this debate, arguing that overseas settlement would
remove the threat 每 indeed, put the excess to good use. In an important
sense, their arguments invited a delegation of responsibility entirely in
keeping with English state structure 每 colonies could be seen as new cooperative
and productive localities for accommodating superfluous people.
※[T]he Bees, when they grow to be too many in their own hive at home,
are wont to be led out by their Captaines to swarme abroad,§ wrote the
younger Richard Hakluyt in his preface to Divers Voyages to America (1582).
His elder cousin emphasized how, through settlement overseas, those who
were ※burdensome or hurtefull to this Realme at home§ might be made
※profitable members§ 每 particularly the young, with whom ※the Realme
shall abound too much.§8
8 Richard Hakluyt the younger, ※Preface to Diverse Voyages§ (1582); Richard Hakluyt
the elder, ※Pamphlet for the Virginia Enterprise§ (1585, two drafts), all in Taylor, ed.,
Original Writings, 175每6, 234, 330, 340.
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Law, Population, Labor 223
Organizing Mobility
By the time continuous English settlement in Virginia had begun, active
Crown engagement in projects to penetrate the ※rude parts§ of the British
archipelago 每 the Anglo-Scottish Borders, the Scottish Highlands and the
Hebrides, Ireland 每 had already brought the establishment of plantations
and, particularly in the case of the Munster and Ulster plantations, significant
transfers of population. In embracing the North American colonizing
project, the early modern English state added further to its capacities to
manage domestic population by facilitating the mobilization of its ※surplus§
for productive use elsewhere. In the American case, the crown charters that
created colonies established in detail how authority was to be exercised
over population. Charters licensed departures, as we have seen. They also
established jurisdictions to manage arrivals. Migration became a process of
moving people from one jurisdiction to another. Colonial jurisdictions were
embodied generally in the creation of structures of governance and relations
of authority, and specifically in provisions establishing explicit powers over
the movements of people 每 as in the first Virginia Charter, for example,
which granted to its licensees authority to expel ※all and every such Person
or Persons, as without the[ir] especial License . . . shall attempt to inhabit§
within the precincts of the territory assigned in the charter, and as in the
third Virginia Charter of 1611, which added a clause granting the Londonbased
Virginia Council broad authority to police migrants* departures to
and returns from Virginia ※for the well-ordering and good Government of
the said Colony.§ The same clause appeared in the New England Charter.
As well as outlining powers to manage and govern population, charters
also established the legal statuses into which migrants and their descendants
would fit. Migrants and their children would be ※subjects§ of the English
Crown, enjoying ※all Liberties, Franchises, and Immunities . . . as if they had
been abiding and born, within this our Realm of England, or any other of our
said Dominions§ (the first Virginia Charter); they were to be ※free Denizens
and naturall Subjects§ with those same liberties and privileges (the second
Virginia Charter, the New England Charter). Precisely what these terms
meant was clarified in Calvin*s Case (1608), which in the course of mediating
the jurisdictional consequences of James VI of Scotland*s accession (1603)
to the English throne as James I also began 每 indirectly 每 to address the
implications of overseas settlement for the compass of English law.
Calvin*s Case was a contrived dispute, heard by a special court consisting
of the Lord Chancellor and the judges of all the king*s common law
courts, intended to resolve the question of who should enjoy the liberties
and immunities of an English ※subject.§ Born Scots were natural subjects
of the Scottish Crown of James VI, but what of their status in England
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224 Christopher Tomlins
under James I? The English Parliament declined the proposition that all
natural subjects in each kingdom should be recognized as natural subjects
of the other. The immediate concern was jurisdiction over the movements
of population 每 parliamentarians imagined that mutual recognition would
mean an unstoppable influx of indigent Scots, exacerbating English population
excess. But they also opposed blanket recognition of the new king*s
Scottish subjects so as to avoid a ※mutual naturalizing of all nations that
hereafter fall into the subjection of the king, although they be very remote,§
an outcome that would ※disorder the settled government of every of the particulars.§
Calvin*s Case mapped the precise borders of English refusal by considering
the status of a particular subset of Scottish subjects, the so-called
postnati: those born after James*s English coronation. With the Scottish
king now ruling an additional English domain, the case tested the postnati*s
status as subjects in that domain through an examination of the infant
Robert Calvin*s right to sue in English courts to protect his title to land in
England of which he had been disseised.
Land holding in England was a privilege of English subjects, and also of
denizens 每 that is, aliens granted the privilege of land holding, though not
of heritability, by the Crown. It was agreed that Scots who were antenati 每
born prior to James*s accession to the English Crown 每 were not English
subjects and thus could not have recourse to English law. They were aliens.
At best they could become denizens. As a postnatus, however, Robert Calvin*s
status was held to be very different. Sir Edward Coke, then Chief Justice
of Common Pleas, published his opinion in the case, which as a result
became authoritative. Calvin had been born within James*s domain, of
parents who owed James obedience (and enjoyed his protection). Hence
Calvin was born into relations of ligeance. By the time of Calvin*s birth
in 1606, James*s royal domain had grown to encompass England as well
as Scotland. No political union had occurred. But ligeance was a personal
bond prevailing between the natural person of the king and the natural
subject wherever he or she might reside in the king*s domain, and hence
transcended whatever political and legal distinctions might exist among
different constituent parts of the domain. Ligeance meant that the king*s
subject enjoyed the king*s protection wherever the king ruled at the moment
that the relation of ligeance was formed. Calvin was hence as entitled to
seek remedies obtainable from the King*s English courts within their sphere
of jurisdiction as he was from the King*s Scottish courts within their sphere
of jurisdiction, or indeed from courts anywhere within the king*s domain
as it was constituted at the time of his birth.
Calvin*s Case has long been read for its imperial implications. As Daniel
Hulsebosch has pointed out, both colonists and, later, historians invoked the
case as establishing that subjects of the English monarchy anywhere within
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Law, Population, Labor 225
the royal domain had access to the benefits of English law, interpreting
Coke*s opinion to mean that English law and liberties accompanied British
settlers. Indeed Calvin*s Case did have implications for overseas expansion,
but not for the infinite extensibility of English law. Coke*s discussion of
expansion was couched in terms of kingly conquest of alien kingdoms,
Christian and infidel, and of what a conquering king might do to the laws
of a conquered territory.9 To conquest Coke counterposed not settlement
but inheritance. Monarchs who acceded to a throne by inheritance, as James
had, could not alter a kingdom*s laws except by consent of its Parliament.
The ※third case§ contention that English subjects settling new lands carried
with them the laws of England by dint of birthright would not be formulated
for well over a century. Rather, Calvin*s Case established that wherever they
were within the king*s domain, his subjects might have resort to the king*s
courts with jurisdiction in that place 每 a rather different outcome. Natural
subjects in Virginia had access to and were ruled by the law as administered
in Virginia according to the jurisdictional structure outlined in the Virginia
charters. This was not ※English law§ but law ※as near as conveniently may
be . . . agreeable§ to English law. So also in New England under the New
England Charter: local law was simply to be ※not contrarie§ to English
laws; so also in the Massachusetts Bay Company Charter: ※not contrary or
repugnant§ to English law. Calvin*s Case underlined that English law as
such was available to all subjects, wherever within the king*s dominions
they might be born or domiciled, only in England.
The charters made the same pronouncement. Guaranteed the status of
natural subjects, or denizens, migrants and their offspring would enjoy
those rights on their return. When domiciled overseas and answerable to
a local jurisdiction, however, settlers did not gain access to English law
per se, but to such law that had been formulated according to the limits
specified, and through the jurisdictional structures described, in the charters
granting permission to proceed with settlements. Coke, Hulsebosch
argues, did conceive of a certain core of English liberties and privileges
accompanying the migrating subject 每 a right to hold land by the same
tenures available in England, a right to some form of parliamentary governance
每 and both are prominent in the charters of overseas settlement. But
Calvin*s Case is concerned predominantly with the implications for English
9 If it were Christian, the conquering king might alter the laws of the conquered kingdom,
but until such changes were made its own established laws would remain in effect; and
once English laws had been introduced to a conquered Christian kingdom the monarch*s
capacity to continue to alter its laws became subject to parliamentary consent. If it were
Infidel, existing laws were abrogated ipso facto and the king might govern at his pleasure,
restrained only by natural equity, until certain laws were established anew.
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226 Christopher Tomlins
laws of the accession of an alien Christian monarch. Much of what has
since been interpreted as a disquisition on the early implications of English
transoceanic expansion was at the time a careful attempt to restrain James
I*s royal discretion and known tendencies to absolutism in his inherited land
of England.
Eutopolis
Charters, then, granted migrants permission to depart, created jurisdictional
apparatuses to receive and govern them on arrival, assigned them
statuses, and established a relationship between the laws prevailing in overseas
territories and those prevailing in England. At the same time by separating
status from territory, the discourse of allegiance allowed natural
subjecthood to become fully portable. The English state thus maintained
its emigrants in a state of legal accountability. Each was a person (subject)
who could be policed overseas no less than in the metropolis through
structures of governance established for that purpose and peculiar to each
locale.
In these respects, and others too, the charters dealt in detail with the
architecture of license, power, and authority in colonial societies, from land
tenures to the establishment of markets, manors, and churches, from the
levying of customs to the distribution of arms. As such they gave expression
not merely to the institutional practicalities of state formation but to a discourse
of civic organization that Engin Isin has recently termed ※eutopolis§ 每
the dream of the rational city made a legal reality, where population was
organized as subjects arrayed in a ranked spatial order that was simultaneously
a political order singling out the ideal citizen, the free man, and
separating him from the rest 每 the vagrants, the vagabonds, the beggars,
the slaves. Articulated in the OldWorld but continually projected onto the
New, eutopolis provided ※a technology of citizenship by which dominant
groups encased their position in the social order by fusing the political and
economic orders that produced a legal order§ and thence created the rational
city ※as a concrete spatial order,§ a housing, as it were, for their ideal.10
Nowhere is the conjunction of eutopolis with colonizing better expressed
than in the writings of Hakluyt the elder, for whom the city planted in the
transatlantic wilderness provided a perfected representation of civil association
and civilization, a seat for sovereignty, a center for commerce, and a
citadel for evangelism.
From the Virginia colony to New England to Carolina to Pennsylvania
to Georgia, the creation of cities and townships 每 ordered rather than
10 Engin Isin, Being Political: Genealogies of Citizenship (Minneapolis, 2002), 153每4.
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Law, Population, Labor 227
dispersed settlement 每 stood at the center of colonizers* strategies for securing
territory and planning inhabitation. The first settlement in the Chesapeake
was named James City (colloquially Jamestown), the second Charles
City. The projectors of the so-called particular plantations, such as Berkeley
Plantation, planned settlement based on the establishment of towns. In
New England, famously, John Winthrop*s Arbella sermon, ※A Modell of
Christian Charity,§ denominated the Massachusetts Bay colonizing project
an exemplary eutopolis, a city on a hill. Townships, not dispersed settlement,
were the key to the organization of New England*s population. The
proprietary colonies of the Restoration further elaborated the model. The
creation of a city was central to the Carolina proprietors* plans for their
colonizing project. Their Fundamental Constitutions created a dense complementary
political order 每 interwoven layers of office, rank, privilege, obligation,
boundary, and rule sorting and regulating all inhabitants. Penn*s
ambitions were not dissimilar 每 a city, contiguous concentrated settlement
patterns, and an elaborated political order all planned well in advance of
actual settlement. What was being created in all these cases was a spatially
embodied political or civic order to receive and organize the migrating
population.
Servants
While they are potent expressions of crown claims and colonizers* ideal
designs, the charters are less helpful as guides to the jurisdictional mechanics
of organizing migrating populations on the ground. Practically speaking,
neither the crown*s subject nor the eutopolis*s citizen was the legal status
of most immediate consequence for the majority of transoceanic migrants.
All were subjects; some were free men. But both in England and in North
America, the practicalities of migration and its distributional aftermath
were managed by resort to a distinct body of law, the legal incidents of
servitude, for here lay the most fecund cache of rules for policing populations
on the move in English law.
That the law of servitude should furnish the primary institutional structures
for trans-Atlantic migration is not odd 每 the immediate purpose of
migration, after all, was to supply labor for the mainland colonies out of the
surplus population of England. Further, the legal incidents of servitude were
of a piece with the subordination to a sovereign that subjecthood meant and
with the ranked order of eutopolis, simultaneously manufacturing servantsubjects
for the bottom of social hierarchies and master-citizens for the top.
Conceptually, that is, Hakluyt*s recommended exports 每 the eutopolitan
city and the surplus population of masterless vagabonds and vagrants 每
went together: the one a receptacle and an ordering device for the other.
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228 Christopher Tomlins
Once migration got fully under way in the 1630s, therefore, it is no surprise
to find that the body of law managing the transoceanic movement of population
was law relating to servitude. Servitude became an efficient means for
controlling the process of assembling migrants, financing their passage, and
distributing them on arrival. Servitude proved, moreover, a highly flexible
legal mechanism, applicable to the several varieties of relationship forged in
the process of population transfer, from individually negotiated indentures,
through terms dictated by statute, all the way to slavery.
III. POPULATION, MIGRATION, AND INDENTURED
SERVITUDE
The legal basis of early American indentured servitude was a written agreement
(indenture) committing one party to a series of payments benefiting
the other 每 to settle their transportation costs, provide subsistence over the
(negotiable) contractual term, and pay ※freedom dues§ in kind or cash at
the conclusion of the term 每 in exchange for which the beneficiary agreed
to be completely at the disposal of the payor, or the payor*s assigns, for
performance of work, for the term agreed.
Of the total European migration to the mainland colonies during the two
centuries prior to American independence (some 500,000 people), more
than half arrived committed to an initial period of servitude by indenture
or similar form of agreement, or by sentence of transportation. Among
Europeans, migration under condition of servitude was substantially more
common in the seventeenth century, when it covered 60每65 percent of all
migrants, the vast majority of whom ended up in the Chesapeake region,
than in the eighteenth century, when it covered some 50 percent (including
convicts), a plurality of whom entered the Middle Colonies. The eighteenth
century, however, saw rapid increases in slave importation. Adding enslaved
Africans to European servants, some 70 percent of all eighteenth-century
migrants entered the mainland colonies committed to servitude for a negotiated
or assigned period (European) or for life (African). The same overall
proportion was true for seventeenth-century migration, although the predominance
then of European migration meant servitude for a term prevailed
over slavery*s servitude for life.
Servitude as Regulatory Capacity
Historically, few areas of English governmental activity have proven more
constitutive of state capacities than the regulation of work and labor. It
is precisely in the ambition to control the performance and mobility of
labor that one finds the historical point of origin of what Margaret Somers
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Law, Population, Labor 229
has called England*s ※national legal sphere.§11 The Ordinance (1349) and
Statute (1351) of Labourers, adopted in response to the demographic catastrophe
of the Black Death, stand as the primary statutory expressions of the
attempt to establish cohesive government during the second half of Edward
III*s reign to hold the existing structure of society together. Before 1348,
English common law did not police agricultural or artisan labor. Such regulation
as took place was piecemeal and purely local, and dealt with labor
in terms of incidents of service arising from personal status. The Ordinance
and Statute of Labourers added parliamentary regulation to local, imposing
compulsion to work at accustomed wages on a wide range of agricultural
and artisanal occupations, setting wage standards and terms of hire, and
creating office-holders to implement the measures. So, also, did the Statute
of Artificers (5 Eliz. c.4, 1563) two centuries later, which in certain respects
once more gave labor regulation national expression. Its stated intent 每 to
reduce the several laws on the books into one comprehensive statute that
※shouyld banishe Idlenes advance Husbandrye and yeeld unto the hired
pson both in the time of scarsitee and in the tyme of plentye a convenient
proporcon of Wages§ 每 lends some support to conventional perceptions of
the statute as the domestic key to a systematic mercantilist policy of labor
regulation.
But there is more to the Statute of Artificers than a mercantilist explanation
allows. In the case of wages, its intent was self-professedly benign. The
Statute abandoned 200 years of fixing wage rates by statute because ※the
wages and allouances lymytted and rated . . . are in dyvers places to small
and not answerable to this tyme.§ This acknowledged both general price
inflation and regional variation in labor markets, and hence in wage and
price outcomes. In other respects too, the Statute was less a systematically
formulated national code than an unwieldy compilation of regionally distinct
components, serving different purposes. In the case of craft apprenticeship,
for example, it established a structure of rules that simply elaborated
practices (control of entry to trades, limitation of numbers, the delegitimation
of untrained rivals, discipline) long since developed by the urban
craft companies to regulate apprenticeship and the craft itself for their own
purposes.
Where no embedded interests held sway, however, the Statute was
peremptory. In contrast to its careful navigation of craft apprenticeship,
apprenticeship in husbandry 每 a quite different institution 每 was forcefully
established. Apprenticeship in husbandry had no preexisting structure of
11 Margaret Somers, ※Citizenship and the Place of the Public Sphere: Law, Community,
and Political Culture in the Transition to Democracy,§ American Sociological Review 58, 5
(1993), 596.
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230 Christopher Tomlins
corporate control or organized interests. It was the state*s to define. The
state did so in the name of an objective 每 ※the better advauncement of
Husbandrye and Tillage§ 每 that expressed a perception of population as
a resource for the advancement of general interests. In pursuit of ※better
advauncement,§ the Statute required that ※any pson above thage of tenne
yeres and under thage of eightene yeres,§ and without other calling, enter
the service of any householder ※having and using half a Ploughe Lande at the
least in Tillage§ for apprenticeship in husbandry ※until his Age of one and
twenty yeres at the least . . . the seyd reteynour and taking of an Apprentice
to be made and done by Indenture.§
Apprenticeship in husbandry targeted the same stratum of the population
每 rural youth 每 as the better known institution of service in husbandry.
But farm service and farm apprenticeship were very different. Servants in
husbandry were effectively self-activating. Beginning in early adolescence
they served by the year for board and wages, contracting on their own
behalf with successive masters until reaching the age of majority or until
they married. The institution was brought under the umbrella of the Statute
of Artificers, which provided for the general enforcement of yearly hirings
by justices of the peace or officers of municipal corporations, and required
that those departing service in husbandry or other yearly hirings obtain
and carry ※testimonial of licence§ 每 a certificate, pass, or other document 每
to prove to local authorities that their mobility was legitimate. But it was
not substantively altered. By contrast, apprenticeship in husbandry was
intended for surplus children unable to find positions as yearly servants; it
required them to remain in the service of a single master for the length of
whatever term of service was secured by their indenture 每 anything from
three to eleven years 每 in a relationship supervised by local authorities.
Because English farm servants appear demographically similar to
transoceanic migrant servants 每 male and youthful 每 indentured servitude
has been taken to be an adaptation of contractual farm service to the economics
of intercontinental labor transfer. In this view the intercontinental
journey was no different from the annual journeys that youths made from
village to village to enter or continue service, and the agreement a variation
on a contract for credit to cover transportation costs that required the binding
authority of an indenture because the only security on the loan was the
servant himself. No doubt numbers of migrant servants were recruited in
this fashion, particularly those in late adolescence who had gained experience
negotiating contracts as English farm servants and who managed to exert a
degree of influence on the terms of indentures agreed before embarkation.
Nevertheless, indentured servitude was not simply a credit-driven adaptation
of yearly farm service. Apprenticeship in husbandry had long since
made indentured servitude well known in England as a means to manage
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Law, Population, Labor 231
idle or surplus youth. It provided the necessary statutory definitions, and
the model of criminal compulsion enforcing a multi-year indenture as well.
Building the structure of trans-Atlantic migration on indentured servitude
thus meant building migration on an English legal foundation
designed specifically to ensure that the youngest and poorest layers of the
rural population, beginning at age 10, or even younger in the case of orphans,
were mobilized for work. Legal design was fulfilled in social outcome, for
the migrant population recruited to service in the colonies overwhelmingly
reproduced the demographic character of the population that apprenticeship
in husbandry was intended to cover. Take migration to the Chesapeake 每
the main region of mainland reception during the seventeenth century 每 as
an example. Single males were absolutely predominant (the male:female sex
ratio among indentured migrants was 6:1 in the 1630s, dropping to 3:1每2:1
during the second half of the century). Self-supporting migrants tended to
be single males, like the indentured, but older: 75 percent were below age
35 but they clustered in the 20每34 age range. Indentured migrants were
considerably more youthful: 30 percent under 19 (increasing to 50 percent
by the end of the century) and 80 percent under age 24. And in fact, servant
migration was substantially more youthful than these figures indicate.
※Typical§ age ranges rely on details of terms of service recorded in indentures
registered before departure. But many were transported to the Chesapeake
as servants without formally entering indentures before departure, destined
to serve according to standardized terms and conditions specified in local
statute law, the so-called custom of the country. The earliest such statutes
included provision for servants below the age of 12, indicating how young
migrant servants might be. The records of local Chesapeake courts, responsible
for determining the new arrivals* ages and terms of service, confirm
that servants retained according to local statute were consistently younger,
aged on average 13每14, than those negotiating indentures in England. One
may conclude that throughout the seventeenth century a significant percentage
of male servant migrants clustered well below the lower end of the
15每24 age range that has been considered the norm. On this evidence, the
※typical§ age range should be adjusted downward. Male servant migrants on
the whole are more appropriately considered children than young adults.
In the initial attempts of the Virginia Company to promote systematic
migration, beginning in 1619, indigent children feature prominently. The
association of children with migrant indentured servitude remains marked
throught the entire seventeenth century.12
Although forced transfer of destitute children by English local authorities
featured quite prominently in the Virginia Company*s recruitment efforts,
12 See also Chapter 9, this volume.
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232 Christopher Tomlins
the mechanism by which the mobilization of population was managed
in the transatlantic case was less one of direct state compulsion than of
mercantile investment backed by legal enforcement. By specifying a salable
quantity (period) of service over and above the capacity to perform labor,
the indenture commodified the migrant laborer as an article of commerce.
Migrant servants were exported to the colonies in the course of transoceanic
trade. This status 每 article of commerce 每 was confirmed in statutes enacted
by colonial legislatures to regulate trade. Migrant indentured servants,
moreover, remained within the stream of commerce. Unlike servants in
England, servants in the colonies could be bought and sold throughout
their period of service. In all these respects, the legalities of the servant
trade created a recognizable structure for the later trade in slaves.
The most elaborated role played by colonial statutes, however, was the
policing of migrant labor as a segment of the population 每 that is, specifying
terms and conditions of service, disciplining behavior, restraining
mobility, enforcing subordination, and generally creating migrant labor as
a factor of production. Such police statutes can be found in all colonies,
their appearance prompted by the beginnings of substantial migration in
the 1630s. The Chesapeake was the region of heaviest migration, however,
so it is no surprise to find the greatest concentration of regulatory laws
developed there.
The Chesapeake
In 1625, a census of the Virginia colony reported a total population of
1,227, of whom 487 were listed as servants (more than half of them owned
by just ten people). Largely children and young adults, they prefigured what
would emerge in the years of peak servant migration ahead. But at this point
servant migration had hardly begun, and little attention was given to the
details of their legal status. In its first decade the Virginia Assembly was less
concerned with defining the condition of indentured labor than controlling
the costs of hired labor, adopting from among the many provisions of the
Statute of Artificers those that empowered magistrates to assess wages and
that forbade laborers and artificers to leave work unfinished ※unlesse it be
for not payinge of his wages.§13
By the early 1640s Virginia*s hired labor statutes were no longer in force:
they were not included in either the 1642 or 1652 Assembly restatements
of Virginia law. Court records from the 1630s and early 1640s indicate that
hired workers and some artisans were ordered to perform agreed terms of
13 Act XXX (1631每2), in William Waller Hening, comp., The Statutes at Large: Being
a Collection of all the Laws of Virginia (New York, 1823), I, 167. All subsequent text
references to early Virginia statutes are taken from Hening*s Statutes.
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Law, Population, Labor 233
service or agreed tasks, but such orders peter out after the early 1640s, as the
lapse of the statutes would lead one to expect. Isolated performance orders
appear again in the 1660s, but far more often courts dealt with disputes over
hired work in a civil realm of compensatory adjustments using damages
and the apportionment of wages owed according to actual time worked
as remedies for tasks or terms of service left unfinished.14
Over the same period, meanwhile, the Assembly*s attention turned to
migrant indentured servitude, establishing it as a distinct condition of
explicit subordination to a sovereign master. Activities that implied an
infringement of the immediate master*s household jurisdiction 每 absconding,
clandestine marriage, fornication 每 were rendered liable to severe punishment,
usually including the addition of time to be served. Provisions
directed at the free population reinforced servitude*s jurisdictional hierarchy
by penalizing those who traded with servants, harbored runaways,
or enticed servants to abscond. Legislation prescribing terms for servants
migrating without indentures had been adopted by 1642 (four years if over
age 20; five years if over 12, seven if under age 12). Subsequently, the Assembly
directed the county courts to determine the ages of servants imported
without indenture. Servants completing their terms were required to obtain
certification of their freedom from former masters before hiring or agreeing
on shares with anyone else. Servants had few legislated rights, the Assembly
merely allowing them to take grievances before justices.
Virginia*s initial servant statutes were reaffirmed in the third general revision
of colony statutes undertaken in March 1651/2, just as the colony was
entering its heaviest period of immigration. The colony*s fourth general revision
(1662) shows that the subject was given additional detailed attention
during the 1650s. Statutes passed during that decade confirmed the establishment
of clear distinctions (of origin, age, and status) between migrant
and other forms of labor, and regularized the local law of indentured labor.
Old measures dealing with wage fixing and the performance of contracts
by artisan labor remained dead and buried. Certification of freedom continued
to be required of freemen entering contracts for wages, but penalties
were directed at masters who harbored or entertained freemen in another*s
employ, not at the employee. Specific performance of labor contracts by
free persons was not abandoned entirely, but it was confined in application
to persons originating outside Virginia 每 former indentured servants
or free migrants. In the case of indentured servants, clandestine marriage,
14 This and other characterizations of early Chesapeake case law advanced in the text are based
on research on the court records of York County, Virginia. See York County Transcripts,
Deeds, Orders, Wills [DOW], I-XIX (1633每1746/7, with gaps); Judgments & Orders [ JO],
I (1746/7每1765, with gaps); Order Books [OB], I (1765每1768); Judgments & Orders, II
(1768每1774); and Order Books, II (1774每1783); all located at Department of Historical
Research, Colonial Williamsburg Foundation.
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234 Christopher Tomlins
fornication, and runaway punishments were all reenacted, although physical
disfigurement of persistent runaways (branding and hair cropping) was
discontinued. The default terms of servants imported without indenture
continued to vary: those above age 16 were now required to serve five years,
those below until age 24. Age on entry was to be determined exclusively
by the courts. Prohibitions on trading with servants were also reenacted. For
the first time, however, servants gained specific protections in an enactment
that ordered ※compotent dyett, clothing and lodging,§ required ※moderation§
in correction of servants, and once more emphasized court oversight.
In 1677, masters were foreclosed from renegotiating indentures with their
servants outside the presence of a justice.
The terms confirmed during the 1660 revision remained in place for the
rest of the century. The Assembly took up the subject again, however, in
1705. This renewed attention came toward the end of a momentous period of
transition in the sources ofVirginia*s labor supply that had begun in the years
after Bacon*s Rebellion (1676), away from the youthful English servants who
had provided the bulk of the colony*s bound labor force since the 1630s
toward overwhelming reliance on the importation of enslaved Africans. The
capstone was ※An Act concerning Servants and Slaves§ a hybrid enactment
that established a comprehensive legal framework for the slavery that would
dominate the eighteenth century within a restatement of the statutory law
of servants that had been developed during the seventeenth.
Slaves were most likely present in Virginia within a decade of the founding
of Jamestown. But although slaves were distinguished from servants in
daily life by the permanence of their servitude, nothing in the colony*s early
laws differentiated slavery from servitude per se. In fact, slaves and servants
shared the distinction of originating outside the colony. Only when the
slave population began to grow rapidly, and 每 equally important 每 when
direct importation from Africa wrought substantial changes in its character,
was slavery in the Chesapeake named, defined, and placed.15
The first reference to slaves as such in Assembly legislation cannot be
found until 1655/6, when it was provided that Indian children taken as
15 It is clear that almost as soon as they appeared in Virginia, Africans were considered
legally distinct from whites. It is also clear that most were considered slaves 每 that is,
permanently in bond to others 每 from the moment of their arrival, presumably because
they were purchased and held as such. But it is less clear that Africans as a racial category
were identified as slaves; some Africans were clearly considered servants, and some became
freemen. Those who were enslaved were legally distinguishable by property law from
those who were not. And eventually those who might be enslaved were identified by legal
elaboration of racial categories. But neither property nor race concepts per se furnished the
substantive content of slavery inVirginia law: that content came from the law of servitude,
elaborated over time and adapted during the last three decades of the seventeenth century
to the condition of persons serving for life as their numbers became sufficiently large to
require distinct treatment.
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Law, Population, Labor 235
hostages might not be enslaved. Other measures passed during the following
decade strengthened the association of Africans with the condition of
slavery while distinguishing others, notably Indians. Thus, in answer to the
question whether children ※got by any Englishman upon a negro woman
should be slave or ffree,§ Act XII of December 1662 provided that ※children
borne in this country shalbe held bond or free only according to the
condition of the mother.§ Five years later, Act III of September 1667 provided
that no child born a slave could be made free by baptism. In October
1670, Act XII held that ※all servants not being Christians imported into
this colony by shipping shalbe slaves for their lives; but what shall come by
land [that is, ※Indians taken in warr by any other nation, and . . . sold to the
English§] shall serve, if boyes or girles, until thirty yeares of age; if men or
women twelve yeares and no longer.§
Bacon*s Rebellion ended the exemption of Indians. Nevertheless, the
identification of slavery remained overwhelmingly with Africans from overseas.
In 1682 the Assembly pulled together the piecemeal definitions of the
past twenty years in its first comprehensive statement. Slaves were ※all servants,
except Turks and Moors while in amity with his majesty, which shall
be imported into this country either by sea or by land, whether Negroes,
Moors, mulattoes or Indians who and whose parentage and native countries
are not Christian at the time of their first purchase by some Christian,
although afterward and before their importation into this country they shall
be converted to the Christian faith; and all Indians, which shall be sold by
our neighboring Indians, or any others trafficing with us for slaves.§
In 1660 the Chesapeake*s indentured servant population stood between
four and five thousand. The African population was less than one thousand.
By 1680, the African population had risen to slightly over four thousand,
and by 1705 it was approaching twenty thousand. The indentured servant
population, meanwhile, was in decline from its 1670s peak of more than five
thousand, and by the turn of the century sat in the mid-three thousands.
The 1682 and 1705 statutes thus bracket a profound alteration in the
composition of the bound labor force from youthful white migrants to
imported African slaves. Indeed, the timing of the 1705 statute appears to
be explained by the particularly rapid increase in resort to slave imports in
the face of the renewed shut-down of the servant trade after 1701. Unlike the
1682 statute, the 1705 statute comprehensively reorganized the substance
of the prevailing seventeenth century law of servitude around the new norm
of slavery.
The 1705 statute elaborated the substantive implications of the series of
distinctions already established in Virginia law between those servants who
were slaves and those who were not. Beginning from the now familiar position
that ※servant§ meant ※imported servant,§ the statute repeated 1682*s
definition of slaves as imported servants who were not Christians at their
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236 Christopher Tomlins
time of entry into Virginia (subsequent conversion notwithstanding) and
1662*s statement of matrilineal inheritance. Powers and duties common to
all relations of servitude were specified, but discriminations in treatment
and the availability of redress were prominent: for example, masters were
forbidden to ※whip a christian white servant naked,§ but could brutalize
or kill a slave without fear of retribution. Servants, but not slaves, could
complain to a Justice of a master*s neglect of duty, or mistreatment, or nonpayment
of wages. Servants were also held entitled to maintenance if sick
during their term of service, to freedom dues at the end of it, and to the protection
of the courts in renegotiating indentures. All were required to obey
their masters* just and lawful commands, neither servants nor slaves were
allowed to trade without permission, and procedures for pursuit and punishment
of runaways were specified without distinction. But miscegenation
penalties and established racial categorizations of enslavement prescribed
fundamental race separation.
The creation of distinct legal categories of origin (European/African,
Christian/non-Christian) to manage the substantial shift under way in the
composition of imported bound labor suggests that native-born whites comprised
a third, wholly free, civic category. The substance of local legislation
contains further indications to this effect. For example, the 1705 statute
made no mention of artisans or tradesmen, and its requirements for certification
of servants* freedom on completion of their terms distinguished
※servants§ from ※poor people . . . [seeking] emploiment§ in a fashion consistent
with prior usages distinguishing bound (or formerly bound) migrant
labor from creoles. Internally the statute was a hodge-podge of clauses inconsistent
in their descriptions of the category ※servant,§ including within its
disciplinary reach those ※become servants of their own accord here§ and
elsewhere referring to servants ※whether by importation, indenture or hire
here,§ or in another clause ※by importation, or by contract, or indenture
made here.§ Conceivably all such descriptions were meant to apply only to
persons whose origins were outside Virginia 每 indeed, this was the sense
of the legislation passed in the 1650s 每 or who had been designated community
outsiders by legal process (criminals, bound-out paupers). As in
earlier statutes there is support for this interpretation in those sections of
the statute that deal with penalties.16 But the ambit of ※servant§ is not
completely clear.
16 The 1705 statute*s penalty provisions uniformly assume that those to whom they apply
are all serving terms defined by ※indenture, custom, or former order of court,§ rather than
contract of hire. The only reference to servants by hire is in that section of the Act (10)
confirming access to judicial determination of grievances and wages owed. No penalty
provision applies to a servant by hire.
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Law, Population, Labor 237
Twenty years later, however, the transformation of the bound labor force
to one based on racial slavery was complete, and amendments adopted in
1726 altered the law dealing with runaways in a fashion that suggested
※runaway§ almost invariably meant ※slave.§ They also added three clauses
punishing refusals to work and misrepresentations of ability on the part
of tradesmen and workmen ※on wages,§ but the clauses were confined in
scope entirely to migrants imported into the colony. (At this point craftsmen
were about the only category of voluntary English labor still entering
Virginia under indenture.) Thus the 1726 statute strengthened the
association of whiteness and freedom from restraint in matters of work
discipline already apparent in the 1705 statute while treating imported
white labor as a partial and temporary exception. In 1748, the Assembly
revised the 1705 provisions applying to white labor once more to make it
unmistakably a regulation of labor imported under indenture. Servants were
those who labored for others for terms set ※by act of parliament, indenture,
or custom.§ Hireling labor was nowhere to be found among the statute*s
categories.
The course of Virginia*s statutory servant law shows that a specific form
for indentured servitude emerged locally once the practice itself had been
adopted as the best means to facilitate large-scale transoceanic transfers of
youthful migratory labor. As Virginia*s institutional complexity increased,
the police of servitude took on a more closely observed and regulated character.
But its early form 每 hierarchical, youthful, and extended 每 remained
a constant. Originating in English law*s coerced enlistment of orphan and
pauper children in agricultural production, the general concept was clearly
taken from the husbandry apprenticeship clauses of the Statute of Artificers
and from the law of vagrancy. This set indentured servitude apart from
other forms of Anglo-American labor relation: an indenture for services had
no parallel in English law outside apprenticeship in husbandry.17 Legally,
the length of term required in the colonies to compensate for costs of transportation,
subsistence, and freedom dues necessitated an explicit covenant
setting the terms of the relationship, rather than a nod. That covenant in
turn confirmed masters in the enjoyment of authority over the disposition
of servant labor for extended periods and gave them an assignable property
right in the person of the servant.
Over time, indentured servitude*s development as a legal category distanced
it from other forms of English work relation. That development also
17 Craft apprenticeship contemplated multiyear terms, but accompanied these with training
rationales beyond simple subsistence. Municipal and craft company regulation also
ordained changes in the content of the apprenticeship over time, as the apprentice
matured.
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238 Christopher Tomlins
distanced it from creole work relations. In Virginia, explicit legal subordination
to the authority of a master became a condition identified particularly
with youth, as in England, but also with persons imported from elsewhere
to labor for the resident population, rather than with anyone who undertook
work at large. More obvious in the case of slavery*s bestowal of conditions
of comparative elevation on the unenslaved, one can see throughout the
seventeenth century qualitative distinctions 每 youth/adult, migrant/creole,
bound/free 每 being woven into Virginia*s civic culture as a consequence of
the presence of indentured servitude. It was slavery, nevertheless, that finally
enabled Virginians to achieve a stable civic culture built on the distinction
between servitude and other work relations. In the wake of Bacon*s Rebellion,
planter elites were torn between a need to secure and a need to appease
their unruly white indentured labor force. Their eventual turn to a largely
enslaved plantation labor force allowed pursuit of labor force security and
white appeasement simultaneously. As Kathleen Brown has argued, white
male servants could be promised a future as part of the social order as voters,
citizens, and patriarchs. The enslaved were defined as incapable of enjoying
any such status. In Virginia, the legal culture of work bestowed real civic
capacity by simultaneously becoming a legal culture of race.
Virginia*s half-century slide from servitude to an explicit and generalized
law of slavery well illustrates how the institution could be given form
through piecemeal local action adapting elements of the law of migrant
servitude, which itself sat quite comfortably within a legal culture ※as
near§ English law ※as conveniently may be . . . agreeable.§ The Lower South
offers a variation on the same trajectory. Influenced by slaveholders migrating
from Barbados, slavery was written into Carolina*s 1669 Fundamental
Constitutions. No great influx of slave labor followed until the turn of the
century, and the development of a generalized law of slavery awaited the
moment that slave numbers began to increase. When they did, Carolina
turned again to Barbados and drew on the island*s ※mature§ slave code.
Barbados had already proven to be an important influence on English
Caribbean slave law, serving as a template for Jamaican law. But on close
examination major aspects of Barbados* ※mature§ slave law turn out to have
been constructed in much the same fashion as Virginia*s would be, by using
bits of sixteenth-century English law and practice policing the mobility of
labor and the containment of threats to social order as points of reference,
legitimation, and foundation.
English law, then, was no more segregated from the law of slavery 每
whether in the Caribbean or on the mainland 每 than it was from the law
of migrant servitude. Its capacity to define and police population was what
counted most. Indeed, as Sally Hadden has shown, many of the institutions
that scholars associate with control of slaves* movements, such as slave
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Law, Population, Labor 239
patrols and the requirement that slaves carry passes or tickets when away
from their master*s plantation, had their origins in a more general police
of movement extending to far wider categories of strangers and travelers,
intended to forestall unauthorized departures from the colony, or simply
mobility in general, among the suspicious 每 servants without tickets of
leave, debtors, Indians. In time, of course, the unsupervised slave became
the most suspicious and dangerous figure of all, identifiable by race and the
object of virtually exclusive attention. But Virginia had already begun to
turn toward a statutory policing of labor mobility when imported slaves
were still no more than a small minority of the working population. In 1672,
the Assembly embraced the Elizabethan vagrancy statute of 1597 (39 Eliz.
C.4), which called for the erection of houses of correction in each county
and imprisonment of rogues and vagabonds until they were employed or
banished.
New England
The Chesapeake offers the clearest example of the use of the law of servitude
to mobilize a population and manage the formation of a colony. Similar processes
were on display elsewhere, but are delineated somewhat less clearly 每
the circumstances of different regions and colonizing projects producing different
dynamics in the migration and police of population. Thus, in early
New England indentured servitude was of much less significance in managing
migration and labor force creation than in the seventeenth-century
Chesapeake. Bound servants comprised a far smaller percentage of transatlantic
migrants to New England than to any other mainland region, no
more than 15每20 percent of the main wave of migration during the 1630s.
Their numbers in population decreased rapidly thereafter as migration to
New England tailed off to the merest dribble after 1640.Workers on wages,
meanwhile, were never subject to much restraint. On two occasions early
in the history of settlement in Massachusetts, the Massachusetts Court of
Assistants proclaimed colony-wide wage regulation. But the proclamations
were as quickly rescinded. Relations of hire generated complaints alleging
breaches of contract, non-performance, or departure, but punitive strictures
on hirelings are not in evidence in local statutes or case records. In 1655,
for example, when Richard Jacob established that Mordecai Larkum (a
married adult) had neglected his service, Larkum was neither imprisoned
nor compelled to perform, but instead ordered to pay damages in lieu.18 In
18 This and other early Massachusetts cases discussed in the text can be found in Records
and Files of the Quarterly Courts of Essex County, Massachusetts (RFQE), vols. 1每8, 1636每83
(Salem, 1911每21; repr. 1988).
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240 Christopher Tomlins
September 1659, John Godfrey was found liable in damages to Francis
Urselton for failing to perform work for which he had received an advance
on his pay, but in November Urselton was non-suited when he attempted to
have Godfrey penalized £5 for his departure and ordered to perform the outstanding
service. The debt action can only have been an attempt to invoke
the Statute of Artificers* penalties on laborers leaving work unfinished, and
the non-suit indicates the Statute was considered inapplicable 每 indeed no
other attempt to invoke it can be identified during the entire colonial period.
From the other side of the hiring relation, when Thomas Rumerye sued John
Norman for wages for sawing timbers, Norman defended himself by showing
that he had paid in full, excepting only an amount withheld because
Rumerye had departed before the work was completed. The defendant had
not pursued the plaintiff for his premature departure nor withheld all his
wages, but had simply refused to pay in full for incomplete performance.
The court found no cause to answer.
The Massachusetts Charter described a basis for civil authority within
the Commonwealth that rested substantially on the discretionary rule of
local leaders confined only by the injunction that colony laws be ※not repugnant
to the laws and statutes§ of England. Within this ambit the colony*s
police of labor sketched a set of provisions as much protective as coercive.
The first attempt at a general statement of colony law, the Body of Liberties
(1641), drafted liberties of servants that were exclusively concerned with the
servant*s welfare. The later Lawes and Libertyes (1648) approved these provisions
verbatim while adding several rather more restrictive orders adopted
piecemeal since the beginning of settlement by the Court of Assistants and
the General Court. These prohibited servants from dealing in commodities
without permission (1630), required ※workemen§ (paid by the day) to work
a full day ※alloweing convenient tyme for foode & rest§ (1633), provided
for the return of runaway servants (1635), allowed towns to assess wages
(1636), allowed payment of wages in corn (1641), and enabled town constables
to call on artificers and handicraftsmen not otherwise engaged to
work in the harvest for wages (1646). The colony never adopted ※custom
of the country§ provisions to deal with servants migrating without entering
formal indentures because the phenomenon was virtually unknown.
No requirement of compensatory service by runaways appeared until 1695,
when courts were granted discretion to add up to one year*s service in the
specific case of ※sons and servants§ deserting the service of parents or masters
to enter on board any ship or vessel.19 As a code of conduct for those
in service, the Lawes and Libertyes recalled aspects of English law but with
19A wider grant of discretion followed in 1759 that permitted courts ※to order satisfaction
to be made§ by runaways ※by service or otherwise, as to them shall seem meet.§
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Law, Population, Labor 241
little of its detail. Only covenanted servants 每 those explicitly bound by
written indenture or other form of explicit contract to furnish services on
demand for a prescribed term 每 were clearly subject to restraint. From the
beginning most decisions were left to the discretion of local courts.
That statutory labor regulation should appear so circumscribed is not
particularly surprising given the character of the New England population.
Unlike the Chesapeake, the original migrant population for whom the Body
and the Lawes were prescribed was one of families, in which the capacity
to labor was represented by the head of household, accompanying children,
and a thin stream of unattached servants laboring under indentures
in return for passage and subsistence. As in the Chesapeake, nevertheless,
the police of labor came to be identified with two specific categories of
persons: youth and ※outsiders.§ The migrant indentured servants of the
1630s were overwhelmingly youthful. But migration to New England was
a short-lived phenomenon. When the supply of imported servants collapsed
after 1640, creole youth became virtually the only source of deployable
labor easily available to local inhabitants. The propensity for Massachusetts
statutes in general to identify disciplinable service almost exclusively with
youth is one of the most prevalent characteristics of the police of labor
in the colony. Numerous seventeenth-century statutes singled out youth
for watchful restraint while also identifying youth with service: ※younge
people,§ ※children and servants,§ ※young people, children, servants, apprentices,§
※men*s sons and servants.§ Apprenticeship, both in husbandry and
in craft, became the standard institutional means to mobilize youthful creole
labor. By the eighteenth century ※apprentice§ and apprenticeship had
become synonymous with ※servant§ and service in Massachusetts statutes.20
Because youth was outside the community of household heads, and because
youth is always everywhere considered simultaneously socially vulnerable
and socially dangerous, justifications of its subjection to ※authoritie§ were
easy to come by, as they never were for adult males.
As to outsiders, the Body and the Lawes identified three categories of
people that could lawfully be subjected to the loss of liberty that servitude
entailed. First came ※lawfull captives, taken in just warrs§ 每 that is, Indians
such as the Pequots enslaved in the aftermath of the Pequot War (1637).
Second were those ※strangers§ who ※willingly sell themselves, or are solde
to us§ 每 imported indentured servants and/or slaves. Finally came persons
※who shall be judged thereto by Authoritie§ 每 that is, persons temporarily
cast out through conviction for criminal offenses or debtors delivered by
20 As elsewhere, apprenticeship was not confined to trade education in New England, but
was the means that households used when they wished to convey a child*s or youth*s labor
to others for an extended period.
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242 Christopher Tomlins
court execution to serve creditors. None of these outsiders bulked large
in local population. Indian servants are in evidence in Massachusetts, but
enslaved Indian captives were mostly shipped to theWest Indies. Imported
indentured servants were rare after the first generation and African slaves
present only in very small numbers. Debtor and convict service was not a
realistic basis for a labor force.
Children, then, were the real basis of the early New England farm economy*s
labor force. This was no English-style service in husbandry, nor was it
plantation-style indentured servitude 每 New England farms generated neither
the demand for continuous labor imports common to the plantation
regions nor the revenues to pay for them. Instead, close-knit patriarchal
households retained their own male children in generational subordination
over an extended period of household dependency from late infancy
through adulthood and beyond. Where the labor of offspring was insufficient,
the household might add an imported servant if one could be found,
but migrant servants were distinctly supplemental and their ※careers§ followed
the dominant household-familial pattern, coming into households
young and remaining over extended periods of time.
Except for provisions aimed at policing youth, statutory disciplines structuring
the population in hierarchical work relations were not much in evidence.
As in the Chesapeake, statutory identification of specific segments
of the working population as subordinate appears to have been accompanied
by the development of exceptional degrees of legal freedom in work
relations for others 每 for adult white males and, to a lesser extent, females.
The difference was that in New England the subordinated population was
defined by age and generational ties, rather than by a dense local law of
work. The relative paucity of strangers or outsiders to be subjected to control
is striking, compared with the Chesapeake. In the Chesapeake, the
juvenile migrant indentured servitude of the seventeenth century and the
more permanent and extreme subordination of race enslavement that succeeded
it in the eighteenth were more clearly means to contain and control
strangers.
Statutory controls on the behavior and general disposition of population
remained focused predominantly on juveniles throughout the seventeenth
and early eighteenth century. In 1651, for example, servants, children,
apprentices, and scholars were all identified in a Massachusetts General
Court order intended to preserve ※the younge people of this country§ from
dissipation and idleness. Over the next thirty years, children, servants, and
youth in general were made the subject of several public order measures
policing behavior, work, and domicile. The colony*s police of mobility was
represented in its Act of March 1695 prohibiting masters of outbound ships
from taking on board ※men*s sons or servants§ without leave. A revision of
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Law, Population, Labor 243
the 1695 act passed in 1718 prohibited ※Persons Under Age, Apprentices
or Servants, Being Transported Out of the Province.§
During the eighteenth century, regulation of mobility broadened beyond
specific categories of people to address movement as a general phenomenon.
For the first hundred years, the Massachusetts population had displayed relatively
high cohesion and low mobility. Settlement had been administered
through the towns, where the regulation of entry had limited dispersal.
Even though restraints on western settlement were removed by wars to
crush indigenous resistance, the wars themselves 每 notably King Philip*s
War (1676) 每 set back the creation and settlement of new western towns
until well into the next century in favor of rising density in the eastern
region. Inter-regional migration began increasing rapidly in the 1740s,
but rising rates of purposeful population redistribution to the west were
accompanied by rising rates of intraregional transiency as well 每 people
without means of support, largely but not exclusively young and unmarried,
moving short distances among existing towns within particular local
areas. The population of strangers and outsiders was on the rise.
Transiency was not new to the eighteenth century. As well as policing
their youth, Massachusetts towns had long regulated the movements
of strangers considered suspicious 每 Indians, vagabonds, and ※nightwalkers§
每 through sanctions and warning-out. But transiency driven by poverty
(lack of employment or landlessness) was new. As the numbers of ※strolling
poor§ increased, town expulsion of transients became routine and was supplemented
by colony-wide control mechanisms. Customary town residency
requirements to qualify for poor relief (three months continuous habitation
without notice to leave) had been rendered uniform by colony legislation
late in the seventeenth century and then extended to twelve months in
1701. Town officers had been responsible for finding and warning transients
out themselves. New laws in the 1720s and 1730s placed the burden
elsewhere, requiring townspeople to report transients lodging with them
within twenty days of arrival. Residency qualifications became ever more
restrictive, and by the colony statute of 1767, transients were required to
report their own presence to town selectmen on first arrival. Each measure
rendered more difficult the acquisition of a residency and hence qualification
for poor relief; each made it easier to force transients back onto
the roads. Finally, toward the end of the century, legislation established a
colony-wide system for returning native-born transients to their towns of
legal residence. Although a feature of previous colony laws, the return of
transients to places where they might remain had long taken a back seat to
their expulsion from where they might not remain. Those migrating from
overseas without a place of legal residence within the colony became the
responsibility of the colony government.
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244 Christopher Tomlins
The police of population in New England was thus, as in the Chesapeake,
a police of work and of mobility. Unlike the Chesapeake, however, race
provided no new hard line by which to distinguish those with civic capacity
from those without it. Instead the police of work continued to focus its
attention largely on youth, while the police of mobility concentrated on
those who could not show that their mobility was purposeful and that their
purpose was backed by resources. Together these two aspects of population
control defined subaltern others from whom the community was protected.
Punishing deviation from familiar routines of family, residential settlement,
and work cemented the latter as the definition of freedom.
The Delaware Valley
The police of population and work in the Delaware Valley provides a further
variation on factors on display in the Chesapeake and New England.
Pennsylvania was founded to be a society of Christian harmony. Along with
William Penn*s desire for a NewWorld order of ※love and brotherly kindness,§
however, came a certain nostalgia for an organic English past and
belief in the inevitability of ranked hierarchy in relations among society*s
different orders. These sentiments found their way into plans for Pennsylvania*s
future population. Abhorring indiscriminate settlement, Penn planned
agricultural villages of up to twenty families, each set in a 5,000-acre tract,
recalling the nucleated, manor-centered settlement pattern of downland
England. As to the organization of migration, Penn*s earliest agreements
with his co-investors identified indentured servitude as the means to facilitate
labor transfers. The ※Certain Conditions or Concessions§ agreed in
1681 contemplated a headright system of land grants that would reward
the first purchasers of Pennsylvania land for mass importations of servants
along Chesapeake plantation lines; the Laws Agreed Upon in England (1682)
sketched the beginnings of a regulatory system to control the process of
servant importation. Approximately one-third of the first flurry of arrivals
recorded between 1682 and 1686 were indentured servants.
At its first two meetings in 1682 and 1683, the provincial Assembly
adopted a detailed set of disciplinary and police measures to frame servitude.
These measures gave local courts direct oversight of servant discipline
and conditions of work, established a servant registry, adopted a pass law,
penalized harboring or trading with servants, and prescribed five days additional
service for each day an absconding servant was absent, together with
the costs of pursuit. The Assembly also established statutory terms of service
and freedom dues for servants imported without indenture (five years
for those 17 or older, and until age 22 for those younger than 17). Codified
in 1700, these measures remained the core of Pennsylvania*s statute law
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Law, Population, Labor 245
of servitude throughout the eighteenth century. None ever touched wageworkers
or artisans.Wages were not regulated. Hirelings were not required
to remain in their employment. Unauthorized departure might mean at
most the forfeiture of unpaid wages.
The ※eutopolitan§ overtones of the proprietor*s original plans are clear.
Pennsylvania was an elaborately planned colony. Orderly settlement, the
importation and control of population through the mechanism of servitude,
detailed oversight of the performance of work, and provision for supervision
of the movements of population in general (Pennsylvania*s pass law
required all persons traveling beyond their counties of residence to carry
official certification of their place of residence on pain of incarceration as
a presumptive runaway) were all part of a single vision of controlled harmony.
But important contradictions existed between Penn*s conception of
the colony*s organization and the conditions characteristic of the English
pastoral uplands from which most of its early settlers actually came. Penn*s
nucleated agricultural villages were displaced by ※sprawling townships§ of
dispersed farmsteads producing a wide variety of crops and home manufactures,
typical of the pastoral uplands. The organization of labor, too, varied
from the proprietor*s model. First, the character of servant migration into
Pennsylvania did not follow the pattern that had prevailed in the Chesapeake.
In the earliest period, it was not dissimilar 每 a movement of children
and adolescents, largely male. Most, however, were offspring of the first settlers*
English ne,ighbors, bound in England and brought along, as in early
New England, as part of the migrating family group. Moreover, migration
from England was slowing in the late seventeenth century, so the initial
influx was not sustained. Again as in New England, after the first wave
dried up, farmers looked to their own children and to children of Delaware
Valley neighbors bound out as domestic servants and farm apprentices.
Some farmers bought slaves during the early eighteenth century to fill the
gap caused by the interruption of European migration, but never on a scale
remotely comparable to the Chesapeake colonies. The region*s economy simply
did not stimulate the levels of demand for labor that had characterized
the tobacco-planting, land-engrossing staple economy of the Chesapeake.
When migration resumed in the 1720s, Pennsylvania*s rural servant labor
force quickly reverted to a mixture of creole children and migrants, the
latter ranging from unattached youth to the offspring of incoming migrant
families (predominantly German and Irish) to entire migrant family groups
of children and adults. Other sources of bound labor 每 transported convicts 每
simply helped confirm that, for European settlers, servitude was a status
demarcated (as in New England) by age and origin 每 a condition for children
and outsiders. Public records of bindings show little incidence of servitude
among creole adults apart from debtors and local convicts.
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246 Christopher Tomlins
The incidence of servitude of any kind in rural Pennsylvania remained
low. Servant labor was supplementary to the immediate nuclear family, and
demand was dictated by the household*s life cycle. In the century following
settlement, fewer than 30 percent of households (usually fewer than
25 percent) ever contained servants, and rarely more than one at a time. In
the Chester County town of Goshen, for example, twenty of twenty-eight
purchasers recorded during the thirty-six years (1736每72) covered by the
township*s servant list bought no more than one or two servants. Only eight
purchasers bought more than two; the largest number bought by any individual
was five.21 The contrast with contemporary Maryland, where 50每75
percent of estates reported bound labor (largely slaves) with a mean holding
that ranged from eight to more than ten per estate, is marked. Despite
high levels of wages, short-term hired labor was consistently preferred by
farmers seeking assistance beyond that which could be supplied by their
own children or an indentured boy. And it was consistently available. By
the second half of the eighteenth century, free landless wage laborers called
※freemen§ (adult sons of resident landholders who were not heads of their
own households) or ※inmates§ (cottagers) had become the fastest-growing
segment of the rural labor force.
Similar patterns characterized the colony*s primary urban area. Indentured
servitude in eighteenth-century Pennsylvania was predominantly an
urban phenomenon. By the 1760s servants were no more than 3 percent
of the workforce in Lancaster, Chester, and rural Philadelphia counties. In
Bedford and Northampton counties the proportion was far lower. In the
Philadelphia workforce during the 1760s and early 1770s, the incidence of
servants was two to three times greater. (The same urban concentration was
true of slaveholding.) Greater density apart, however, city holding patterns
appear to have replicated those in the country. No more than 20每25 percent
of Philadelphia households included servants; of those city inhabitants
owning servants, 75 percent owned no more than one.
The Delaware Valley: Policing Mobility and Discipline
Regular influxes of transatlantic migrants, and the contiguity of the
Delaware and Chesapeake bays and the waterways that fed them, encouraged
constant population dispersal and mobility throughout the Delaware Valley
21 ※Town Book§ for Goshen, Chester County, 1718每1870 (Historical Society of Pennsylvania).
Sixty servants are listed ※Imported into this Province and purchased by the
Inhabitants of this Township.§ The twenty-eight purchasers comprised but one-third of
Goshen*s farmers. Eleven purchasers only ever bought one servant; ten only ever bought
two. Thirty percent of all purchases were made by one family and 50 percent by three
families.
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Law, Population, Labor 247
region. Many migrants entering through Philadelphia stayed in Pennsylvania,
but others headed north toward New York and the Hudson Valley,
or south to the Chesapeake, or west into Appalachia and beyond. Servants
landing in Philadelphia moved into the city*s craft shops and the surrounding
farming regions, but also south to the Chesapeake or to the Jerseys and
NewYork. Runaways were pursued into Pennsylvania from the Chesapeake;
runaways from Pennsylvania headed in all directions. Geography, then, gave
Delaware Valley labor more opportunity for movement than perhaps any
other locale of settlement.
James T. Lemon has observed that Pennsylvania*s ※relatively open society§
meant that people in motion encountered few obstructions.22 In fact,
Pennsylvania*s relatively open society existed as such on the basis of quite
sharply defined distinctions between freedom and restraint. As noted above,
despite Penn*s original ambitions the dispersed farm household became the
locus of social order, not the nucleated village. But the impulse to control
movement remained. Using the pass law, county authorities would regularly
restrain and incarcerate travelers unable to prove that they were not
runaway servants.
In practice, most controls of mobility focused on bound servants. In
Chester County during the period 1715每75, for example, absconding
accounted for 80 percent of all proceedings against servants initiated by
masters in the county court. Virtually all were found in favor of the master.
The severity of the statutory penalty 每 five additional days* service for
each day absent 每 made runaway time a valuable resource. Masters recorded
absences diligently, often presenting them for balancing at the end of a term
of service, rather like book debt. At the same time absconding appears quite
exceptional: the average number of proceedings was but three per annum:
it has been estimated that 95 percent of all servants under indenture quietly
completed their terms without incident.
Court supervision of the master-servant relationship stretched well
beyond the police of mobility: Pennsylvania statutes made substantially
greater provision for juridical oversight of the relationship than elsewhere.
Nor were servants reticent in seeking intervention on their own behalf;
they regularly appealed to the courts* statutory authority in an attempt
to blunt the asymmetries of power inherent in their situation. That the
courts chose to mediate settlements in the majority of disputes meant that
petitioners could be vulnerable if justices were biased. But the evidence
does not suggest bias: servant-petitioners never appeared reluctant to press
complaints.
22 James T. Lemon, The Best Poor Man*s Country: A Geographical Study of Early Southeastern
Pennsylvania (Baltimore, 1972), 71每97, esp. 96, 97.
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248 Christopher Tomlins
Though the policing of disputes between masters and indentured servants
was no more crudely one-sided in Pennsylvania than it was elsewhere,
the courts acted within the compass of a general understanding
that, both socially and legally, the relationship of master and indentured
servant was legitimately one of authority and subordination. Emblematic
of this understanding was the courts* almost mechanical processing of runaways,
which exemplified the key characteristic of servitude, the legality
of restrained mobility. But court intervention was conditioned on the existence
of an indenture. In May 1732, for example, Jonathan Strange sought
redress against one Humphrey Reynolds, who had neglected his promise to
※faithfully and truly serve him§ for three months in consideration of wages
advanced by the plaintiff.23 But Strange*s action was a civil suit seeking
damages for Reynolds* failure to perform, not an invocation of the criminal
penalties applied so routinely to indentured runaways. And unlike the
summary disposal of those runaways, Strange*s suit (like most civil suits in
Chester and elsewhere) simply languished on the docket (in this case for
three years) before being composed, privately, by the parties themselves. In
the same way, the court found that Martha Liggett was free to depart the
service of James Caldwell without penalty because no indenture bound her;
nor could Mary Broom be punished for ※disobedience to the orders§ of her
master, for she too was not bound.
Whether workers on wages remained liable to loss of earnings in the
event they broke agreements to serve 每 as observers alleged 每 cannot be
determined easily. Civil suits seeking payment for work invariably alleged
prior performance, but generally offered few details. The form of wage work
transactions suggests the predominance of casual day work; work debts were
either paid immediately at the conclusion of a task or accumulated over time
to be presented in periodic mutual accountings in the normal fashion of
book debt. Such a pattern is unlikely to generate disputes over the ※entirety§
of a contract. Moreover, the amounts in dispute were generally small enough
to be settled by a hearing before an individual justice, of which almost no
records survive before 1760, rather than in the county court.
All that said, there is good evidence that wage laborers in breach of
individual employment contracts did not face loss of unpaid earnings in
colonial Pennsylvania. In July 1767, for example, Eneas Foulk appeared
before Richard Riley, JP, of Chichester township to seek payment for work
undertaken on behalf of Isaac Pyle. Pyle replied that Foulk had not been
23 This and other early Pennsylvania cases discussed in the text can be found in the
records and files for cases heard at courts of Common Pleas and General and Quarter
Sessions, Chester County, all available at the Chester County Archives, Westchester,
Pennsylvania.
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Law, Population, Labor 249
paid because he ※had not compleated his work according to Bargain.§ Riley*s
decision was that payment was owed for what had been done 每 ※that the
value of the work done & due to the plantiff is but 15/- and no more.§24
In the Delaware Valley as elsewhere, then, the indenture established a
crucial line of legal status in the performance of work 每 a line of demarcation
between enforceable and unenforceable obligation. The indenture signified
when the assertion of capacity to control or restrain or penalize another was
legally allowable. It signified what labor was not ※free§ and mobile, and
what was. In the Delaware Valley, as elsewhere, the indenture existed in an
environment crosscut by numerous intersecting lines of social demarcation 每
of age and gender, of race 每 to which the police of labor was intimately
related. As elsewhere, too, the structure of labor was itself a hierarchy,
one in which the legal freedoms of adult white creole males stood out
against, and were buttressed by, enforceable obligations of service visited
more weightily on others 每 the young, migrants, and slaves. We have
observed the same hierarchy in the Chesapeake and in Massachusetts, so
to encounter it in the Delaware Valley is no surprise. As in Massachusetts,
however, the subordinations encountered in Pennsylvania were essentially
temporary and life-cyclical. Not until African enslavement had established
race as the cardinal measure of servility does one find a segment of the early
American population designated as a permanent underclass of workers. It
is racial slavery that finally renders ※master and servant§ not as a temporary
and essentially contained legal hierarchy, but as an expansive polarity of
freedom and its absence in early America.
CONCLUSION: CIVIC STATUS IN THE EARLY REPUBLIC
※I apprehend,§ Benjamin Franklin wrote in 1773, ※that every Briton who
is made unhappy at home, has a Right to remove from any Part of his
King*s Dominions into those of any other Prince where he can be happier.
If this should be denied me, at least it will be allowed that he has a Right
to remove into any other Part of the same Dominions.§25 Domestically,
the claim of an ancient ※right§ to mobility had been hedged repeatedly
by Crown pronouncement and Parliamentary action. Britons nevertheless
had removed themselves across the Atlantic or had been removed, with
comparative ease. Still, Britons* mobility was conditioned by structures
that policed their migrations. And for other transoceanic migrants, transfer
took place without choice of any kind.
24 See, Richard Riley, Record of Proceedings (1765每1776), Historical Society of Pennsylvania,
Philadelphia.
25 Franklin, ※On a Proposed Act to Prevent Emigration,§ 527.
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250 Christopher Tomlins
Transfers of population were crucial to the success of English colonizing
in North America because controllable labor was the key to permanent
occupation. Hence it is unremarkable that early modern labor law 每 the law
of servitude 每 should become the means to organize population transfers:
the law of servitude was the early modern era*s most efficient means to the
control of mobility. In its turn, servitude became the line of demarcation on
which civic status, its relativities (for men and women, adults and children,
masters and servants), and absence (for enslaved Africans) were erected.
This basic set of relationships among servitude, the police of population,
and civic capacity was reproduced in the new Republic 每 in its constituent
states and localities, in its Federal Constitution, and in its social practices.
Locally, the early modern ideal of the eutopolitan city was expressed anew as
the ※well regulated city§ of ※regular gradation§ and ※correct arrangement
and subordination of the parts.§26 In Boston, Josiah Quincy*s reflections
on the relief of poverty would take as their point of departure the efficient
employment of population in productive labor at the same time that the
ownership of property was becoming institutionalized as the criterion for
civic membership. Vagrancy laws remained on states* books. Meanwhile,
the Federal Constitution famously embedded a commitment to the police
of labor mobility in the Republic*s fundamental law through the fugitive
clause of Article IV. The so-called fugitive slave clause, it must be
remembered, applied not only to slaves but to any person ※held to Service or
Labour.§ Article I, meanwhile, granted additional recognition to the hierarchy
of civic capacity created by the laws of servitude while at the same
time masking the expression of hierarchy by redefining persons held to
service ※for a Term of Years§ as ※free§ for purposes of representation, which
left slaves as the only [and now quintessential] fractional ※other Persons.§
Those bound to service for a term of years might still be restrained, but were
yet ※free.§ Quotidian life reproduced constitutional law in its own earthily
simple claim: ※None but negers are Sarvants.§27
As Samuel McKee put it, long ago but so well, in mainland America
during the seventeenth and eighteenth centuries ※free§ labor came to mean
※without public or private regulation.§28 That is, rather than create a regulatory
regime from statute and common law for the performance of work
as a whole, as in England, laws in each region of colonial settlement were
targeted to particular segments of the available labor force 每 indentured
migrants, apprentices, slaves 每 establishing by default interstitial zones of
26 Peter Oxenbridge Thacher, An Address to the Members of the Massachusetts Charitable Fire
Society, at their Annual Meeting, in Boston, May 31, 1805 (Boston, 1805).
27 Charles William Jansen, The Stranger in America (London, 1807), 88.
28 Samuel McKee, Labor in Colonial New York, 1664每1776 (New York, 1935), 179.
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Law, Population, Labor 251
(unregulated) freedom. In this sense, ※None but negers . . . § could indeed
emerge from the colonial era*s legal culture of work with the appearance of
transcendent civic fact, particularly after the Constitution declared those
bound for a term of years to be ※free§ for at least some of its purposes.
During the first half of the nineteenth century the quotidian claim became
increasingly hollow. Rather than atrophy, the ambit of master and servant
grew until it absorbed the employment contract as a whole, underwriting
the employer*s right and capacity, simply as one who had contracted with
another for the performance of services, to assert magisterial powers of
management, discipline, and control.
Ironically, given the American Revolution, English influence was felt
strongly in this nineteenth-century alteration of the Republic*s master/
servant relationship. This was not a matter of statutory borrowing.
Rather it resulted from the influence of authoritative English common law
reports and treatises 每 the product of common law judging and reconceived
common law doctrine 每 all of which encouraged American legal culture to
reject earlier delimited, parochial, and regionalized approaches to master
and servant in favor of a more expansive, universalized conception of law 每 a
cosmopolitan aesthetic delightful to the Republic*s appellate elites. During
the seventeenth and eighteenth centuries, America*s colonial legal cultures
had severally felt the original influence of English laws, but had simultaneously
refracted them through dissimilar regional cultures of settlement
whose distinctive statutory regimes resulted in differentiated legal cultures
of work. But the impulses of the nineteenth century lent themselves to
nothing so much as an overpowering indifference to that earlier history.
The new nation sought a new legal culture not of discrete differences but
of transcendent universals.
The importation of common law master and servant doctrine into
nineteenth-century employment law was an importation of a general conceptual
structure and language of legitimate authority in work relations, not
of English legislation*s criminal disciplines. ※Free labor§ was not a meaningless
designation. But the importation was nevertheless deeply significant,
for what distinguished the nineteenth-century version from what had gone
before was its all-encompassing quality, finding disciplinary authority in
the contract of employment itself, rather than in the particular sociolegal
status 每 youthful, indentured, and so forth 每 characteristic of the worker.
Thus TimothyWalker wrote, ※We understand by the relation of master and
servant nothing more or less than that of the employer and the employed.§29
This had its consequences.Wage labor throughout the northeastern states,
for example, was challenged by legal strictures that imposed economic
29 TimothyWalker, An Introduction to American Law (Philadelphia, 1837), 243.
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252 Christopher Tomlins
disciplines absent in the previous century. In the antebellum South, the
status of ※free labor§ remained qualitatively distinct from slavery, but white
workers found the claims to legal privilege and civic status they had built
on their difference from slaves increasingly vulnerable. Indeed, what crept
into their debates with local elites were intimations of a willingness to work
as hard as slaves in order to keep racial privilege within their grasp.
After the CivilWar, this antebellum common law regime was joined by
new measures that greatly intensified the police of population in the market
for labor and at work, underscoring the homologies of coercion and contract,
North and South. In the South, criminal sanctions against idleness and
vagrancy forced freedmen into wage work. In the North, new laws reconfirmed
the criminality of purposeless mobility, prescribing imprisonment
and forced labor for vagrants and beggars. Once secured in an employment
relationship, the common law of master and servant confronted the
employee with the reality of employer-designed discipline. If ※free labor§
in the colonial era had come to mean the absence of ※public or private regulation,§
a century into the era of the Republic, free labor was apparently
quite compatible with both.
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8
the fragmented laws of slavery in the
colonial and revolutionary eras
sally e. hadden
The striking fact about slavery in the sixteenth, seventeenth, and eighteenth
centuries was its universality. Enslaving humans was legal throughout the
western hemisphere in the early modern period, sanctioned by every major
legal system in operation there. The right to hold another person in bondage
depended precisely on legal definitions of who could be enslaved within a
given civilization 每 the English, Spanish, French, Dutch, Portuguese, and
Native Americans differed on this and other specific slave laws 每 but if
one could enslave another, the economic advantages to be gained were
great, and the status of the slaveholder generally rose or fell in proportion
to the fluctuating number of bondsmen he owned. In each New World
colony or nation, however, the elevation of the slaveholder depended on the
diminution of the slave. Slave law granted slave owners virtually unlimited
power over the enslaved, but those laws simultaneously diminished the
personhood of the enslaved, as if the bondsman had in some degree endured,
in the words of sociologist Orlando Patterson, ※social death.§
Two groups of people suffered this social death in disproportionate numbers:
Native Americans and Africans. Native Americans enslaved Native
Americans, Africans enslaved Africans, and Europeans took advantage of
the extant trade on both continents, buying unfree persons in ever increasing
numbers until the nineteenth century. Assessments of the magnitude
of slavery among Native Americans remain approximate; however, historians
suspect that in the southeastern part of North America during the
seventeenth and eighteenth centuries, some 50,000 aboriginal captives ultimately
ended up in the hands of European slave traders. The estimated total
number of enslaved individuals exported from West Africa to the western
hemisphere between the fifteenth and nineteenth centuries, 11.3 million,
is quantitatively firmer. Approximately 9.3 million survived the arduous
Middle Passage. Of these, 3.8 million men and women arrived in Caribbean
colonies held by European powers, many destined for subsequent transport
to other New World destinations. Another 500,000 went directly to the
253
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254 Sally E. Hadden
North American mainland between 1600 and 1808, when the importation
of African slaves finally became illegal under U.S. law. Slavery and the laws
that sanctioned it thus bound together disparate nations belonging to the
Atlantic world and provided the rationale for the coerced migrations of
millions who left behind homes and families for uncertain futures wherever
their owners might force them to go.
From these imported, involuntary migrants grew the massive unfree populations
that fueled America*s growing economy in the antebellum era. By
1810, nearly 1.2 million slaves were living in the United States; by 1860,
that number had reached 3.9 million, with laws designed to restrict virtually
every aspect of slave life. By comparison, slavery in the colonial and revolutionary
era, whether in New England, the Chesapeake, or the Caribbean, was
a much smaller affair, and the laws pertaining to slavery were more scattered
and less organized. To understand slave law in seventeenth- and eighteenthcentury
North America, one must forget the full-blown plantation society
that the antebellum South would become, and reach back to an era when
societies with slaves (communities in which slave labor was present, but
non-essential) were more common than slave societies (communities in
which slave productivity was the economic base). In other words, slavery
before 1800 differed significantly from antebellum slavery, and the same was
true of laws governing the enslaved in each period. Antebellum slave law
developed mostly through case law, and its main challenge was reconciling
conflicts of comity between Northern and Southern law 每 a reflection of the
growing sectional disagreements about slavery*s morality in the nineteenth
century. No such disagreements plagued early America. European settlers
North and South assumed the universal acceptance of enslavement. Slave
law evolved more or less at will, through invention, imitation, and appropriation
from a variety of legal sources. Municipal ordinances, individual
laws, and criminal codes, rather than case law, dominated its development.
Widespread acceptance encouraged laws about slavery that were drawn originally
from numerous fragmented sources 每 Spanish, English, and French 每
to commingle slowly in more unitary statements about the permissible
behavior of bondsmen. Eventually this gave rise to the creation of codes 每
sweeping, near-comprehensive laws.
The scattered origins of slave law in early America mirrored the fragmented
background of America*s colonization. Yet these splintered European
sources shared important cultural underpinnings that justified
bondage. The legitimacy of slave law throughout the western hemisphere
was built on common religious and philosophical principles that stretched
back to antiquity. Only the slow, steady development of Enlightenment
criticism and religious movements like Quakerism that rejected slavery as
immoral would eventually shatter the near-universal acceptance that, until
the late eighteenth century, slave law enjoyed.
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 255
The widespread support for slavery in the colonial period gradually disappeared
in the revolutionary era, leading to a different form of fragmentation
in slave law. As colonies gave way to states, America*s founding generation
divided on the morality of enslavement. Lacking a national consensus, sensible
that state laws covered most foreseeable situations, federal lawmakers
crafted no overarching national law of slavery, but instead left the matter of
slave law to individual states. The movement toward gradual emancipation
in Northern states and increasing penalties for those involved in the international
slave trade created a rift between the North and South over the
general acceptability of bondage. As Congress outlawed the African slave
trade and new laws banned slavery north of the nation*s capital, the trend
toward nationwide acceptance of slave law began to reverse itself. Though
new states from the Deep South entered the Union having adopted the slave
codes similar to those of South Carolina and Virginia, each additional state
admitted placed additional strain on the principle of comity, strain that
would only grow in the antebellum era.
The historical analysis of slave law in America, whether in the colonial or
the early national period, has tended to focus on the ascendancy of England
and English common law, obscuring the multiplicity of legal systems that
actually contributed to slave laws in America prior to 1800. Likewise, analysis
has emphasized positive law 每 the edicts of monarchs, the enactments of
legislative assemblies, the opinions of judges 每 reflecting the longstanding
cultural bias ofWestern societies to privilege written texts over oral traditions.
Emphasis on the written word parallels another long-familiar trend
in legal history, the priority given to those who pronounce the law rather
than those affected by its decrees. Variously, these scholarly preferences have
retarded a thoroughgoing investigation of what Africans thought of slave
law, either in Africa or in America 每 we know far more about white enslavers
and how they sought to restrain their human property than what bondsmen
thought of those laws.
I. BEFORE AMERICAN SLAVERY: AFRICAN AND EUROPEAN
CONCEPTIONS OF SLAVERY
Unfree persons, whether serfs, villeins, or slaves, could be found in almost
every society, European or African, before the fifteenth century. Laws governing
their actions, or structuring their transfer from one master to another,
were codified as written law became more widespread. In Africa, Muslims
following Islamic law (shari*a) believed it legitimate to enslave only non-
Muslims, and developed elaborate legal treatises like the Mi*raj al-Su*ud
ila Nayl Hukm Majlub al-Sud that addressed multiple aspects of slave law.
No distinct racial aspect of Muslim enslavement existed: the one requirement
to be enslaved appeared to be ※otherness§ in belief 每 the difference
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256 Sally E. Hadden
in religious tradition between enslaver and enslaved. A fifteenth-century
imam wrote that ※slavery is a humiliation and a servitude caused by previous
or current unbelief and [has] as its purpose to discourage unbelief.§
Like Spanish and other legal systems derived from Roman law, Islamic law
encouraged manumission (&itq), and slaves could gain their freedom through
several methods: self-purchase by contract (mukataba, comparable to Spanish
coartac´ıon); declaration by an owner to take effect on his death (tadbir) or a
simple declaration of freedom in the present tense (the slave is immediately
freed); or release of the slave as penance for a master*s wrongdoing. Under
Muslim law, an enslaved woman who gave birth to her master*s child would
eventually be freed, and the child was automatically free.
Elsewhere in Africa, other thriving legal traditions regulated the slave
trade. Unlike Muslim law, among mostWest African tribes the legal status
of the enslaved depended not on religious difference, but on tragic, catastrophic
events: wars and slave raids converted once-free men and women
into chattel. The legal presumption that one could identify a slave by race,
which came to dominate American law by 1800, had no direct parallel
in African practices. The boundary between free and unfree also seemed
mutable in West Africa, for multiple definitions of enslavement existed
simultaneously among tribes of Senegambia, the Bight of Biafra, the Bight
of Benin, and Loango and Angola (the principal source regions for Africans
who became slaves in America). Among the Igbo people, there were religious
slaves (Osu), slaves of men (Oru or Ohu), and pawn-slaves. Religious
slaves almost never attained their freedom, for their service was pledged
to a god. Bondsmen belonging to men might readily alter their status
through self-purchase or intermarriage with the master*s family. Pawnslaves
worked only until a specific debt was repaid and could not be sold,
given, or traded away by the original debt holder. Laws affecting the treatment
of slaves in Africa varied by tribal custom and region, but freedom
and assimilation into the enslaver*s family were often provided for through
law or tradition. Since female slaves were preferred by many African tribes
(for both their productive and reproductive capacities), these assimilation
laws were routinely invoked. Preferences for emancipation and assimilation
did not find their way into colonial laws of British North America,
although enslaved African women may have wondered whether European
colonists provided analogous legal means to change status from unfree
to free.
The laws of slavery known to Africans had little impact on the laws
created by their European enslavers, whose most frequent defenses of the
enslavement of others were biblical texts or references to natural law and
writers from antiquity. Few Europeans criticized the institution of slavery
on theoretical grounds before the eighteenth century, and many defended
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 257
it as the result of just wars. Although Christian tradition could readily be
turned against slavery, in the early modern period Portuguese or Spanish
slave raiders more frequently used it 每 with papal blessing 每 to legitimize
their activities. A few Spanish theologians criticized slavery in the
late fifteenth and early sixteenth centuries, including Cajetan, Francisco de
Vitoria, Domingo de Soto, and the well-known Bartolom´e de las Casas.
Slowly they began to propagate the view that enslavement of infidels could
not arise from necessity or be sanctioned solely by papal authority. Some
of their theoretical opposition to slavery rested on firsthand observations.
De las Casas had traveled to the New World and wrote in graphic detail
about the horrors of bondage. But these critics were a minority in the
Iberian tradition, and throughout the rest of Europe, the opinion prevailed 每
relying on references to men like Thucydides and Cicero 每 that enslaving
one*s enemies could be sanctioned following just wars.
European humanists in the natural law tradition, like Alberico Gentili
and Hugo Grotius, argued convincingly that persons could lawfully be made
slaves, even if they rejected slavery in general. In his best-known work, De
Jure Belli ac Pacis (1625), Grotius rejected the idea that bondage could be
rationalized as the natural state of any human being: ※[A]part from human
institutions and customs, no men can be slaves; and it is in this sense that
legal writers maintain the opinion that slavery is repugnant to nature.§1
Despite this, Grotius still considered slavery valid as a ※result of lawful
causes,§ and his views gained rapid acceptance among individuals seeking
to enslave Africans or Native Americans. Pirates, barbarians, cannibals,
those who did not know Christianity, and those who killed settlers might
all deserve to be slaves.2 Grotius*s writings and those of similar natural
law theorists dominated mainstream European thinking about slavery in
the context of warfare and developed the wide-ranging rationales needed to
legitimate European aggression against their African or Native American
victims. Colonizers as well as philosophers like Hobbes and Locke read and
quoted Grotius with approval.
Such philosophical perspectives gained wide readership in places like
seventeenth-century England where slavery per se had vanished except in
ancient law texts. In England, common law before the fifteenth century
had no provisions directly pertaining to slavery because English slavery,
defined as such, had all but disappeared by the thirteenth century. Forms of
servitude like serfdom or villeinage bound unfree persons to specific plots
of land through the Middle Ages, but such tenures were increasingly rare
by the fifteenth century and did not carry the full range of legal restrictions
1 Book 3, ch. VII, ∫ 1 and book 2, ch. XXII, ∫ 12.
2 Book 2, ch. XXII, ∫ 11 and ch. XX, ∫ 40.
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258 Sally E. Hadden
commonly associated with slavery. The closest analogy in English law was
apprenticeship law, by which a young person wishing to learn a craft was
bound by indenture to a master*s service for a term of years. During the
period of service, the apprentice was under the full legal control of the master,
who could punish him for neglecting service, absconding, or marrying
without consent. However, a master who failed to provide food, clothing,
or training to the apprentice could be fined and the apprentice freed from
his indentures. Indentured servants brought from England labored alongside
African slaves in the Caribbean and British North America through
the mid-seventeenth century, and early colonial statutes frequently refer
to both groups together when describing punishments for misbehavior or
running away.
English law offered a few models for slave laws in the western hemisphere,
but Spanish law would be the source for most early New World slave
laws. In Europe, canon law and Roman civil law were engrafted into Las
Siete Partidas, the thirteenth-century Spanish code compiled by Alfonso
X of Castile that would serve as the legal foundation throughout Spain*s
empire in the Americas, including Spanish territories that became part
of the United States like Louisiana, Texas, and California (and it remains
Spain*s central legal authority to the present day). An indication of slaves*
lowly status in Spanish society is that laws about lawyers, women, and
even abandoned children all precede laws about bondsmen, found in the
Fourth Partida. Slaves were defined as captives of war ※who are enemies
of the faith,§ that is, non-Christian, or the children of female slaves of
any faith. As in Africa, most slaves in Spain could not be distinguished
racially from their masters, and Spanish law did not define servitude racially.
The Spanish master was endowed with nearly complete authority over an
enslaved person, but was restricted from killing, maiming, or seriously
injuring a bondsman. Except for these few injunctions, Spanish codified
law was silent on many points 每 the proper religious instruction for slaves,
for example, or their right to marry, or their rights to food, clothing, and
shelter at their owners* hands. These omissions resulted from the relatively
small population of bondsmen found in early modern Spain, and possibly
from the overarching presumption that slavery was not intended as a lifelong
status, but a temporary one. Title XXII of the Fourth Partida specified
numerous methods by which a slave could obtain her freedom, for strong
presumptions pervade the code that ※all creatures in the world naturally
love and desire liberty,§ and that a Christian master would grant freedom to
a worthy slave. These presumptions in favor of freedom over slavery would
find their way into Spanish colonial laws, but would be lost in the sixteenthcentury
transmission of such laws from Spanish to English settlers in the
western hemisphere.
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 259
II. SLAVE LAWS OF THE CARIBBEAN
The Europeans who settled the NewWorld arrived with varying degrees of
knowledge of slave law and various justifications for those laws. The French,
Portuguese, and Dutch, like the English, set up colonies on Caribbean
islands or the mainland, but at the outset had few laws and no comprehensive
code to regulate enslaved persons. French coutumes proffered no law of slavery;
the Ordena¸coes Filipinas, the Portuguese legal compilation of 1643, contained
little more. The States-General assembly of the Netherlands issued virtually
no laws about slavery; any slave arriving in the Netherlands was automatically
free. The assembly preferred to leave such matters in the hands of the
privately controlled Dutch West India Company, which in turn left slave
control and punishment largely in the hands of individual masters. Only the
Spanish came to the western hemisphere relatively well equipped. Their Las
Siete Partidas mandated that children follow the condition of their mother,
prohibited atrocities by masters, and preferred emancipation. Regardless
of nationality, many European colonizers shared in the Christian assumption
that the ※curse of Ham§ justified the enslavement of Africans. Though
scholars such as David Brion Davis have questioned whether this specific
rationale actually swayed Europeans in the sixteenth and seventeenth centuries,
Winthrop Jordan and others have shown convincingly that racism
and greed persuaded many European enslavers to prey on Africans as slaves
to export to the NewWorld.
As the size of the Spanish empire in the western hemisphere grew by leaps
and bounds, so too did its slave population.With it came local regulations to
control slave activities and mandate proper behavior by slave owners. King
Philip IV ordered that all colonial Spanish law 每 including slave laws 每 be
gathered, digested, and published. The result was the first Recopilaci´on de
las leyes de los reinos de los Indias (1681), commonly called the Recopilaci´on de
Indias. The French also collected their local slave laws together in 1685 and
published them in the early eighteenth century as the Code Noir. But the
Code Noir, like the Recopilaci´on, was incomplete by itself. The slave codes
had to be supplemented by each colonizer*s national law, like Spain*s Las
Siete Partidas, and also by regulations crafted by district or city magistrates
who had the power to enact local slave regulations. Colonial officials passed
decrees that continued to encourage emancipation while placing numerous
restrictions on slave masters, but the extent of their actions remains largely
unknown. Because the sources of slave regulation were so numerous and
the laws themselves so scattered, no complete collection of Spanish colonial
slave law has ever been compiled.
For the Spanish colonial empire, the detail of local and regional enactments
has not been much explored 每 the historical record is too fragmented.
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260 Sally E. Hadden
It is known, however, that Spanish slave law expanded dramatically and
encompassed many more subjects than did English law for bondsmen. Historian
Elsa Goveia, expert on slave laws of the Caribbean, has asserted that
※[t]he English government never, until the nineteenth century, showed so
careful and sustained an interest in the subject of slave regulations as did
the government of Spain from earliest times.§
Despite the extraordinary diversity of slave law, each island, each
colony developed laws to regulate the conduct of bondsmen. By the midseventeenth
century, some islands colonized by the English, like Barbados,
had enacted their own slave codes (1661). In part, code development was
connected with the successful transition to raising a cash crop 每 sugar,
in this case 每 that fueled the rapidly increasing number of African slaves
imported by Caribbean colonizers. Careful examination of the Barbadian
code*s provisions reveals elements drawn partly from English legal conceptions
about bound labor and from neighboring Spanish and French island
slave laws. Barbadian colonizers who had not known slave laws in their
home country invented, transplanted, and borrowed eclectically, as necessary.
Codes, more common to the Roman legal tradition from which Las
Siete Partidas evolved than in English law, thus became integral to slave
control in English settlements.
In Barbados, the impulse to craft the code may have been inspired by the
rising population of bondsmen, By the 1670s, Africans had become a majority
on the island. However, the preamble to the ※Act for the Better ordering
and governing of Negroes§ speaks neither of slave demography nor of fears
of insurrection. White Barbadians instead stressed slaves* difference: their
※heathenish brutish§ behavior and tendency to run away had become insupportable.
The scattershot slave laws previously enacted had not ※mett the
effect . . . desired§ because masters and overseers had not ※beene so carefull
of their obedience and complyance§ as they ought. By enacting a comprehensive
code, Barbadian legislators hoped to draw the slave laws to the
attention of all whites, so that slave conduct would be better regulated
throughout the island.
Because the Barbadian slave code served as a model for codes enacted
in other English colonies 每 Jamaica (1664), South Carolina (1690/1691),
and Antigua (1697) 每 its contents merit close scrutiny. The twenty-three
articles covered several broad topics, but focused on the regulation of slave
movement, discipline, slave crimes, and protection of the enslaved. The
code did not address legal issues like purchase, sale, mortgaging, or other
financial transactions involving slaves: control, not commodification, was
the legislators* paramount concern. The law dictated the type of pass or
ticket slaves must carry when working away from their master*s plantation
and mandated that whites (owners and non-owners alike) were to inspect all
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 261
slave passes. In effect, this made all white Barbadians responsible for restricting
slave movement, a pattern that would be repeated elsewhere in English
slaveholding colonies. Bondsmen were expressly forbidden to leave the plantation
on Sunday 每 the one day when all slaves might expect a respite from
work. The code offered slaves incentives to assist in recapturing fugitives:
runaways would have to avoid not only whites, but their fellow bondsmen
too. Lacking a police force, seventeenth-century white Barbadians enlisted
all residents, white and black, against slave runaways. Fugitives, they knew,
might lead a slave revolt; punishments for insurrectionary violence included
the death penalty. If rebellious slaves were executed, however, the code specified
that owners would be monetarily compensated for their property. Such
was the pecuniary value of slaves that the colonial government effectively
insured masters against loss from state-mandated destruction of mutinous
bondsmen.
The Barbadian code provided that slave crime, up to and including murder,
would be tried not by jury but by a panel of justices of the peace and
several landholders, typically all slave owners. Penalties included whipping,
nose slitting, and branding and escalated for each subsequent offense up to
capital punishment. In reality the majority of slave crimes never reached
these tribunals, for masters had both the right and obligation to control
their bondsmen and could inflict whatever penalties they wished. The 1661
code offered no sanctions against masters who maimed or even killed slaves
in the course of punishment except for a fine if it could be shown the master
acted out of malice, a provision honored mostly in the breach. This lack of
oversight into owners* behavior was consistent with the rest of the code,
which included few requirements covering treatment of slaves. Food, shelter,
and medical care were left ※to the Discretion of the Owner.§ Relying
on masters* own financial self-interest to guide their care of bondsmen, the
code*s creators sought only to control slaves, not slave owners. That masters*
self-interest could not be relied on becomes apparent when one looks at the
revised code of 1688: Barbadian lawmakers began to penalize owners financially
for slaves convicted of crimes that resulted from systematic starvation.
If bondsmen stole or murdered due to hunger, their masters were ※in some
measure guilty of their Crimes,§ and the colony would consequently lower
the compensation paid after the slaves* executions.
The slave code of Barbados repeated several key features found in Spanish
and French colonial slave laws: higher penalties for crimes committed by
slaves than by free persons, extreme penalties for participating in insurrections,
and even the creation of a code itself rather than continuing to rely
on individual slave laws. But in governing masters* behavior, the English
colonists did not follow Spanish or French example. Historians Frank Tannenbaum
and Carl Degler have tracked the tendency in Spanish colonial
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262 Sally E. Hadden
laws to provide greater protections for bondsmen than English or, later,
American law. Spanish slave owners were required to provide adequate
food, clothing, and religious instruction to their bondsmen. If slaves wed,,
masters were required to honor the marriage vow and keep the couple
together. French slave laws specified food rations for slaves and protected
the Sabbath: no slave was to work on Sunday or any holiday observed by the
church. The 59th article of the Code Noir even stipulated that emancipated
slaves were to enjoy the same rights and privileges as the freeborn. Whether
such stipulations mitigated the harsh practices of slavery within the French
and Spanish empires is unclear, but no such demands or expectations were
made on Barbadian slave owners. Laws protecting slaves may well have been
ignored whenever masters chose, but their creation itself says much about
societal priorities. Ultimately, Spanish and French colonial laws, influenced
by the humanitarian efforts of the Catholic church, or by legal presumptions
found in the Recopilaci´on de Indias or the Code Noir, worked in favor
of treating slaves humanely, with an eye toward the eventual manumission
of bondsmen. No such religious or cultural influences, or common law
tradition, informed the legal choices made by English colonial lawmakers.
The creation of a slave code did not preclude the creation of other laws to
regulate bondsmen. Indeed, the enactment of a code may have made more
obvious the areas where deficiencies existed in controlling slaves. Two specific
matters surface repeatedly in later Barbadian laws and would reappear
on the North American mainland once white Barbadians began migrating
to South Carolina in the 1670s. Huckstering, the process by which slaves
sold goods at market, grew as the agricultural productivity of the island
increasingly focused on sugar. In an island society that exported a wealthmaking
cash crop by the ton, white farmers had little time or incentive
to raise enough foodstuffs to support themselves or their slaves. Through
the seventeenth and eighteenth centuries, plantation owners readily turned
to the thriving slave-dominated market culture where one could purchase
fish, fruit, and other agricultural products that bondsmen caught or grew in
their few unsupervised hours. Yet masters resented the prices charged and
voiced suspicion that goods vended had been stolen by their vendors. The
huckstering market also offered support to the island*s few free blacks, who
represented a security threat from the masters* perspective. Consequently,
repeated attempts were made to regulate, curtail, and even end the slave
markets, although with little apparent effect, for huckstering had become
too integral to the island*s economy. Anti-huckstering laws appeared in
various guises 每 laws regulating town sanitation, establishing days and
times when markets could legitimately convene, supervising town officers,
and creating market officials. Such regulations may appear to relate solely
to towns and markets, yet embedded within them were many measures
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 263
designed to dominate slave behavior. Characteristically overlapping and
sometimes contradictory, the nature of these laws suggests that Barbadian
lawmakers never managed to work out how to govern this aspect of slave
life. Both their multiplicity and repetitiveness serve as a reminder that the
laws passed for slave control were as much normative statements about what
white legislators wanted to happen as guides to what actually transpired
within slave culture.
A second deficiency in Barbadian law is suggested by lawmakers* recurrent
complaints that whites were failing to enforce the slave code and control
wayward bondsmen. Reliance on private, individual enforcement of
slave laws left the job to all whites: clearly, some simply did not bother.
While bondsmen certainly learned to distinguish between whites who
would enforce slave laws and those who would not, it took the Barbadian
assembly some time to recognize the deficiency. Eventually, lawmakers
began to transfer some power over slaves to third parties, authorizing
private slave catchers, and later militia-based slave patrols, to step in and
control slave behavior when owners and other whites would not. These
third-party enforcers of the law became essential as absentee ownership of
both land and slaves in Barbados grew more common. New legal provisions
were necessitated to empower slave hunters and quasi-police forces
to question, capture, and punish slaves in the absence of their masters. As
the dichotomous nature of master-slave relations was reoriented to include
state-mandated officials who could and did act in the place of owners at
the behest of other white community residents, protections for slaves from
abuse at the hands of non-owners, as well as compensation statutes to repay
owners for damaged slaves, would enter the law. Slave catchers and slave
patrols would also appear in British mainland colonies: after emigrant Barbadians
began arriving in South Carolina in the 1670s, they set out to craft
laws that drew on their Caribbean experience.
III. SLAVE LAWS ON THE NORTH AMERICAN MAINLAND:
INITIAL LEGISLATION
In the seventeenth and eighteenth centuries, slavery came to be acknowledged
as legal and legitimate in all British mainland colonies. In 1700,
approximately 30,000 slaves lived in British North America, almost 90
percent of them in the South; by the Revolution, some 450,000 enslaved
persons lived in the colonies, with more than 400,000 (the same proportion)
in the South. In contrast, the population of slaves in New England was
quite small, approaching 4,000 in 1715, and clustered near the seacoast.
But although the population of slaves was heavily skewed toward the South,
at the time of the American Revolution bondsmen could be found in every
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264 Sally E. Hadden
colony. Bondsmen frequently lived in Northern port towns like New York,
Newport, and Boston where their concentrated numbers led to specific laws
regulating their behavior, though not always comprehensive slave codes.
Historians of slavery in colonial America have focused too much on slave
codes. Much of the law binding enslaved persons developed in piecemeal
fashion, in multiple places, and in diverse types of legislation. Though
nine of the thirteen mainland colonies that would become the United
States enacted slave codes in the seventeenth and eighteenth centuries
(Massachusetts, Rhode Island, Connecticut, and New Hampshire were the
exceptions) single, topic-specific slave laws began to appear shortly after
the first Africans arrived at Jamestown in 1619. Colonies without slave
codes still had laws to control bondsmen. Both the development of cash
crops, like tobacco in Virginia or rice in South Carolina, and the colonial
world*s dire shortage of labor promoted the purchase of Africans in growing
numbers. Whether out of racism, greed, or fear, white mainland colonists
enacted slave laws to control African laborers.
The earliest mainland laws were created by Virginians, who drew on
Caribbean ideas while also inventing their own laws to compensate for
the absence of English models. Well before white Barbadians migrated to
South Carolina, Virginia*s assemblymen had begun passing laws regulating
Africans in many areas of colonial life. Their laws prohibited Africans
from keeping weapons (1640), defined the status of mulattos (1662), and
declared that baptism did not automatically grant emancipation (1667).
That such laws were deemed necessary at all suggests that some slaves did
keep firearms, that whites and Africans (and Native Americans) engaged
in interracial intercourse, and that Africans believed becoming Christian
would alter their status from slave to free. In Virginia, the cultural boundary
dividing slavery from freedom was crossed with greater ease before the
mid-seventeenth century, perhaps due to the presence of so many European
indentured servants and so few Africans in the earliest years of the
Old Dominion*s colonization. Indeed, it was not clear whether Africans in
Virginia had to serve only for a term of years (like an indentured servant) or
for life. Nor was it clear what the status of a child born to African parents
would be. The 1662 statute, on mulattos, made the boundary line sharper
and less easy to cross. ※Whereas some doubts have arrisen whether children
got by any Englishman upon a negro woman should be slave or Free§ the
assembly declared that ※all children borne in this country shalbe held bond
or free only according to the condition of the mother.§3
3William W. Hening, The Statutes at Large; Being a Collection of All Laws of Virginia from
the First Session of the Legislature, in the year 1619, 13 vols. (New York: R. & W. & G.
Barton, 1809每1823), 2:170.
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 265
This statute, and the 1667 law on baptism, drew some of their inspiration
from lawsuits commenced by bondsmen named Elizabeth Key in
1655/1656 and Fernando in 1667. In each case, Elizabeth and Fernando pursued
appeals through the Lower Norfolk and Northumberland county courts
and higher Virginia tribunals to gain their freedom. Fernando claimed that
he had been a Christian for years and that he should serve no longer than
an English indentured servant. The loss of General Court records leaves
the final disposition of Fernando*s case unknowable. More is known about
Elizabeth, daughter of a slave woman and a free man, who petitioned for
her freedom based on the common law tenet that children inherited their
father*s condition, that she was a Christian, and that she had served a period
of years equivalent to an indentured servant. Although her initial trial
ended unsuccessfully, her attorney appealed to the General Assembly, and
the burgesses ordered a retrial, at which time her so-called owners did not
appear and Elizabeth won her freedom. That Elizabeth and Fernando both
petitioned courts, in different counties, to have their Christianity considered
when judging their status as slaves suggests that Africans who became
Christian in the earliest period of Virginia history could indeed win their
freedom. This ran counter to the long-term agricultural and financial needs
of Virginia planters and helps explain the passage of a 1667 law preventing
conversion from freeing a slave. Likewise, Elizabeth*s common law claim
that her father*s status insured her freedom (and other cases like it) most
likely spurred Virginia*s assembly to pass the 1662 law declaring that children
would inherit their mother*s status (partus sequitur ventrem). This civil
law doctrine, which spread through the English colonies, trumped common
law for the financial benefit of slave owners and simultaneously stifled
lawsuits based on paternity 每 always less certain of proof than maternity
in an era before DNA testing. After 1662, an African in Virginia claiming
freedom would have to prove his mother was free at the time of his birth
or, like Benjamin Lewis in 1691, produce a written set of indentures that
ended his servitude after a term of years.
While white colonists in Virginia were sorting out who would or would
not remain in bondage, colonists elsewhere were explicitly proclaiming their
(short-lived) aversion to slavery through law. Massachusetts, Rhode Island,
New York, New Jersey, and Georgia all initially had laws that marked slavery
as an unwelcome institution in their colonies. Massachusetts in 1641 (in
the Body of Liberties) and Rhode Island in 1652 passed the earliest and apparently
most stringent laws barring slavery, but exceptions existed and in any
case the laws never stopped slave trading in either colony. Massachusetts
still permitted the sale of ※captives taken in just warres,§ which included
Native Americans, and Rhode Islanders developed the largest slave trading
fleet in North America, moving captives to ready markets throughout the
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266 Sally E. Hadden
Atlantic world. New York*s law, likewise, had little impact: in 1644 the
Dutch West India Company received a petition from eleven men it held
in bondage in New Amsterdam, asking for their freedom. The company
responded by granting half-freedom; the men were released but required
thereafter to give a portion of their produce to the company annually and
to work for wages whenever the company needed them. Georgia*s law banning
slavery actually emanated from the colony*s English trustees after its
founding in 1732. Free labor, it was thought, would benefit the colony more
than the productivity of slaves. But colonists living in Georgia complained
that they could not prosper like their South Carolina neighbors as long as
slavery was prohibited and repeatedly urged the trustees to lift the ban on
slavery. When the colony transferred from proprietary to royal hands in the
1750s, white colonists jettisoned the ban on slavery and adopted the South
Carolina slave code (written in 1740) virtually wholesale.
Generally, laws prohibiting or limiting slavery fell into disuse. Slave
owners in each of the five colonies where they existed simply ignored them.
By the end of the seventeenth century, for example, New York City had
become home to the largest enslaved population in the North. In 1706, New
Yorkers passed a law specifying that Negro, Indian, and mulatto slaves who
were baptized would not be emancipated, just as Virginia slaveholders had
done some forty years earlier.
Anti-slavery sentiment 每 in any case uncommon until the 1680s 每 was
routinely ignored in the seventeenth century. New World racism instead
inspired laws to keep the races separate and unequal. Colonies erected legal
barriers between the races by penalizing parents of mixed-race children and
ministers who married interracial couples. In 1663, Maryland passed a law
that imposed slavery on free white women or men if they had a mixed-race
child and in addition declared the child a slave for life. The growth of
Massachusetts*s interracial population by the eighteenth century was rapid
enough to move legislators to halt the mixing of races, lest a ※spurious
and mixt Issue§ become commonplace. A 1704 law stipulated penalties
for ministers who solemnized marriages between persons of different races
and prohibited all future marriages between whites and blacks (whether
slave or free). The early eighteenth century also saw several colonies pass
anti-manumission laws to stop slave owners from emancipating slaves no
longer capable of working. Connecticut, for example, required masters who
manumitted their slaves after 1702 to support any freed slave in old age if he
became unable to work and sustain himself. Clearly some owners thought
little of using a slave during her productive lifetime and then emancipating
her when she could no longer labor. Outside Connecticut, Massachusetts
(※An Act relating to Mulatto and Negro Slaves,§ 1703) prohibited masters
from manumitting their bondsmen unless they posted £50 as security, to
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 267
prevent persons freed from becoming a welfare charge to the community.
Maryland passed a similar law in 1752 to prevent owners from leaving
elderly and disabled slaves dependent on the general community for their
support.
It is important to note that ※slave§ law tended always to intertwine with
laws meant to control all ※marginal§ groups. In town governance statutes,
colony after colony created night watches and curfews to protect cities
against suspicious fires, illegal slave gatherings, and the questionable activities
of Native Americans and free blacks. Charles Town (later Charleston),
South Carolina, had such a night watch by 1671, and Savannah, Georgia,
had one after 1759. In 1703, Massachusetts enacted a curfew providing
that no ※Indian, Negro or Mulatto Servant or Slave may presume to absent
from the Families whereto they respectively belong§ after nine o*clock at
night. Violators were to be imprisoned and whipped and then returned to
their owners. In 1732, the Long Island town of Brookhaven forbade slaves
to go out at night at all. In 1737, Maryland likewise prohibited Negroes
or slaves from ※Rambling, rideing or Going a Broad in the night.§ Most
colonies mandated that bondsmen carry passes when they left their masters;
Connecticut began requiring passes in 1690 and in 1723 forbade nighttime
movement after nine o*clock with ※An to prevent Disorder of Negro
and Indian Servants and Slaves in the Night Season.§ That curfews, night
watches, and passes became necessary indicates that Africans and African
Americans were indeed out and about after dark and were frequently away
from the direct control of white owners. Whether the laws prevented nighttime
movement or slowed down slave mobility most likely depended on the
locality and relative degree of white supervision found there. That so much
law was directed at controlling these marginal groups suggests that white
lawmakers prized order highly, and feared or mistrusted what a society
without order might become.
Mainland colonies also encountered the same problem that confronted
white Barbadians: servants and slaves selling goods that might or might
not belong to them. In 1708, for example, New York barred bondsmen
from selling oysters. Some colonial lawmakers recognized that laws might
regulate slave huckstering more effectively if they targeted the purchasers of
goods. In 1708, Connecticut began penalizing free persons who purchased
any goods from ※Indian, malattoes and negro servants§ by setting the fine at
double the value of the item purchased. A 1741 North Carolina law prohibited
any person from trading goods with slaves. South Carolina lawmakers
had adopted a similar law to prohibit servant and slave huckstering as early
as 1687.
Laws treating slaves and indentured servants in similar fashion when it
came to nighttime meetings or selling goods should not be seen as conflating
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268 Sally E. Hadden
the two groups. Though both were seen as marginal and hence ※dangerous,§
other legal distinctions still set them apart. Servants retained the right to sue
in their own behalf (rather than through an attorney, guardian, or owner),
could give evidence in trials, hold property, and legally marry. All were
actions denied to slaves in the Atlantic seaboard colonies.
Just as they granted servants and slaves different legal capacities, owners
and legislators also distinguished between types of slaves. In the wake of
the Yamassee war of 1715, Indians from the South were exported to New
England for sale. Their violent behavior eventually caused Massachusetts
lawmakers to prohibit their importation to the colony for sale as slaves.
Connecticut took similar steps in 1715, blocking the sale of ※Carolina
Indians.§ Later, following the revolt on Saint Domingue (Haiti) in 1793,
South Carolina, Virginia, and other Southern states barred the importation
of slaves from the Caribbean island. Fearful that they would spread contagious
ideas about freedom, white lawmakers sought to ※quarantine§ Saint
Domingue slaves and prevent their contact with mainland bondsmen, who
might otherwise become ※contaminated§ with ideas about freedom borne
from violence.
Though Native Americans were caught up in the English colonies* regulation
of marginal populations, and in colonists* slave trading through
warfare both in New England and Carolina, the use of Native Americans
as slaves in the English colonies did not compare numerically with the
far higher incidence of African slavery. Native American slavery persisted
longest in Spanish-controlled colonies west of the Mississippi, where slave
law developed in relative isolation, cut off from English legal influences as
well as information about formal regulations emanating from either Madrid
or Spanish colonial outposts in the Caribbean. Slave raiding by tribe against
tribe remained common through the seventeenth and eighteenth centuries,
and even Spaniards ended up as slaves following native revolts against European
colonization in 1680 and 1696. Pawn-slaves also appeared in native
societies, as weaker Indian groups sometimes surrendered to stronger neighboring
tribes in return for food, shelter, and protection. Racial boundaries
between enslaved and enslaver seemed thin at best in the region, and among
colonizers, a lack of formal legal knowledge prompted improvisation. In
remote regions of Northern New Spain (near current-day northern Mexico,
Texas, and New Mexico) in the seventeenth and eighteenth centuries, the
absence of lawyers and trained judges turned local military officials into
adjudicators of the law on all matters, including slavery. When possible,
these military commandants referred to legal manuals if they had them, but
the absence of books in many outposts doubtless increased the haphazard
quality of legal knowledge regarding slavery throughout the region. Pressure
from Catholic priests and native peoples who comprised the bulk of
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 269
the slave population may have persuaded military leaders to continue the
Spanish legal presumption in favor of freeing enslaved persons, but more
research is needed to affirm this conclusively.
IV. SLAVE LAW ON THE NORTH AMERICAN MAINLAND:
CODES AND CRIMES
In Louisiana, France governed its colonists and slaves from 1699 until
1766, when the Spanish took control of the colony. The few slaves present
there in 1715 were Native Americans, although Africans were imported
in significant numbers in the years that followed. By 1731, about 6,000
African slaves worked in French Louisiana. The majority of Louisiana*s population
remained both black and enslaved through 1780. Piecemeal laws
issued from Paris and the 1685 code originally used in Saint Domingue
together inspired the creation of the Code Noir, designed to regulate slaves
and masters in the French Caribbean and Louisiana. Like the Recopilaci´on
de Indias, the Code Noir was more compassionate than the slave codes later
created by colonists in British North America, and its numerous references
to religion betray its origins in a Catholic society. For example, masters
were ordered to baptize their slaves, keep enslaved husbands and wives
together following marriage, and provide regular religious instruction for
bondsmen. Recognizing slaves* basic humanity and personhood, the Code
Noir nevertheless placed many restrictions on the enslaved. Bondsmen, for
example, could not possess firearms and were prohibited from trading any
goods without their masters* consent. Just as in Massachusetts, Maryland,
and Virginia, sexual contact between blacks and whites in Louisiana was
outlawed. Whites who attempted to marry slaves or free blacks were subject
to fine and punishment, and priests were forbidden to perform marriage
rites for interracial couples. Local ordinances passed in New Orleans eventually
supplemented this imperial system of laws. Despite the penalties for
interracial sex, cross-racial couples continued to flout the law through the
eighteenth and nineteenth centuries.
Like codes created elsewhere in mainland colonies, provisions of the Code
Noir also focused on slave crime, specifying the penalties to be imposed on
slaves found guilty of assault, arson, theft, and murder. Indeed, the various
codes created by mainland lawmakers all focused heavily on slave crime
and punishment because the codes* white creators assumed slaves were
inherently lawless. South Carolina*s second slave code, enacted in 1696,
declared that bondsmen had ※barbarous, wild, savage natures§ that must
be restrained. In Louisiana, capital punishment could be used if a slave
struck her owner or a member of her owner*s family. Typically the first
punishment for theft or possessing weapons was whipping, nose slitting, or
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270 Sally E. Hadden
ear cropping, whereas a second or third offense might merit branding or even
death. Murder or insurrection could attract the death penalty immediately.
Codes frequently resulted from an effort to organize the sometimes incoherent
mass of individual laws passed by legislatures in previous decades. As
each colony adopted additional legislation to regulate slaves* conduct, the
need to collate and systematize slave laws became stronger. Growing slave
populations also spurred the development of codes: lawmakers in South
Carolina (1690/1691 and 1696), Virginia (1705, 1723), and New York
(1712) enacted slave codes before all other colonies in part because their
enslaved populations were established early and grew rapidly. New Jersey
(1713), Maryland and North Carolina (1715), Delaware (1721), Pennsylvania
(1725), and Georgia (1755) all created slave codes in later years.
Georgia*s code was Barbadian at one remove: the colony*s legislators borrowed
the 1696 South Carolina code (largely based on the revised Barbados
code of 1688) almost in its entirety. Codes were often published as separate
pamphlets, sold individually by printers to interested whites and magistrates
charged with enforcing their provisions. Some legislators may have
pushed for codification to simplify conflicting provisions and to publicize
slave laws to recent immigrants or those unfamiliar with the scattered, fragmented
laws affecting bondsmen. In other instances, codes were updated or
renewed in the wake of events perceived as disastrous by the white community.
Following the Stono rebellion of 1739, in which twenty-five whites
died, South Carolina lawmakers revised and republished its slave code in
1740. North Carolina followed suit in 1741, as did Virginia in 1748.
Typically, colonial slave codes stipulated that slavery was inherited
through the mother (partus sequitur ventrem), lasted for life, and applied presumptively
to Africans, mulattos, and Native Americans. Codes repeated
and sometimes expanded on earlier laws that forbade interracial sex and
marriage; Maryland, Virginia, North, and South Carolina all stipulated
penalties for white women giving birth to mixed-race children in their
codes. Likewise, laws that denied manumission to slaves following baptism
or conversion usually were incorporated into slave codes. In the case
of Virginia, for example, the 1667 law enacted after the Fernando and
Elizabeth Key cases was included in Virginia*s 1705 slave code. Some codes
specified the precise manner by which manumission might be undertaken,
usually making it quite difficult. Elderly or infirm slaves often could not be
freed, and several colonies like New Jersey and Pennsylvania required the
would-be emancipator to post high bonds to guard against a former bondsman*s
indigence. Manumission often meant exile. Both South Carolina and
Virginia required the freed person to leave the colony or be reenslaved.
By contrast, Spanish law encouraged manumission and freed slaves could
readily remain part of the society where they were manumitted. In Spanish
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 271
Florida slaves could bargain with their masters to set a self-purchase price
(coartac´ıon) that masters were obliged to honor contractually. But whether
manumission was encouraged or frowned on, slave codes specified the course
of action that masters had to follow, no less than they regulated slaves.
Codes also applied to free blacks and mulattos, not just slaves. The specific
provisions in codes frequently used inclusive language to apply laws to
※all negroes,§ such that free blacks were affected by slave code provisions.
This continued the trend of earlier, piecemeal legislation that had indicated
white lawmakers* determination to regulate and control all marginal groups
within colonial society. Some slave codes also included penalties for whites
who attempted to aid blacks in insurrection attempts or enticed slaves to
run away from their masters. Disregard for property rights and a willingness
to take slaves away from the control of owners put any such whites outside
mainstream society; if they willingly colluded with rebellious slaves, such
whites who chose to ※forget§ their obligations to other whites could expect
harsh retribution. Punishments for whites who participated in insurrections
were routinely the same as those applied to bondsmen. Harboring runaways
and encouraging slave flight were also capital offenses in several colonies.
Inevitably, slave codes have come to be particularly associated with the
severe punishments inflicted on slaves for various crimes and the specific
tribunals by which bondsmen accused of felonies were tried. A white who
killed a slave in the course of inflicting punishment could expect to be
shielded from fines or trial in colonies like Virginia, North Carolina, and
Georgia. Enslaved persons accused of killing received precisely the opposite
treatment. In every colony, the punishments slaves endured were far more
severe than those imposed on whites accused of similar crimes. In North
Carolina, for example, a slave convicted of rape in 1770 was hanged, his
head displayed on a pole at a nearby fork in the road, and the rest of his body
burned. Castration was the alternative punishment to the death penalty for
North Carolina slaves convicted of rape or murder between 1759 and 1764.
Whites found guilty of rape or murder were neither maimed nor burned,
nor publicly exhibited after execution. In a thirty-five year period prior to
the Revolution, North Carolina courts sentenced more than one hundred
bondsmen to execution or castration for a variety of offenses 每 murder,
assault, theft, rape, arson, or flight. During times of rumored insurrections,
as in New York in 1741 after the discovery of an insurrectionary plot,
penalties imposed on slaves might be increased and their executions turned
into spectacular public rites. Bondsmen found to have been involved in
the conspiracy were sentenced to slow torturous deaths by such means as
impalement, starvation, or breaking on the wheel.
Colonial lawmakers created special slaveholders* courts to handle all slave
trials, not merely because they wanted the courts to convene without delay
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272 Sally E. Hadden
(particularly important during real or rumored revolts) but also because the
special courts could adopt their own practices and procedures in gathering
evidence and hearing testimony. In most cases, the slave codes reproduced
practices already established in this area. Pennsylvania, for example, specified
in early 1700 that two justices of the peace, together with ※six of the
most substantial freeholders of the neighborhood,§ should gather to try
all offenses committed by slaves, well before its 1725 code repeated the
provision. In South Carolina, slave courts included two or three justices
of the peace and three to seven ※substantial freeholders.§ Unlike trials of
whites, from which black testimony was excluded, both whites and blacks
might testify before slave tribunals. The use of torture to gather information
and evidence was sanctioned by several colonial governments, and virtually
no appeals were permitted. Punishments meted out were rapid and harsh,
although how arbitrary such justice might have been is hard to estimate.
The execution of a slave routinely required the colony to make good a slave
owner*s property loss, which would result in a higher tax bill for all members
of the tribunal weighing a potential death penalty. One solution that
required neither higher taxes nor freeing an accused slave was to mandate
transportation out of a colony*s territory. By requiring an owner to sell the
convicted slave out of his home colony, a slave*s potential for bad conduct
in the future would be passed on to another locale. Throughout the colonial
and antebellum eras, slave traders transported convicted slaves to the Deep
South and the Caribbean, where labor shortages continued, the slave*s prior
offenses were unknown, and a higher price was obtainable at the auction
block. Eventually, several Deep South states, like Alabama, Mississippi,
and Louisiana in the post-Revolution period, passed laws barring sales of
convicted slaves to prevent owners from dumping violent slaves in their
region, though the efficacy of such laws remains debatable.
As is true in modern society, the number of lawless individuals in the
colonial world was far outnumbered by those who were decent and law abiding.
The same was true for bondsmen. Many more were affected by curfew
restrictions, prohibitions on selling produce and other goods, or the rules
established on plantations by individual masters than by the criminal law of
slavery. Most slaves did not enter or testify before slave courts or endure the
brutal punishments they handed out. Those who were punished by slave
courts may have complied for reasons derived from their African backgrounds
rather than any coercion applied by court officials. African tribal
beliefs often fused together religious and legal proceedings, placing them in
the hands of an expert truth-finder from whom falsehoods could not be hidden.
What might Africans forcibly shipped to the NewWorld have deduced
from the rituals and forms associated with typical colonial American legal
proceedings? If they saw judges entering a courtroom, perhaps dressed in
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 273
robes, some Africans might have concluded that they were in the company
of religious figures, shamans, or truth-finders, endowed with supernatural
powers. The desire to tell the truth to such religious/judicial figures
may thus help account for the direct testimony that some colonial slaves
gave indicting themselves in legal proceedings. Confronted with testimony
about their wrongdoing, some African bondsmen may have admitted their
guilt to slave courts as a form of religious obedience 每 not because American
laws compelled them, but because African belief systems required it. By
ignoring the expectations or actions of slaves within the courts we overlook
the significance of collisions of multiple legal cultures, African and European,
within the realm of slave law. The criminal law of slavery, codified in
all its cruelty, tells us much about the white lawmakers who felt compelled
to organize and systematize their colonial slave laws. It says little or nothing
about what slaves actually did or what they thought of law and of legal
systems.
On their plantations, where their word had the force of law, colonial slave
owners were no less domineering than their antebellum counterparts and
drew up elaborate rules to guide the conduct of bondsmen. Indeed, some
masters repeatedly ignored aspects of the slave codes in order to impose
their own, sometimes contradictory, authority. Although North and South
Carolina (and later other colonies) prohibited slaves from hiring their own
time out for wages, masters 每 particularly those in cities like Charleston 每
frequently encouraged skilled slaves to seek paid employment so that their
wages could be turned over to owners in cash. Even as colonial laws barred
these hiring-out schemes, local ordinances diluted their impact, stipulating
instead that such slaves could only live in certain areas of town or work in
certain trades. Such refinements suggest that local lawmakers had a more
realistic assessment of urban slavery and the rules that should govern it
than colonial legislatures. Generally, slave masters exercised their powers
to the fullest in rural as well as urban areas, disdaining slave courts at will
or flouting slave laws, preferring the autonomy and sense of personal power
that slave owning routinely gave them.
We have seen that the actual enforcement of slave laws, whether criminal
or otherwise, fell to all white members of colonial society. This meant
that masters enjoyed considerable discretion not only in the detailed regulation
of slaves on their own plantations but also in determining how
far they would actually comply with the provisions of enacted slave codes
that policed the slave population at large. The earliest laws regulating the
conduct of bondsmen named no particular person or office to regulate slave
behavior: the assumption was that slave masters would simply impose enactments
on their bondsmen. A later generation of slave laws, as in Barbados,
specifically named all whites as law enforcers. All were to be responsible for
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274 Sally E. Hadden
checking slave passes and correcting misbehavior through physical punishment,
not just slave masters. Gradually, colonial lawmakers realized that
they could not rely on slave masters or whites throughout society in general
(without compensation) to enforce police laws preventing slaves from gathering
in nighttime meetings, huckstering goods, or moving about without
passes. Masters simply could not be counted on to implement all the laws
intended to bind slaves all the time. Beginning in late seventeenth-century
South Carolina and continuing through the eighteenth and into the nineteenth
centuries, colonial (and later state) governments and town councils
created slave patrols to take specific responsibility for enforcing the varied
regulations circumscribing slave conduct. Patrols, composed of owners and
non-owners alike, were employed in three- or six-month rotations, time
enough to gain detailed knowledge of the slave codes they were meant
to impose. Slave patrols operating in the growing cities and towns of the
colonial period routinely predated the creation of urban police forces in the
South and in some cases operated in their place, all the while focusing their
attentions specifically on the activities 每 legal and illegal 每 of bondsmen.
Slave patrol tactics, which frequently included riding at night and punishing
all slaves or free blacks they encountered, foreshadowed the post-Civil
War behaviors of the Ku Klux Klan.
V. SLAVE LAW IN A REVOLUTIONARY AGE
Although slave revolts and insurrections usually resulted in tougher slave
laws, as was the case after the Stono rebellion in 1739 and the New York
insurrection of 1741, the most dramatic changes in the mainland colonies*
regulation of bondsmen were precipitated by the stresses associated with
the American Revolution. The arrival of British and Hessian troops during
the war offered new hope to slaves seeking an alternative to a lifetime in
bondage. In November 1775, the royal governor ofVirginia, Lord Dunmore,
proclaimed that slaves belonging to rebellious colonists who chose to serve
the British army would be emancipated, triggering a flood of runaways
bound for the British lines. In consequence, slave patrols stepped up their
enforcement of the slave laws, and Virginia rebel authorities increased punishments
for recaptured runaways. Where earlier fugitives might have been
whipped by the patrols and returned to their owners, wartime runaways
recaptured in Virginia were liable to permanent confiscation by the patriot
authorities and placed at work in the state*s iron mines, where many of
them died. As the British army moved through different regions of America,
however, attempts to enforce slave laws restricting mobility after 1776
met with limited success; wartime enlistments drained men from slave
patrol rosters at the very time when slave runaway attempts skyrocketed.
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 275
Estimates suggest that as many as 50,000 slaves attempted to reach British
encampments during the course of the Revolution. Slaves who actively
aided the British and were subsequently recaptured were often executed for
treason.
The British offers made to American slaves had no humanitarian impulse
behind them, but simple expediency: a shortage of manpower and local
knowledge made slave workers invaluable. Rebel forces recognized that the
same potential source of labor could be put to work for their side, and several
Northern states, Connecticut and New York among them, offered slaves
their freedom if they enlisted with local militia units (with their masters*
permission). Maryland andVirginia also permitted slaves to enlist, although
emancipation was not offered. South Carolina and Georgia, meanwhile,
resisted all efforts to arm blacks. But in Northern regions, with two groups,
rebels and loyalists, effectively bidding for the military services of enslaved
men and offering freedom as the ultimate bounty, male and female slaves
may have realized that their moment to press for total emancipation had
arrived. Perhaps sensing that political winds had shifted in their favor, slaves
in Worcester County, Massachusetts, petitioned their local Committee of
Correspondence for freedom in 1775. The committee in turn pledged its
support to all efforts that might emancipate African Americans in the
future. A group of bondsmen in Portsmouth, New Hampshire, urged the
state legislature to end slavery throughout the state, but their petition
was tabled. Emancipation in New Hampshire would only come after the
Revolution.
In 1775, Samuel Johnson famously noted the irony of American patriots
complaining of their political bondage (being taxed without Parliamentary
representation) at a time when close to a half-million Africans or African
Americans were held in literal bondage by those same patriots: ※How is it
that we hear the loudest yelps for liberty among the drivers of Negroes?§
The irony was not lost on all white Americans, who in some cases began
to take action against the laws enslaving their fellow man. Before the Revolution,
the strongest advocates for emancipation had been the Quakers,
who in the early eighteenth century had agitated against slavery, with little
success. The spread of their egalitarian views on religion nevertheless
coincided with growing anti-slavery sentiment elsewhere in Europe. The
language of universal freedom and independence that flowered in the works
of Enlightenment figures like Baron de Montesquieu found a ready audience
in British North America. In his proposed Declaration of Independence,
Thomas Jefferson urged that George III should be indicted for the slave
trade, a ※piratical warfare§ conducted against ※a distant people who never
offended him§ who were now urged to ※rise in arms among us.§ He likewise
proposed that slavery should be abolished. Jefferson*s fellow delegates to the
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276 Sally E. Hadden
Continental Congress, however, were divided on these ideas: delegates from
Georgia and South Carolina blocked their inclusion in the final version of
the Declaration, revealing an early rift on the future course of emancipation
in the new nation.
Several states determined to strike out on their own course in abolishing
the international slave trade, making it illegal for ships carrying Africans to
enter their ports or sell their human cargoes. These actions were inspired,
in part, by the 1774 Articles of Association, designed to boycott all British
products and cargoes shipped in British ships. The second article asserted
that Americans would no longer participate in the international slave trade.
Virginia and Connecticut implemented the provisions in 1774, outlawing
slave importation and setting steep fines for ship captains found violating the
law. However, when emancipation bills were presented in the Connecticut
assembly, they were rejected 每 in 1777, 1779, and again in 1780. Halting
a state*s connection with the international slave trade was not equivalent,
in the minds of white lawmakers, with ending slavery altogether. Rhode
Island, a long-term participant in the slave trade, never passed a law banning
slave ships from its waters. However, after the Revolution several other
states followedVirginia and Connecticut*s lead: Maryland, for example, prohibited
further slave imports after 1783, and New York halted importation
in 1785.
Emancipation in Northern states would come through a mixture of constitutional
declarations and court cases. The first North American government
to end slavery by constitutional means was Vermont, which formed
an independent republic and ratified its own constitution in July 1777.
The first article of Vermont*s constitution rejected slavery as inhumane and
inconsistent with a free republic. Such rhetoric may have come easily in
Vermont. Fewer than 300 African Americans were living in the state when
it joined the United States in 1791. In Massachusetts, the first version of a
state constitution proposed in 1778 foundered during ratification because
it included language in its fifth article, on representation, that refused free
※Negroes, Indians, and molattoes§ [sic] the right of participation in elections.
Other aspects of the draft constitution were also controversial, but the
townspeople of Sutton, like residents of eight other towns, specified in their
return that ※the grand and Fundamental Maxims of Humane Rights§ were
diametrically opposed to slavery and that the new constitution must not add
to the ※Load of guilt§ lying on Massachusetts for permitting slavery or the
slave trade to exist. Citizens of Pittsfield instructed the next Massachusetts
convention that a new constitution must end slavery, and in the 1780 state
constitution, crafted largely by John Adams, the first right declared was that
※all men are born free and equal.§ The interpretation placed on these words
was unambiguous. William Cushing, the state*s chief justice, urged in the
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 277
Quock Walker freedom case (1783) that ※the idea of slavery is inconsistent
with our own conduct and Constitution.§ Although some scholars point to
QuockWalker as the end of slavery in Massachusetts, Cushing himself would
date its demise some three years earlier, to the adoption of the 1780 state
constitution.
Unlike Vermont and Massachusetts, most Northern states experienced
the end of slavery as a gradual, not an immediate event, brokered through
legislative compromise on the question how long slaves should serve their
masters before being freed as adults. During the Revolution, Pennsylvania
with its numerous Quaker residents took the lead in gradual emancipation,
creating a law to end slavery slowly after 1780. The legislature responded
not merely to the idealism of Enlightenment thinkers but also to pressure
from the first anti-slavery society founded in America in 1775, established
by prominent Philadelphians like Benjamin Franklin. Pennsylvania*s law
provided that all persons born to slave parents after 1780 would serve until
28 years of age, when they would be freed. Lower ages, of 18 and 21, were
originally proposed, but the legislative history shows that a higher age
was finally established to allow slave owners recompense for the expense of
rearing slave children from infancy.
Pennsylvania*s gradual emancipation model was reproduced in several
other northern states after the Revolution. Rhode Island (1784), Connecticut
(1784, modified in 1797), New York (1799, modified in 1817), and
New Jersey (1804) all adopted gradualist laws designed to emancipate
bondsmen while at the same time partially compensating slave owners for
their lost property by guaranteeing them terms of service lasting anywhere
from eighteen to twenty-eight years. The fa,mous slave orator Sojourner
Truth (Isabella Baumfree) witnessed this legal process and its effects firsthand.
Sojourner Truth*s Narrative, told through an amanuensis, recounts
how her children only gained their freedom after serving their masters
through adolescence and young adulthood. Many white observers considered
gradual emancipation to represent a less convulsive (and therefore
commendable) method of emancipation because it altered the legal status
of slaves piecemeal, one person at a time. In 1794, the Connecticut state
assembly considered abolishing its gradual emancipation program, begun
in 1784 in favor of immediate emancipation, but despite strong support
from advocates like Jonathan Edwards, Jr. and Theodore Dwight the measure
never became law. The inspiration for the immediate emancipation
project in Connecticut probably came from the Caribbean, where the ongoing
slave revolt on Saint Domingue (which began in 1791 and ended with
the abolition of slavery) had inspired a reconsideration of slavery throughout
the French colonial system. France*s revolutionary convention formally
abolished slavery in its colonies in 1794.
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278 Sally E. Hadden
Several other states considered ending slavery during the Revolution.
The most notable was Virginia, where legislators debated abolishing the
institution, but ultimately chose not to do so. In 1782, however, Virginia
lifted its restrictions on slave manumission, and the number of free blacks
in Virginia began to rise dramatically (from 3,000 in 1782 to 13,000 by
1792) as many masters took advantage of the law to free their slaves. But
anti-slavery sentiments in Maryland and Virginia could never persuade the
numerous slave owners who clung to their human property and defeated
measures to abolish slavery entirely both during the Revolution and in the
years that followed. The financial costs associated with compensating slave
owners for lost property rights, as well as the racism that served as the
foundation for many slave-related laws, swayed the Virginia assembly to
abandon any discussions of gradual or immediate emancipation. Indeed,
in 1806 Virginia*s legislature reimposed certain restrictions on manumission
by requiring manumitted slaves to leave the state in the year after their
emancipation or face reenslavement. Given that in 1790 Virginia and Maryland
were home to more than half of all mainland slaves (nearly 300,000 in
the first U.S. census), the failure to abolish slavery in its greatest stronghold
must be considered a lost opportunity of immense significance, one that,
if seized, would have decisively altered the nation*s history. Had Virginia
decided to end slavery within its borders in the 1780s or 1790s, the impact
of the decision on the rest of the South might have caused slavery to diminish
rapidly in the early nineteenth century.
The American law of slavery became more plural and more complicated
after the colonies achieved their independence from Great Britain, for now
the lives of bondsmen could be regulated not only by state laws but also by
national law. The Articles of Confederation (proposed in 1776, ratified in
1781) creating the first government for the United States acknowledged the
existence of slavery, but only indirectly and in a fashion that restricted any
potential national authority over the institution. The ※privileges and immunities§
clause (Article IV) applied only to the states* free residents; Article
IX*s ※treaties and alliances§ power forbade the Confederation Congress from
making treaties that would affect the import or export of any ※species of
goods or commodities whatsoever,§ which meant that Congress could not
enter into any international agreement to prohibit the Atlantic slave trade.
In general the terms of confederation made state sovereignty supreme (Article
II), so slavery and its abolition remained largely in the realm of state law.
After the RevolutionaryWar ended in the Treaty of Paris (1783), the new
confederation faced important problems in governing lands gained from
Britain as a result of the peace treaty. With England*s cession of all land
claims on the eastern side of the Mississippi, Congress found itself required
to create laws for territories beyond the jurisdiction of the existing state
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 279
governments. In 1784, Thomas Jefferson chaired a congressional committee
created to draft a plan for governing the newly acquired lands. Jefferson*s
draft legislation proposed that slavery be barred from all western territories
after 1800, but the provision was removed by Congress before the law*s passage.
Nevertheless, growing anti-slavery sentiments among Northern congressmen
could not be restrained, resulting in a compromise that provided
a temporary solution to the thorny problem. In 1787, Congress passed the
Northwest and Southwest Ordinances, dividing the western territory along
the Ohio River and mandating that slavery would be absolutely excluded
from lands north of the river. South of the Ohio, where the Southwest
Ordinance prevailed, the law was silent: in other words, Congress tacitly
accepted that slavery would likely spread to the territories of Alabama,
Mississippi, Tennessee, and Kentucky. The Northwest Ordinance also
included a provision (Article VI) that runaway slaves captured north of the
Ohio were to be returned to their slave masters. This language, later echoed
in the fugitive slave clause of the U. S. Constitution, required that residents
of Northern territories and states where slavery did not exist must still
respect the laws of Southern states binding African Americans in slavery.
As regional practices in the United States diverged on whether slavery was
legitimate or not, the respect for Southern slave laws required of Northern
※free§ states would prove an increasingly divisive issue.
VI. FROM ARTICLES OF CONFEDERATION TO THE
CONSTITUTION: SLAVERY IN THE NEW NATION
The impact of the Revolution on slavery in the United States should not be
minimized, for it represented a clear rift in the universality of slavery that
had prevailed hitherto. At the start of the Revolution, slavery remained legal
in all mainland colonies. By 1804, plans for gradual or immediate emancipation
were in place in each state north of the Mason-Dixon line. Gradual
emancipation did not work flawlessly. First, it was extremely gradual: in
1810, there were nearly 30,000 slaves still living north of Maryland, awaiting
the slow transition to freedom. Second, it could be highly arbitrary: take
the case of Lucy, a slave given her freedom by a Connecticut court only to be
reenslaved a month later. After her manumission her former owner returned
to court to complain that he had not known he would remain financially
responsible for Lucy, were she to become a pauper in her old age. The court
agreed to reverse Lucy*s emancipation. The court did not recognize Lucy,
an African American, as a full citizen of the republic, so her agonizing
journey from and then back to slavery caused it little concern. Nor, finally,
did the slow elimination of slavery in the North make much impression
on the racism endemic among whites toward African Americans living in
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280 Sally E. Hadden
their midst. Nevertheless, the critique of slavery as a violation of natural
law by Enlightenment writers and the spread of gradual emancipation in
Northern states, flawed as it was, would eventually reduce slavery from an
unquestioned universal practice to a regional ※peculiar institution.§
The regional quality that slavery was acquiring after the Revolution
became apparent in 1787 during discussions at the Philadelphia Constitutional
Convention.Weaknesses that had become manifest in the Articles of
Confederation since 1781 caused political leaders to propose a new form of
national government. In their constitutional debates, Northern delegates
found that they could not avoid discussing slavery, no matter how hard
they tried. Southern delegates consented to the use of euphemisms in the
Constitution in place of the words ※slave§ and ※slavery.§ But though the
words ※unfree persons§ or ※such persons§ were employed, slavery was clearly
part of the Constitution, notably in its apportionment of representation and
taxes (Article I) and its fugitive slave clause (Article IV). For purposes of
apportioning delegates in the House of Representatives according to population,
each state could quantify a slave as three-fifths of a white citizen;
attributing federal taxes payable by each state (split among states based on
total population) would likewise tally a slave as three-fifths of a white resident.
Two other provisions in the Constitution directly affected American
slavery. Article V restricted Congress*s ability to pass any law restricting the
international slave trade before the year 1808; Article IV required (as the
Articles of Confederation had) that each state grant ※full faith and credit§
to the laws passed by every other state. Laws passed in Southern states like
Georgia regulating slavery were to have full effect in Massachusetts and
elsewhere in the North.
Ratification of the proposed Constitution did not come immediately. Delegates
to some Northern ratification conventions pointed out that the new
document implicitly approved and sanctioned slavery, even though the
word ※slave§ might be missing from its pages. No clause generated more
furor than Article V, the restriction on the international slave trade 每 some
slavery opponents sought to ban transatlantic slave trading immediately
on moral grounds, whereas others suspected that the continued importation
of slaves would merely boost the South*s population and hence add to
its political power in the House of Representatives. Opposition to Article
V*s restrictions in the New Hampshire, Massachusetts, and Pennsylvania
ratifying conventions was, strangely enough, duplicated in a few Southern
states like Virginia and North Carolina, where continuation of the slave
trade was thought likely to increase the possibility of slave insurrections.
Ultimately, the twenty-year restriction on Congress*s power to ban the slave
trade remained part of the document.
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 281
Although Congress could not outlaw the international slave trade
until 1808, some national politicians began immediately attacking slavery
through other means. In 1794, the national government banned the
building of ships for use in the slave trade or the use of existing ships in the
trade. Ship owners found to have participated in the slave trade were to be
fined double the value of their investment in the ship. American sailors who
worked on American ships in the slave trade, if caught, were to serve two
years in jail and pay a fine of $2,000. Later this law would be augmented
to include American sailors working on ships of any country engaged in
the transatlantic slave trade. Widespread support, North and South, for
preventing the importation of African slaves in American ships made the
passage of such laws relatively easy.
Non-American slave ships nevertheless continued to enter ports of the
American South 每 with increasing frequency, as the ban on importation
drew closer. Congress would pass ※An Act to Prohibit the Importation of
Slaves into any Port or Place within the Jurisdiction of the US,§ on March
2, 1807, effectively expelling the international slave trade from American
ports as of January 1, 1808. In the twenty years before the ban, more than
200,000 new African slaves entered Southern ports, destined for lives of
servitude on southern plantations. Their arrival in the South coincided
with and may have been inspired by the invention of a more efficient cotton
gin in 1793, making agricultural production simpler than ever before. The
high level of world demand for cotton, coupled with the new gin, sparked a
migratory boom across the South, as numerous slave owners relocated from
the Atlantic seaboard to the fertile, cotton-growing Deep South. Flocking
to build new plantations in the Southwest territories, slave owners* demand
for slave labor grew rather than diminished in the early years of the new
nation.
As planters moved from the eastern seaboard to the territories of Alabama,
Mississippi, Arkansas, and Louisiana (and also pushed into Florida and
Texas, territories still controlled by European powers), they brought with
them the legal codes of their native states. Congress did not create slave
law for the territories 每 territorial legislatures had to come up with their
own. Just as the Barbadian code had been adopted by South Carolina in the
seventeenth century, Deep South territorial governments looked for existing
models of slave regulation to copy and make their own. In the early
nineteenth century, South Carolina*s slave code was rapidly adopted, either
in whole or in part, as the slave law of virtually all the newly formed territories.
Its racialized description of slavery, restrictions on multiple aspects
of slave life, and imposition of capital punishment for slave insurrections
and white murder spread rapidly throughout the Deep South.
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282 Sally E. Hadden
Unlike the other trans-Appalachian territories, Kentucky chose to adopt
portions of its slave code from Virginia and North Carolina. Subsequently
it invented new restrictive laws for slaves living near the Ohio River. As the
last great barrier between slave and free states, the Ohio River represented a
final hurdle for bondsmen running away to freedom. Kentucky lawmakers
responded by creating stronger slave patrols along the river*s edge to enforce
the slave laws there more effectively. New restrictions on bondsmen also
appeared in long-settled states, likeVirginia. In the wake of the unsuccessful
insurrection known as Gabriel*s Rebellion (1800), Virginia lawmakers in
the early 1800s placed additional limits on slave literacy and mobility.
Fear of slave rebellions continued to inspire Southern legislators to attempt
these new controls on slave behavior, but the laws remained ideals. Slaves
who already knew how to read could not be forcibly rendered illiterate;
bondsmen determined to violate curfews would not always be restrained.
Towns on the Gulf of Mexico and the Atlantic instituted additional
laws in the 1790s to prevent contact between local slaves and outsiders
carrying seditious tales of freedom. Following the successful slave revolt on
St. Domingue (Haiti) in the 1790s, several states restricted the movement
of visitors from the island so that emancipated Haitian slaves could not
circulate insurrectionary ideas among Southern bondsmen. Likewise, ship
captains who employed free black sailors learned on arriving in Charleston
and Savannah that their ※negro seamen§ were required to lodge in the city
jail during shore leave. Until their ships left harbor, African American
sailors who knew of a world beyond slavery could not be permitted to
mingle freely with the enslaved population of the South. Other Southern
port cities soon followed Charleston and Savannah*s example. Predictably,
abolitionist newspaper editors in the North reacted with rage and scorn on
learning that free United States citizens were being jailed in the South for
no reason other than the color of their skin.
Throughout the early period of America*s nationhood, comity in the area
of slave law became an increasingly difficult problem. Given that the bulk of
slave law was state-based, should Northern states where slavery had ended
(or would soon end) be required to respect the legal restrictions placed by
Southern states on African American slaves? Travelers from the Caribbean
or the South who arrived in states like Rhode Island or New York were routinely
accompanied by ※servants§ who were in truth slaves. Should those
slaves be immediately emancipated on arriving in free states, as slaves who
visited England would have been following the 1772 Somerset decision? Each
Northern state devised its own solution. Pennsylvania*s gradual emancipation
statute (1780) contained a six-month clause for just such a situation:
slaves accompanying visitors sojourning in the state remained bondsmen
for only six months. If a slave owner lingered in Pennsylvania longer than
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 283
six months, his accompanying slave was rendered free. Pennsylvania abolitionist
groups pursued an aggressive litigation strategy to free slaves who
had been in the state beyond the deadline.
As legal distinctions between Northern and Southern states in the realm
of slave law grew more pronounced, additional cases would test each region*s
commitment to maintain or abolish slavery. The fragmented nature of slave
law in America, so haphazard in the colonial period when slavery was almost
universally accepted, did not lend itself to the mediation of the growing
antagonisms of the late eighteenth and early nineteenth centuries.With new
states added in each decade of the nineteenth century, conflict between state
laws 每 and the increasing strain on comity 每 was only liable to increase. The
intensifying connections between Southern culture and slavery on one hand
and the North and free labor on the other served additionally to highlight
the gulf growing in state law. In the absence of a national law of slavery that
might reconcile differences, ever-worsening conflicts over slave law between
North and South seemed inevitable. That such legal conflicts could only
be resolved (as John Quincy Adams put it) ※at the cannon*s mouth,§ by
warfare, is suggestive of how strong each state*s commitment to its own
law of slavery or freedom became during the nineteenth century 每 and how
vigorously Southern states would fight to maintain their slave laws during
the Civil War.
VII. THE DIRECTION OF FUTURE SCHOLARSHIP
ABOUT COLONIAL SLAVE LAW
Histories written about American slave law in the colonial and revolutionary
eras have tended to cluster in two areas: the criminal law, as evidenced
by cases that reached the highest courts on appeal, and slave codes considered
in their entirety. A few historians, notably Thomas Morris, have
also considered how slaves were the subject of a wide array of conventional
legal disputes, as, for example, in the realms of contract, property, and
inheritance. And a small but significant body of studies has highlighted
connections between European legal regimes (e.g., Roman law, common
law) and the laws of slavery enacted by Caribbean and American colonial
assemblies. The triumph of English common law in the United States has
submerged the multiple legal systems that served as sources for slave law in
America*s colonial past. Ultimately, all previous studies of law and colonial
slavery have taken very seriously the formal, positive creation of law by
colonizing elites, and the implementation of these restrictive slave laws by
whites (acting either as individuals or in so-called slave courts) who punished
bondsmen when they violated these ideal precepts.With the exception
of Philip Schwarz*s Slave Law in Virginia, the only perspective recreated or
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284 Sally E. Hadden
considered recoverable by the vast majority of historians of colonial slave law
has been that of European enslavers and their white descendants. A signal
deficiency in each of these studies, therefore, has been the failure to consider
and describe the experience of American slave law from the perspective of
recently enslaved Africans, who were of course familiar with law in their
natal lands. It is reasonable to suppose that their legal knowledge affected
their expectations, understanding, and acceptance of American slave law as
applied by white slave owners. Histories of early America have increasingly
emphasized transnational or world historical perspectives, as evidenced by
the growing interest in Atlantic world connections. The parochial, topdown
approach of studying colonial and revolutionary slave law in America
(emphasizing either America*s exceptionalism or the indebtedness of America*s
slave law to European legal sources) should also give way to a more
inclusive legal-historical approach that acknowledges the legal expectations
of enslaved Africans as well as the Americans who kept them in bondage.
Analyses that give equal consideration to the legal perceptions and experiences
of the enslaved as well as the enslaver will need to accord greater
importance to the particular demography of Africans placed in bondage. Of
the roughly eleven million Africans taken captive and shipped to the New
World, some tribal groups were predominant. Recent studies of slaves taken
from Africa indicate that the ports of departure most frequently named on
slave ship manifests were in the Bight of Biafra, the Bight of Benin, or the
west-central region of Africa, near Loango and Angola. Some 60 percent or
more of all ships carrying slaves out of Africa left one of these regions, bound
for the Americas, whereas Senegambian captives (from the area between the
Senegal and Gambia rivers, farther north) accounted for another 10 percent
of all Africans sent to what would become the United States. From the
Bight of Biafra, one large group well represented among the many Africans
enslaved was the Igbo people. Therefore, it would make sense to concentrate
our attention on the Igbo approach to law (among others) to try to determine
what legal understandings of their own slaves taken from among the
Igbo might have brought to the slave law of the British mainland colonies.
In the case of Senegambian captives, similarly, we should learn more about
Muslim traditions within slavery, since the trade in non-Muslim slaves was
strong in that region.
In the future, scholars of slave law will be interested in more than just
how these West African customary laws might impose the status of slave
on a person or enable the status to be cast off. We must anticipate that
Africans encountering American slave law would have known not only
specific principles of law, but would have framed their conceptions of law
within a legal philosophy, an overarching theory that made sense of the
entire legal system within their society. We should look for indications of
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 285
the underlying principles that guided legal relations, conceptions of guilt
and innocence, and presumptions about human nature. For instance, the
Igbo believe that there are both divine and man-made laws, but that the
greatest penalties are reserved for breaches of divine law. Thus, a murderer
would not be put on trial, because if the evidence were clear and convincing
no earthly court could have jurisdiction. Indeed, the penalty prescribed
by Igbo tradition is that the murderer is expected to hang himself. Igbos
placed on trial by slave owners for certain crimes may have experienced some
conflict in their own minds about the legitimacy or jurisdictional claim of
the colonial court, for any Igbo guilty of breaking a divine law would be
required to do penance personally to be restored to the good favor of the
gods.
To learn more about how Africans perceived their own legal systems (and
thus, what they may have thought on encountering American laws), analysis
of firsthand African accounts will be necessary. As one example of what is
possible, an excellent account of the early civil and criminal justice system
of the Yoruba people, from the area of modern-day Nigeria, can be found
in the words of Osifekunde, a man sold into slavery who eventually told his
story to a French ethnographer, D*Avezac-Macaya, in the early nineteenth
century.
Given the limited nature of firsthand evidence, investigation of African
perceptions of the colonial legal system may not be capable of rising above
the inferential. Nevertheless, if inference permits the construction of a
more inclusive picture of the legal cultures in contact during the colonial
and Revolutionary eras we should not hesitate. Rather than assume that
the only perspective and legal culture that matters is that of the white
colonizer, slave owner, and lawgiver, future studies in this area must pay
more attention to the customary laws of slavery in Africa and the information
to be gleaned from travelers, explorers, and traders who visitedWest Africa.
Likewise, surviving local court records found in many state archives for
criminal trials demand much more attention from scholars. Published legal
reports of criminal cases decided on appeal cannot substitute for the entirely
distinct legal world of the lower courts during initial trial hearings and the
records they generate. These case files, though incomplete and sometimes
frustrating, contain the information necessary to recapture the lost voices
of Africans and African Americans encountering a European-designed legal
system for the first time.
CONCLUSION
The creation of slave laws in the New World resulted from longstanding
European intellectual and religious traditions that justified using coercion
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286 Sally E. Hadden
against strangers. The Bible, natural law, and just war theories provided the
rationales used by enslavers to legitimate the capture or retention of bondsmen
in the early modern period. These widely shared beliefs, buttressed by
racism, fear, or greed, provided Caribbean planters, the first British colonizers
to invest heavily in slave labor, with the mental framework necessary to
craft slave codes in the mid-seventeenth century. Their codes did not include
every possible area of slave law that could be addressed 每 they tended to
focus on criminal activity by slaves, rather than the commercial aspects of
slaves as property 每 and historians have fixated on them often to the exclusion
of individual slave laws enacted locally or passed by colonial assemblies
in piecemeal fashion. Slave laws typically affected many individuals besides
bondsmen, such as free blacks and servants, because lawmakers, somewhat
naively, hoped to regulate and control the behavior of all marginal groups.
Their codes were idealized statements of what white lawmakers hoped for,
rather than reflections of actual law in practice; this can be seen in the gradual
shift in enforcement, from reliance on voluntary adoption by masters
to compulsory requirement for all masters and overseers. Eventual resort to
slave patrols as a supplemental enforcement group suggests that, whether
acting under a voluntary or compulsory regime, masters and overseers failed
in their duties. Ideal standards of lawful behavior were met by neither slaves
nor their white masters.
The fragmented background to America*s slave law, drawn from French,
Spanish, and English sources, did not yield a unified or comprehensive
slave law in the colonial period. Gaps and omissions always remained;
colonies fumbled to create new regulations as they were needed. Laws to
regulate huckstering, to prevent intermarriage, and to restrict freedom
following conversion to Christianity came into being as novel situations
arose and demanded legislative solutions. Even colonies that had no slave
codes restricted slave movement through curfew laws; these regulations
probably affected many more bondsmen than did criminal laws. As we
have just seen, little is known about how Africans themselves viewed slave
laws. The addition of new voices to the tale of early America*s scattered slave
law in the colonial period, the voices of African slaves describing the law
or their legal expectations, may prove difficult, yet this basic shortcoming
of extant scholarship on slave law must be redressed.
The universal acceptance of slavery in the colonial period gave way to discord
in the Revolutionary era, as several Northern states moved to embrace
gradual emancipation. A fundamental shift in the moral acceptability of
slavery took place, as Quakers and other religious groups joined forces
with Enlightenment philosophers like Montesquieu to undermine slavery*s
legitimacy in Europe and America. In the years after 1780, what had
once been universally believed 每 that slavery was justified religiously and
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 287
philosophically 每 no longer held true, at least in states north of Maryland.
These states began to abolish slavery by repealing its legal underpinnings.
Where the fragmented origins of American slave law had once given way
to comprehensive laws and codes restricting the behavior of bondsmen, a
regional breakdown in the acceptability of slavery began to erode commonality,
giving rise to a new round of fragmentation. This splintering
at the state level, with some states still supporting slavery while others
abandoned it, was not superseded by a national law of slavery that would
regulate bondsmen in all states. The Constitution, like the Articles of Confederation,
left slave law to the individual states and required little more
than that states give full faith and credit to the laws of other states. As
the federal government moved to close off the international slave trade in
1808, new states in the Deep South lined up for admission to the union,
each with a slave code that echoed restrictions found in the South Carolina
or Virginia codes of the eighteenth century. Even as widespread acceptance
of slavery and its legal underpinnings diminished in the North, in regions
where enslavement was still permitted its supporters increasingly turned to
the law for reassurance and reinforcement. Meanwhile, new states admitted
under provisions of the Northwest Ordinance swelled the number of nonslaveholding
states north of the Ohio River. The absence of a national law
of slavery set the stage for greater conflict about comity in the antebellum
era, when Southern and Northern states would battle to see which state
laws would prevail in repeated contests over slavery.
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9
the transformation of domestic law
holly brewer
Law has a peculiar tendency to normalize social relations that are in fact culturally
distinct in different societies and eras. There is no better example of
this tendency than domestic relations. Following common law norms, legal
historians have largely portrayed a particular domestic order as peculiarly
unchanging, indeed as private and ideally inviolate. In an abstract sense
domestic order may thus seem to be outside the law. The law*s very success
in normalizing family relations has obscured its own agency in shaping
them, rendering its own role in historical and cultural change mysterious.
In England and its colonies in the early modern period, the law 每 both
common and statute 每 regulated domestic order in many and profound
ways. That regulation was also the subject of intense dispute. Laws defining
domestic order circumscribed many people*s lives from birth through death,
shaping their status and mandating appropriate behavior 每 for women and
children; for workers, servants, and slaves; and indeed for husbands, fathers,
and masters. Relationships, particularly the status of ※dependent§ groups,
usually thought of as static throughout the colonial and early national
periods of American history, and in early modern Britain too, were recreated
over the course of the eighteenth century through common law justifications
of a particular domestic order. These acts of creation occurred during a
period of dramatic struggle over the basis of authority, not only over abstract
political authority but over the rules that should govern the household and
indeed over the very definitions of household and domestic. The results
diminished the legal powers of lords and masters and increased those of
fathers and husbands. These changes were accomplished with a legal sleightof-
hand that made the powers of husbands and fathers seem eternal within
the common law and obscured the frequent conflicts between the authority
of masters and those of fathers and husbands. The new legal regime was
built on a fiction that the rights of kings, lords, and masters were essentially
the same and that all were variations on the same patriarchal absolutism
that was itself a celebration of fatherly authority. In reality the rights of
288
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kings, lords, and masters were often in conflict with those of common men,
women, and children. Consequently, the struggle over domestic space and
authority was central to a larger struggle over rights and political authority.
To understand how law could normalize a particular domestic order, one
must first sketch the vision of that order that emerged in the late eighteenth
century. This was a moment of peculiar influence for the common law, and
especially for its main expositor, SirWilliam Blackstone. The first professor
of law at Oxford University, Blackstone is best known for the grand synthesis
of the common law he completed in the 1760s. Blackstone*s synthesis was
profoundly influential in America no less than in England. He was cited
more in American newspapers of the 1790s 每 that critical period of the
creation of state constitutions and legal norms 每 than any other thinker,
including Locke and Montesquieu, the sages of previous decades. At the
end of the eighteenth century, Tapping Reeve, founder of the first American
law school in Connecticut and author of the first American treatise on
domestic law, posed neat, parallel categories of domestic order under the
common law drawn straight from Blackstone: child/wife/servant appear
ranged beneath father/husband/master. The head of household speaks for,
orders, and controls those under his roof: they are his property and speak
(if at all) only through him.1
Reeve claims to be portraying the common law of household relations as
they existed throughout the colonial period and in England. In fact, he is
largely reproducing both Blackstone*s categories and his portrayal of them
as unchanging. Blackstone had ordered in parallel the powers of masters
over servants (first), followed by the powers of husbands over wives, parents
over children, and guardians over wards (a lesser category). In each category,
Blackstone set up the same order of identity and obedience, consistently
denying the ability of the lesser person(s) to have legally independent judgment.
Take, for example, the rule of husbands over wives: ※By marriage,
the husband and wife are one person in law: that is, the very being or legal
existence of the woman is suspended during the marriage, or at least is
incorporated and consolidated into that of the husband: under whose wing,
protection, and cover, she performs everything.§2 Blackstone even claimed
that a married woman could not testify against her husband. In his eyes
this act was equal to self-incrimination.
Blackstone*s changes built on more than a century of common law arguments
that had begun to prioritize the rights of persons and the idea of
1 Tapping Reeve, The Law of Baron and Femme; of Parent and Child; of Guardian and Ward;
of Master and Servant; and of the Powers of Courts of Chancery (New Haven, 1816).
2William Blackstone, Commentaries on the Laws of England [London, 1765], facsimile ed.
(Chicago, 1979), 1: 430.
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290 Holly Brewer
consent 每 at least for those he held to be able to consent. His efforts harmonized
earlier treatises and decisions in a fashion that made the common
law more coherent, but at the expense sometimes of those persons he considered
※dependent§ on others. With respect to children, his logic is more
persuasive. In his attempt to rationalize norms across categories, however,
he ended up excluding workers and women (whom he also categorized as
dependent) from obtaining many of the rights 每 and the ability fully to
consent 每 that he elsewhere privileged.
Historians have allowed that during the seventeenth and eighteenth
centuries some change in the legal rules of domestic hierarchy occurred
with respect to servants, employees, and slaves 每 more in America than
in England itself. Masters* powers declined, it is generally thought, along
with a tendency to glorify ※free labor.§With regard to the remainder of the
head of household*s powers, however, only very minor regional variations,
or ※deviations§ arising perhaps from social factors, such as longevity, the
frontier, or the shortage of women, have been admitted. Generally, the
organization of households in places like Puritan New England has been
treated as good evidence for unchanging patriarchal legal power.
In fact, common law rules of domestic hierarchy were far from static.
Just as masters* authority over servants, slaves, and workers was debated, so
were the other aspects of domestic order. Throughout the seventeenth- and
eighteenth-century Anglo-American world, the norms of domestic authority
changed in response to some of the same forces that shaped contemporaneous
debates about political hierarchies. Reeve and Blackstone, in other
words, represent not stasis but the winning side in a fierce argument over the
proper boundaries of household government and of personal identity. Socalled
deviations often expressed hotly contested struggles over legal norms
that had everything to do with political order, not simply with domestic
order.
To understand these developments we must begin by focusing on the
power of masters. Reeve*s triptych is neat but misleading. When we separate
the authority of masters from that of husbands and fathers we can begin to
measure 每 and to imagine 每 the extent of the change in the law of household
government.
The fundamental change that occurred during the seventeenth and eighteenth
century was that the legal powers of masters (or as the legal guides of
the seventeenth century called them, Lords) were extended to men as fathers
and as husbands. While this was happening, the powers of masters were
changing 每 ameliorating in some ways, consolidating (depending in part
on whom the master had power over: slave, servant, or employee) in others.
Despite the revolutionary challenge to hierarchies in the broader political
order, standard invocation and interpretations of the common law tended
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The Transformation of Domestic Law 291
to substantiate and increase many aspects of domestic hierarchy, including
even that of employers over employees. Overall, the common law developed
simple parallel categories that tended to increase the power of the patriarch.
New hierarchies came into being alongside older ones.
Largely outside the common law, meanwhile, revolutionary reforms and
principles undermined older assumptions about status by idealizing consent
and equality. Ideally, relations between adult men would be based on
contracts, freely entered. Contract challenged the principle that one was
born into a status that the law would confirm. Instead, adult men would
gain some influence over their status at work and more control over their
wives and children. Men as fathers, that is, gained grounds to challenge
men as masters, such that poor children, for example, might not be as easily
removed from their fathers and forcibly apprenticed.
The heritage of the Revolution and the legislative reforms that followed
in its wake proved to be more ambiguous for women and children. Their
opportunities to choose their status were sharply limited: women could
choose mostly at marriage, and children not at all. Also, for some adult
men 每 and certainly for their wives and children 每 these norms did not
apply at all. They were slaves, not ※free laborers.§ They did not possess
legally recognized marital rights or custodial powers over their children.
Their master owned both. Slavery became the major continuation of older
common law norms about the rights of Lords.
Once this history is unpacked, it is apparent that the domestic law of the
early nineteenth century was more complex than Reeve*s simple presentation
suggests. Many of his categories highlighted the principle of consent.
In the same breath they raised a fundamental question: whose choice? Blackstone*s
common law allowed choice for some, but not others.
A final preliminary. Both inside and outside the common law, we shall
see, many of the principal reformers who rose to challenge the rights of
Lords in the seventeenth century (who argued for the rights of men) were
from Puritan or dissenting backgrounds. In both America and in England,
the political and legal debates of the seventeenth century had religious
dimensions. Puritans and dissenters voiced the most profound challenge
to the rights of Lords and argued for the rights of husbands and
parents. Migration and civil war created opportunities to put new practices
in place, first in Puritan New England and then in England during
the Interregnum. Many of the most important common law legal reformers,
men like Sir Matthew Hale, came from dissenting backgrounds. Their
arguments combined with the larger debate in democratic/republican political
theory that challenged the rights of birth, of Lords, and especially of
the divine right of kings. Religion, politics, and law were in many ways
conjoined.
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292 Holly Brewer
I. THE OLD COMMON LAW
In the sixteenth and seventeenth centuries, throughout Anglo-America,
the family was the basic unit of society. Perhaps that has always been true.
Yet, relations of power within families 每 and the question of who is to be
considered a member of which family 每 have differed dramatically across
time and culture. In England and in its North American colonies, the
family unit was composed of a master, his servants and slaves, his wife and
his children, and sometimes his children*s or his servants* (and normally his
slaves*) families. In the earliest period, the household master*s powers were
defined most clearly in application to non-kin 每 servants. The household
mistress (the master*s wife) had similar powers. Thus, authority accorded
primarily to rank. The powers of husbands and of fathers were much less
well defined: the child of a servant usually did not belong to the servant,
but, at least in a legal sense, to the master.
These basic statements reflect a profoundly hierarchical society. Within
Anglo-America in the seventeenth century, however, a great debate raged
over the powers of masters qua fathers and husbands and 每 more broadly 每
parents who questioned this hierarchy. The debate took place within a
society torn apart by religious conflict. In areas where religious radicals
gained control, notably early New England and later colonies like Quaker
Pennsylvania, they adopted contrarian norms.
In taking seriously the mainstream rules that prevented servants and
slaves from forming legal families of their own, we begin to grasp the
broad picture of Anglo-American colonial life, particularly as it developed
in the South, outside the dissenter colonies. To grasp it fully, we must
also recognize how different the powers of fathers and husbands were from
those of masters. The rights of wives, of children, and of servants were also
distinct. Each step away from Reeve*s normalized post-eighteenth century
perspective can transform our view of authority, of liberty, and of the family,
especially if we then pause to survey the panorama before us.
The Status of Servants in Anglo-America
Sixteenth- and seventeenth-century England had a well-developed principle
and practice of legal servitude. Statutes made labor obligatory for many
landless people. Inheritance laws that governed the transfer even of rented
land privileged the oldest son and deprived others of the ability to own land
themselves. Whereas small holders and tenants had held real claims on land,
even if their property claim was part of a multilayered ownership, efforts
to ※enclose§ land vacated their ancient common law use rights in favor of
the ※greater§ claims of lords. These larger property rules and practices are
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The Transformation of Domestic Law 293
critical because most people made their living from the land. Lack of access
to land meant that many people had no choice but to work for others as farm
laborers or domestics. If they refused to work, they could be forced under
vagrancy statutes into contracts of a year, or of many years, depending on
their age.
At the dawn of its seventeenth-century colonization of the New World,
England suffered from significant poverty. By some estimates, half the population
was poor. Primogeniture, enclosure, and the dissolution of the older
Catholic system of caring for the poor with the Reformation added up to
a near crisis. Contemporary tracts and court records dwell on the problem
of vagrants. The laws were harsh. There was no minimum age for forced
service: by Elizabethan statute, a child of any age could be imprisoned until
he or she signed a contract agreeing to labor until the age of 24 for a boy
or 21 for a girl. The only questions were the poverty of the family or individual
and whether anyone actually wanted their labor. The laws did not
always work to the advantage of landowners: stories were told of masters
forced to accept unwanted laborers. Perhaps so. Yet it is clear that the laws
that denied ownership of landed property to one group and simultaneously
made them the partial property of others are central to understanding the
legal principles undergirding authority and domestic order in England and
its colonies.
By these principles, hierarchy regularly trumped kin-family relations.
Masters and mistresses often had authority over others, including others*
children and others* wives and husbands. The elements of domestic hierarchy
that we tend to assume went hand in hand 每 the powers of masters and
those of husbands and fathers 每 were thus often in direct conflict. This was
not true of all families of course. England had many tenants and smallholders
who were not directly ※in§ the household of others and had their own
separate families. Servants who ※lived in§ with their masters and mistresses
were of course much more dependent than tenants. However, landlords
often had claims over smallholders that made these men and women dependent
on them in various ways. To acknowledge this dependency, which was
often legally explicit and had important cultural and political consequences
(such that those who were dependent on others were not allowed to vote),
is to begin to understand that domestic order had a broad, multilayered
legality.
Principles of dependency were eminently transportable. Consider the fate
of some of the first immigrants to Virginia. Faced with a shortage of voluntary
immigrants and not much money, the Virginia Company persuaded a
number of London churches to participate in a benevolent enterprise. The
Company argued that children who had been apprehended for the crime
of ※vagrancy§ (not having employment) should not be apprenticed locally.
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294 Holly Brewer
Instead the churches should pay for them to go to the New World and
work there. In exchange, the Virginia Company promised that at the e,nd
of their service of seven or more years, the children would be given land, a
reward unheard of in England. The churches agreed to underwrite the costs
of passage. Unfortunately, the laws of England in 1618 required that the
children themselves sign the labor contracts, and many refused to do so. To
circumvent this restriction, the Privy Council granted a special exemption,
forcing the children to go to Virginia and serve masters. Neither the laws
nor the Privy Council required the consent of their parents. Of course, on
some level this was really charity by the London churches; the parishioners
thought they were offering the children a chance at a better life, including
not only land but also training in ※husbandry§ (farming). Children needed
such training to make a way for themselves. The very premises of the policy,
however, revealed a society in which the labor of some for others in a
property relation was normal, rank was central, and the integrity of poorer
families unimportant.
The story also incorporates the promise of free land 每 symbolic of New
World opportunity. One of American history*s most durable myths is that
land was free and abundant throughout the colonial period, undermining
like nothing else the status relationships of the mother country. Though
land was free at times, access was often controlled. Virginia*s initial promise
of land to freed servants, for example, changed after 1618. Masters thereafter
received a ※headright§ 每 free land for each servant imported 每 a very different
bargain that offered much less opportunity to the servant. While other
colonies, like Maryland, continued to allow freed servants to claim land,
the claims still had to be surveyed and granted through the secretary*s
office, a costly process. Former indentured servants were more likely to
end up long-term tenants than landowners. This was especially so in the
Southern colonies, where migrants were largely servants.
Long-term tenancy was of course an improvement on servitude. For
whites who survived their servitude, the colonies offered better opportunities
than England. Yet, servitude remained widespread. Indeed, once we
include slaves 每 blacks and captured Indians 每 in the calculation, the percentage
of the population in servitude was much higher in the colonies,
particularly in the South, than in England. Correspondingly, the laws circumscribing
servitude of all sorts became increasingly complex and rigid
over the course of the colonial period. Every English colony routinely sanctioned
slavery and indentured servitude as well as local apprenticeships.
The laws tended to be more elaborate in the Southern colonies, with more
complex slave codes and more enforcement, but the legal structures of servitude
每 including the legal sale of people (both white and black) and the
legal capture of runaways (both white and black) 每 were similar throughout
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The Transformation of Domestic Law 295
British North America. White servants could complain of mistreatment
to authorities (unlike slaves), but masters could punish both servants and
slaves corporally 每 indeed could even kill them without penalty if death
occurred during the course of punishment.
While the authority of the head of household was strongest over his
servants, a great deal depended on the type of servant or employee and the
status of that person. In the colonies, many white laborers (if born there or
once freed from their initial indenture) could negotiate contracts that gave
fewer privileges to their employers and did not place them firmly under a
master*s control. In England, in contrast, by the early eighteenth century,
new restrictions were emerging that brought more forms of employment
within the rubric of master/servant relationships, including many protoindustrial
occupations, such as piecework and weaving. Even employees
who did not live with their employers began to be seen 每 both at statute
and common law 每 as governed by master/servant relations, with masters
being given much greater privileges over their workers.
How was the role of head of household acquired? Status (derived from
land ownership, militia or other title, financial resources, or age) played
an important part. A wealth of records and studies indicate that whether
an individual became a servant 每 or a master 每 depended greatly on status.
Service was partly a life-cycle phenomenon, in that many servants
were adolescents or adults younger than 25, saving to marry. But not all
youth underwent a period of service. Indeed, many masters were youthful
themselves. Although service, then, has been properly recognized as a part
of the life cycle of poorer and middling people in England, it was not a
※natural§ institution. Rather, service was an institution designed to benefit
elites.
Though widespread, most people did not enter into service for others,
even as children. Some entered high-status apprenticeships controlled by
guild companies or became mercantile clerks 每 but access to those positions
was restricted. Elite families, and landowners generally, did not place their
children in service to others. In seventeenth-century England, domestic servants
were perhaps 20 percent of the total population. Many of these were
adolescent life-cycle servants, but by no means all: in some districts 25
was the average age of domestic servants. Even when adolescents entered
adulthood and finished ※official§ domestic service, the wage labor they
entered could be poorly paid, condemning the laborer to life on the margins,
unable to support a family. Especially before 1660, harsh vagrancy
laws forced people into labor, or even transportation, simply because of
poverty. Circumstances changed somewhat after 1660, when the poor law
system began to emphasize returning people to their place of settlement,
but punishment for vagrancy remained an issue.
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296 Holly Brewer
In the British mainland colonies, the proportion of those in servitude
grew even higher. Some 44 percent of the white population of 1620sVirginia
were servants. However by 1700 the proportion had fallen to perhaps
10 percent (about 4 percent indentured servants from England and perhaps
6每10 percent native-born apprentices, mostly to farm labor). If slaves
are included, of course, by the middle of the eighteenth century in Southern
colonies like Virginia and South Carolina, more than half the total population,
white and black, were domestic servants or slaves. In mid-Atlantic
colonies, such as Pennsylvania and New York, and in New England, the
proportion of servants and slaves in the total population was always lower 每
lower migration rates of indentured servants, lower binding rates for apprentices,
and lower numbers of imported slaves. To be white in England*s
colonies was to enjoy opportunities for advancement: cheap land in some
periods and places and better wage labor possibilities.
Given the ubiquity of status considerations, it is hardly surprising that
the Elizabethan Statute of Artificers, which governed relations between
masters and servants, operated on the basis of status. Potential masters (who
met a specified property qualification) could request that any child under 21,
of poor and landless parentage, be bound to them as an ※apprentice§ until the
child reached age 24 (for boys) or 21 (for girls) If the child inherited property,
the apprenticeship would be void. If a justice of the peace agreed, the child
could be imprisoned until he or she agreed to the contract. These strict rules
moderated over the next half-century; justices were allowed to approve
the indenture themselves (without imprisoning the child). Nevertheless,
forced labor remained a part of the labor code in early modern England.
Poor fathers and mothers had no right to their children*s labor. Statutes
instead emphasized the inability of parents to care ※properly§ for their
children. Property-less unemployed adults could also be forced to enter
labor contracts at set rates. Those with minimal resources could, of course,
enter contracts at their own discretion. Those of higher status never had to
work at all. In the seventeenth century youth per se was no bar to power.
Teenage sons of peers were routinely elected to Parliament.
During the seventeenth century the status-driven laws allowing landowning
persons to obtain servants from impoverished families by imprisoning
their children became slightly less severe. Proceedings had to be
initiated by a justice of the peace and the unfitness of the parent shown
and recorded. A matter of status had become one that gave slightly more
attention to the rights of parents. Simultaneously, vagrancy statutes became
less harsh and enforced less severely, especially for adult men.
If status thus shaped the composition of the labor force of the OldWorld,
it should come as no surprise that status also helped shape that of the
New. Both indentured servitude and slavery feature prominently. Perhaps
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half of the white immigrants to British North America (roughly 250,000
people) arrived as indentured servants. Still, only a minority of the white
population (aside from the very early years) was actually indentured or
apprenticed at any given time because white servitude was a temporary
condition. For African Americans, in contrast, slavery was perpetual and
hereditary. Although not many more slaves arrived than servants (300,000),
the permanence and heritability of slavery meant a large proportion of the
population was permanently in bondage.
Some white servants traveled willingly, signing contracts with ※spirits§
who lured them into seeing the New World as a land of opportunity.
Others did not. Kidnapping was widespread, especially in the seventeenth
century. In some ports officials clearly colluded with shippers. English laws
against kidnapping gained some teeth by the early eighteenth century,
though the practice continued on a reduced scale through at least midcentury.
Thousands, perhaps tens of thousands, traveled without contracts,
for which colony laws designated terms of service that varied depending on
the servant*s adjudged age. Most English authorities looked on the practice
relatively benevolently, seeing it as a means of managing the lower
sort and of keeping the vagrant population under control. Even for those
who willingly signed labor contracts, their situation on arrival in the New
World was arguably worse than in the Old. Their contracts generally specified
longer periods of service, with strict punishments for absconding.
Though the servant was free to complain about mistreatment before a
justice of the peace, the terms of the indenture gave masters relatively
more power. Perhaps the most important difference from the Old World
was that their contracts were transferable. In England, servant contracts
were individually between master and servant and not assignable. The very
nature of the ※indenture,§ however, often between a shipmaster and the
new servant, meant that it had to be assignable to the future master. This
innovation made servants ever more clearly property 每 movable property 每
than had the older, more personal rules. Apart from this critical difference,
master/servant relations generally followed the laws on the books for
England.
Husband and Wife in Anglo-America
The laws of master and servant were both well developed and tailored to
the status of the worker. Neither is true for those relating to husband and
wife. In practice, this meant that the husband*s powers under the common
law were not nearly as strong in 1600 as they would be two centuries later.
When legal historians touch on the history of women in early modern
England they often find that the common law rules they anticipate are
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298 Holly Brewer
missing. Take, for example, Edward Britton*s The Community of the Vill, a
study of fourteenth-century Huntingdonshire:
Whether one looks at landholding, business affairs, or the home, it is evident that
the wives of Broughton were by no means wards of their husbands. The precepts
of Baron et Feme are fascinating, and may be used by all who wish to depict all
that is medieval and retrograde, but such legal theories held little sway in this
village in darkest Huntingdonshire. There women were a strong social force, and
the independence of married women was clearly recognized by the customary law.
Numbers of studies of women*s legal status in early modern Britain
have concluded in effect that the common law guidelines were purposefully
ignored. Scholars refer to the ※wide gap§ between the theory of femme
covert and practice. While confined (and indeed repressed) by some laws,
in many other cases women apparently used the law for their own purposes
and protections.3
Recent studies of seventeenth-century Virginia have drawn similar conclusions.
Only some of the common law rules about femme covert applied
there. Women went in and out of courts, even while married. The most
consistent seventeenth-century application of femme covert dealt with the
sale of property by married women without their husbands* permission.
This was widely viewed as a voidable transaction (indeed women themselves
sometimes invoked the rules of femme covert to avoid such deeds).
Restraint on land sales provided husbands a means of control that could
turn particularly harsh when a woman*s husband had actually abandoned
her. In two early eighteenth-century cases, the Virginia House of Burgesses
attempted to ameliorate just such a situation (vetoed by the king on the
advice of his Privy Council). Femme covert rules also restrained married
women*s capacity to make wills.
These situations apart, women in the colonies in the seventeenth and
early eighteenth centuries enjoyed relative freedom from rules limiting
their legal capacity, at least compared to the nineteenth century. Married
women appeared in courts. They were sometimes active business partners
who participated fully in building the kin networks that provided the basis
for transatlantic commerce. Nor were married women completely at the
mercy of their husbands. As in England, a woman who was physically
mistreated by her husband could obtain an action of the peace against him
(requiring that he post bond for his good behavior toward her) or seek a
3 Edward Britton, The Community of theVill:AStudy in the History of the Family andVillage Life
in Fourteenth-Century England (Toronto: Macmillan, 1977), 33每5; Susan Staves, Married
Women*s Separate Property in England, 1660每1833 (Cambridge, MA, 1990), 206; Tim
Stretton, Women Waging Law in Elizabethan England (Cambridge, 1998), 33每8.
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The Transformation of Domestic Law 299
※bed and board§ separation (not the equivalent of divorce) that required him
to provide her with alimony payments. Still, we must also be conscious of
limits. The fact that in separations the husband had to provide alimony 每
and that he often remained in charge of the land that both had brought
to the marriage 每 is strong evidence of assumptions and power relations
underlying marriage during this period. Neither the bond he posted to
keep the peace (for which the wife*s estate was also potentially forfeit) nor a
separation that offered only maintenance could provide complete protection
for a wife.
Women*s own goods belonged to them in marriage, and afterward they
had legal disposition of them. Men*s wills did not include their wives*
personal possessions. Consider the example of Magdalen Trabue Chastain,
who lived in Virginia in the early eighteenth century. She owned several
pieces of jewelry that were not listed in the wills or inventories of either of
her two husbands, indicating she disposed of them herself.4 Sometimes the
presence of the wife*s goods was evident in joint suits, where husband and
wife were both listed in the attempt to recover a debt owed to only the wife
before marriage. Wives were also often administrators of their husbands*
estates, with legal responsibility for paying the debts and managing the
whole process. Their legal activities, in short, were extensive.
One factor that historians have explored in explaining women*s legal position
in the colonies is the prevalence of unbalanced sex ratios. In Virginia,
men greatly outnumbered women in the early years, putting a premium on
marriage. An excess of men grants women a better negotiating situation in
relation to prospective husbands, and hence opportunities for greater autonomy.
High death rates meant that women were often widowed, sometimes
even before bearing children, which increased their chances of accumulating
their own property through inheritance of entire estates, adding to
their attractiveness (and chances for autonomy) to potential husbands. Historians
have also pointed to the legal exigencies of the frontier to explain
women*s relative autonomy 每 to colonial judges who found common law
rules unreasonable given the circumstances of settlement.
Though such factors may have had an impact on women*s relative legal
opportunities in the colonial period, however, they were not decisive. A
shortage of women could as readily worsen their collective situation as
improve it. Those who seek a rare resource often try to control it once
found. Fewer women could mean individual oppression and isolation, not
collective strength. But the larger problem with interpretations that dwell
4 Joan R. Gunderson and Gwen Victor Gampel, ※Married Women*s Legal Status in
Eighteenth-Century New York and Virginia,§ Willam and Mary Quarterly, 3rd ser., 39
(1982), 127.
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300 Holly Brewer
on unique colonial environments is that in England, where the common
law originated, where the sex ratios were balanced, and where no special
circumstances obtained, women should have been worse off. They were not:
instead, the English also deviated from eighteenth-century common law
norms. There too, women in the sixteenth and seventeenth centuries had
more freedoms and legal responsibilities than the common law supposedly
allowed. Such broad similarities in practice across such different regions
suggest that we have yet to understand the nature of the common law
before Blackstone.
We return to this below. For the moment, we can note that the decisive
issue for contemporary law books lay less in the realm of behavior than of
property: how much control were wives to exercise over land, even their
own dower lands, without their husband*s permission?
We have talked of broad similarities across different regions. However,
Puritan New England was unlike either Virginia or England, in that it
gave relatively more authority to husbands over wives. Separate estates for
women were less likely to be found there in the eighteenth century than
elsewhere, as work by Marylynn Salmon illustrates. There too, however, the
seventeenth century at least was a period of greater legal equality, as shown
by such scholars as Cornelia Dayton. Divorce, for example, was acceptable in
NewEngland, particularly in Connecticut. Expectations of wifely obedience
prevailed, but husbands* authority was limited to a greater extent than it
would be in the nineteenth century. Unlike servants, wives were protected
from battery by their husbands (except in cases of self-defense), or at least
women were allowed to complain about it. Above all, there as elsewhere
married women can be found in court records engaging in many kinds of
legal action. Take Elizabeth Creford as an example; she frequently signed
promissory notes on her family*s behalf.5
Yet, we cannot say that in the seventeenth century married women
had equal power in marriage or that women had approximately the same
rights as men in general. Too many gendered disparities are observable.
For example, both women and men were found guilty of sexual offenses
during the seventeenth century and punished relatively equally, but in
Massachusetts adultery, which was punishable by death, applied exclusively
in cases of sexual relations involving a married woman. A married
man who had sex with an unmarried woman committed only ※fornication,§
a much less serious crime punishable by fine or whipping. In one famous
case, a married woman and her two lovers were all executed. Women were
also more much more likely than men to be accused of witchcraft in New
5 Laurel Thatcher Ulrich, Good Wives: Image and Reality in the Lives of Women in Northern
New England, 1650每1750 (Oxford, 1980), 41.
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The Transformation of Domestic Law 301
England (by a ratio of 4 to 1), especially if they owned land in their own
right.
Inequalities in marriage are particularly clear in matters of estates.
Women were more likely than men to bring money and goods to their marriages,
but sons were more likely than daughters to inherit land and hence
a livelihood 每 especially in New England. Only if women had no brothers 每
characteristic of roughly one-quarter of families 每were they likely to inherit
land. About 20 percent of marriages produced no children, in which case
widows often inherited the whole estate. Otherwise, widows might receive
only their dower thirds (the minimum portion decreed their due) during
their lives and have to share the remainder of the estate with children or
other heirs. The law generally allowed women only life estates (owned during
the widow*s life and reabsorbed into the original estate on her death);
husbands were always reluctant to allow wives unencumbered inheritance
for doing so risked the estate. If widows remarried without restrictions on
control of their inheritance, new husbands were likely to press their new
wives to allow land sales, so that they could gradually take control of the
original family estate and defraud the first marriage*s children. This is one
reason why so many forms of encumbrance 每 life estates and entails 每 were
popular during this period. Dower thirds themselves were often life estates
to prevent successor husbands from obtaining control. Wives and heirs of
the original husband could sue for ※waste§ of the land (felling too many
trees, failing to maintain a mill, or damage).
Fathers could also create encumbered estates for their daughters and
their daughters* children to prevent husbands from taking control of the
property. Entails are often understood to exclude female succession. This
was not so. Entails often originated with daughters, so that the father could
prevent a husband from controlling the land (or selling it), preserving it
intact for his daughter and her progeny (a common pattern in Virginia).
Entails allowed testators to designate who would get land ※forever§ by the
rules of primogeniture, a policy that normally favored the eldest son. If there
were no son, however, daughters inherited 每 either jointly or in severalty.
Entails thus favored the male line, but over time they limited the power
of the husband-patriarch and often allowed elite and middling women
control over large estates. Fathers (or first husbands) might also prevent
future husbands from controlling wives* estates through the creation of a
jointure, common in England in the early modern period. A jointure set
aside a separate estate for the wife*s exclusive use, guaranteeing her income
(usually rents) and a dower right on her husband*s death. A jointure was a
form of trust; there were many others, some overseen by common law courts
and others by Chancery (or Equity) courts. Both tribunals can be found in
the English colonies.
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302 Holly Brewer
From the evidence presented, we can conclude that women in early modern
Anglo-America enjoyed relatively greater authority within marriage
than they would in the nineteenth century, but were still at a significant
legal disadvantage. Women could not usually vote, although sometimes
they could inherit that right and designate a male to vote for them (depending
on borough norms). They could not hold seats in Parliament. Women
were not appointed judges, generally they did not sit on juries (except in
the limited role of examining women*s bodies in cases of witchcraft or rape),
and they could not hold most political offices. Culturally, the husband was
expected to be the ※Lord§ of the family.
But the husband*s authority over his servants was much clearer in law
and in practice than his authority over his wife. Indeed, though a truism it
is important to point out that wives also had authority over servants, male
as well as female. As this suggests, both within and outside the household,
legal disadvantage was modulated sharply by status. The impact of hierarchy
in society is obvious from any analysis of women*s legal identity during
this period. In some districts in England, for example, women controlled
which candidates stood for election to the House of Commons. Women,
particularly as widows, clearly played political roles in England*s colonies.
Women could not only have political influence as the wives of governors 每
as did the wife of Virginia Governor Berkeley in the 1670s 每 but could also
play influential political roles at court. And of course, as Queen, a woman
could reign over all.
Parents and Children in Anglo-America
Parents* custodial authority was weak in early-modern Anglo-America, far
weaker than it would be by the late eighteenth century. Only after 1660,
as we have already seen, does one encounter something approaching legal
recognition of parental, which is to say paternal, custody rights. Parents
possessed disciplinary authority: they were allowed to punish their children
※without breach of the peace§ throughout this period. In many ways,
however, childhood itself was not a defined category. Once again, status
proved all important.
As we have seen from the earlier discussion of servants, status 每 whether
in the OldWorld or New 每 was largely determined by the family into which
one was born. Young children in wealthy families had authority over adult
servants. In ※middling sort§ families, children lived with their families and
performed much of the household and farm labor. In poor families, children
were likely to be removed and placed in service in a wealthier family 每
to learn a trade if one was lucky; otherwise simply as a servant, to learn
※husbandry§ or ※housewifery.§ Service was comparatively more common
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The Transformation of Domestic Law 303
for poor whites in the Southern colonies. More common, too, in the South
were wealthy households whose children learned early the skills and habits
of command. Thomas Jefferson acknowledged the phenomenon in order to
criticize it, late in the eighteenth century.
Though custodial rights were weak, fathers might exert indirect control
over their children through inheritance. In the colonies testamentary
power was mediated by the availability of western lands, which meant that
children were less dependent on inheritance for their livelihood than in
England. Nevertheless inheritance was a source of real power, especially in
New England where fathers lived to an advanced age. In Virginia, fathers
had less testamentary power. In the seventeenth century, fathers often died
young, and by the eighteenth century estates were often entailed, allowing
fathers less choice in the disposition of their estates and hence less control.
Inheritance practices in the middle colonies varied, but tended to be more
similar to those in New England. There too, longer life spans meant fewer
encumbrances on estates.
As a concept, custody in its modern sense of parental authority and
responsibility simply did not exist, partly because the idea was not needed
in a world where children could enter their own binding contracts and possessed
a legal identity no different from that of adults. Children were rarely
distinguished as such in legal records. They could be punished for many
different crimes 每 especially once older than age 8 每 and could form many
kinds of contracts. Thus, pre-pubescent children could and did enter into
marriage contracts, usually to cement family alliances or alleviate property
concerns. (Children marrying younger than 12 or 14 could sue for divorce
if the marriage had not been consummated.)
The category of a ward needing a guardian was an exception, for it
specifically recognized minority; however, it was applied only to heirs of land
and the guardian*s responsibilities were limited in scope. At age fourteen a
ward was empowered to choose his or her own guardian. Some guardianships
ended at that point, some at age seventeen or eighteen. Some heirs and
heiresses could evade guardianship if, for example, their father had made
them executor of the estate. All that would happen is that the estate would
remain in a holding pattern until the minor executor reached age seventeen.
Advisors (usually also designated in the will) had little authority to dispose
of or manage the estate without consulting the heir.
Childhood per se entailed few legal restrictions. Teenagers could be
elected to Parliament in England or to the House of Burgesses in Virginia
during the seventeenth century. Legally a male could hold most appointed
offices at age eleven. Army and navy officers 每 a patronage appointment 每
were frequently in their early teens. In England and Virginia one qualified
to sit on a jury at age fourteen (higher in New England). At least in the
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304 Holly Brewer
early seventeenth century, one could testify at any age. In this part of the
legal landscape, as elsewhere, status trumped everything else. All criminal
records, for example, stated the status of the accused: virtually none stated
the age. Those who held positions of political and legal authority while still
teenagers 每 John Randolph, for example, who was appointed king*s attorney
for several Virginia counties at age eighteen 每 came from the most powerful
families. Those bound into apprenticeships by the churchwardens though
both parents might be alive came from the least powerful, the families of
the poor.6
As consent became more important to the law over the course of the
early modern period (growing out of broad religious and political debates),
childhood would emerge as a much clearer category of law and experience.
Children lost their independent legal and political identity, and parents
gained the power to make decisions for them. These changes challenged
old elite practices that allocated authority by birth status irrespective of
age. They also reflected changing norms about the meaning of consent that
grew out of broad economic and political changes.
The best way to understand changes in practice is to examine the evolution
of the common law itself as recorded in legal treatises. English common
law changed dramatically in many ways over the seventeenth and eighteenth
centuries, particularly as it concerned the rights of persons. In the
late sixteenth century, it was concerned primarily with the rights of Lords.
What the early nineteenth century would consider domestic hierarchies
were important mostly as they concerned masters and servants. Treatises
touched lightly on husbands and wives and hardly at all on the rights of
parents over children.
The focus of early modern common law 每 laid out in excruciating
detail 每 was on the privileges of landowners and the constraints on those
who did not own land. In practice England had moved away from strict
feudalism, but the law on the books bore its deep imprint. The first volume
of Sir Edward Coke*s Institutes of the Laws of England, undoubtedly the most
important attempt at a comprehensive survey of English law in the early
seventeenth century, was a commentary on Sir Thomas Littleton*s classic
fifteenth-century text on the law of landed property and the obligations and
authority of Lords and villeins. Coke*s commentary had short sections on
femme covert and the relationship of guardian and ward, but property was
the core of the feudal law. What kinds of restraints governed the selling and
inheritance of property? Who inherited under primogeniture? When could
land be willed and what land was encumbered? What powers did landlords
have over tenants, or Lords over villeins? When could guardians act for
6 Holly Brewer, By Birth or Consent: Children, Law and the Anglo-American Revolution in
Authority (Chapel Hill, 2005), 28.
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The Transformation of Domestic Law 305
wards, and over what? When could husbands sell their wives* property
and on what conditions? The volume is thick with answers to questions
like these. Its sections explain what it meant to hold land in different ways
and the varied implications of each landholding method for the use and
ownership of land. They even reveal that ownership of land often implied
a limited ownership of people 每 those who farmed it, leased it, and dwelt
on it.
Coke wrote three additional treatises to complete his Institutes, inspiring
Blackstone*s similar four-volume synthesis 150 years later. The commentary
on Littleton (volume I) anticipates elements of what would come,
particularly volume II, which concerns the statutory law of England. The
third volume concerns crimes, particularly high crimes such as treason. The
fourth deals with the jurisdiction of England*s many different courts, not
only those of the common law but also of some fifteen other court systems
that produced precedents (with often overlapping appeals) in the early seventeenth
century, notably the canon law and equity (Chancery) courts. A
survey of their substance is revealing. Coke was a reformer 每 he had Puritan
sympathies and struggled with James I over the rights of Parliament 每 but
his Institutes contain little about subjects we might now think of as central
to the common law, such as the rights of persons. Reading the Institutes
introduces the reader to a very different world.
Coke*s predominant concern in the Institutes is the reciprocal duties and
obligations of Lords with regard to their villeins, servants, and tenants. His
brief exposition on coverture focuses on the way that property can be held
and conveyed (or not) once men and women marry. Men can convey their
own property (if not entailed or encumbered) without their wives* consent,
he tells us, but wives need their husbands* consent and must be separately
examined by judges about their wishes. If land is not freehold, it cannot be
conveyed at all. Husband and wife are considered as one in the eyes of the
law only in the narrow sense that if an estate is left to husband and wife
and to another person, husband and wife should receive only a half between
them. After the husband*s death, the wife has the right to the use during
her life of a third of the property belonging to the husband before marriage
(her ※dower§). After the wife*s death, the husband has the right to the use of
all his wife*s property during his life, but only if she actually bore a living
child during the marriage (called his ※curtesy§).7
7 Sir Edward Coke, Institutes of the Laws of England (London, 1809), Sect 36 ※Dower§:
Ten[an]t in Dower is where a Man is seised of certain Lands or Tenements in Fee-simple, Fee-tail
general, or as Heir in special Tail, and taketh a Wife, and dieth, the Wife after the Decease of her
Husband shall be endowed of the third Part of such Lands and Tenements as were her Husband*s
at any Time during the Coverture, To have and to hold to the sameWife in severalty, by metes and
bounds of Term of her Life, whether she hath Issue by her Husband or no, and of what Age soever
the Wife be, so as she be past the Age of nine Years a the Time of the Death of her Husband.
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306 Holly Brewer
The Institutes contain almost no discussion of the powers of parents.
In contrast, discussions of the powers of guardians fill many pages. But
guardianship is mostly a matter of property management 每 most orphans
did not have guardians. In other words, children per se were not thought to
be dependent and incapable; it was the inheritance of land that created the
requirement for a guardian. Even then, most guardianships were sharply
limited and ended at age 14.
Other early seventeenth-century law books present a similar picture of the
law while filling a few gaps. Like Coke*s Institutes, Dalton*s Countrey Justice 每
a guide for local justices of the peace, men usually without legal training 每
was extremely popular not only in England during the seventeenth century
but also in the North American colonies. It contained large sections on the
statute of artificers (sometimes called the poor law by historians), indicating,
for example, how a landowner might force another to labor for him and
what remedies protected him from the laborer*s early departure from the
covenant. It also underlined the centrality of status to criminal penalties: a
servant who killed a master could be drawn and quartered for the crime of
petty treason, whereas a master killing a servant in the course of punishment
would usually be excused altogether.Amaster who beat a servant was within
his rights; a servant who beat his master could be imprisoned for a year.
Dalton*s attention to criminal issues is not surprising, given that the
jurisdiction of a justice of the peace would routinely encompass petty crime.
But a modern eye quickly notices his relative neglect of questions relating to
wives or children. The silence suggests he had no broad vision of ※domestic§
law. Other important guides give the same impression. Systematic study of
them is even more revealing. By pursuing three of the key issues that appear
in parallel in later guides, we realize just how different the law was at this
juncture. First, many guides compared the powers of a master to those of a
husband in matters of petty treason, in which a servant or wife who killed a
master or husband was considered comparable to a subject who killed a king
and punished as though guilty of high treason (drawn and quartered before
execution or burned alive). However, a son who killed his father was not
deemed guilty of petty treason and would not be liable for such extreme
punishment. Second, the guides contain no discussion of witnesses, and
[Dower only applies when the lands in question belonged to the husband beforehand.
Note also, that there are some cases when the man owns entailed land, where the wife
cannot claim dower.]
Sect. 35 ※Curtisia Dengleterre§; ※Tenant by the Curtesy of England is where a man
taketh a wife seised in Fee-simple, or in Fee-tail general, or seised as Heir in Tail especial,
and hath Issue by the same wife, Male or Female born alive, albeit the Issue after dieth
or liveth, yet if the Wife dies, the Husband shall hold the Land during his Life by the
Law of England.§
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The Transformation of Domestic Law 307
one encounters no sense that age is relevant to testimony: children could
testify at any age. Wives and husbands could testify against each other or
in open court generally. Last, and probably most revealing, are the entries
on allowable battery. According toWilliam Lambarde*s Eirenarcha: Or of the
Office of the Justices of Peace, battery ※is not in all cases a violation and breach of
the peace: for some are allowed to have privately a natural and some a civile
power (or authority) over others: So that they may (in reasonable manner
onely) correct and chastise them for their offences.§ A parent might beat
a child ※within age,§ the master a servant, the schoolmaster a scholar, the
a jailer a prisoner, the lord a villein. But the husband might not beat his
wife 每 that allowance is conspicuously absent.8 Although another early text
does allow a man to punish his wife, servant, or child ※reasonably§ without
a breach of the peace, it also excludes children from the crime of petty
treason against their parents and has no section on witnesses.9 Generally,
guides of this period prohibited husbands from physically beating wives.
When they did so, they used the word ※chastise,§ which had the primary
meaning of verbal reprimand. Even this concession is debatable (writers
would hedge, noting ※some authors hold that,§ and would always append
the word ※moderately§). Physical beating could provide wives with the
basis for separation suits in the ecclesiastical courts, which could also force
husbands to provide their wives with alimony or ※separate maintenance.§10
Despite these limited protections, assault generally (of any kind) was not
a serious crime and usually had to be privately prosecuted, a course open
to those with money, such as masters, but not to servants and the poor.
What this means is that while the common law discouraged husbands from
beating their wives it did so only in a half-hearted manner. Wives found
it difficult to prosecute and especially to convict husbands: rarely in this
period did assaults lead to convictions, unless of an inferior assaulting a
superior. Likewise, within marriage, the crime of rape did not exist, and
rape itself was rarely prosecuted even outside marriage. These attitudes
toward assault are important to a broader understanding of the character of
the law at this juncture.
We can now see that the common law did not have a fully developed
conception of domestic power except with respect to servants and that the
tripartite array of master/husband/father was not in place, at least when it
came to criminal matters. In civil matters, Coke has shown us that femme
8 Lambarde, (London, 1599), 130每1.
9 [Fitzherbert], L*Office et Auctoritie de Justices de Peace (London, 1583), 89a, 13a.
10 Henry Ansgar Kelly, ※Rule of Thumb and the Folklaw of the Husband*s Stick,§ Journal
of Legal Education 44 (1994), 341每65. On the meanings of chastize, see the OED (the
third meaning is corporal punishment).
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308 Holly Brewer
covert had limited application, relating almost solely to the selling of freehold
property that had no other restraints on it, to a married woman*s
ability to make a will over such property, and, to a much lesser degree, to
her husband*s liability for her debts. Of particular importance, in this period
most land was not unencumbered freehold. Any land that was entailed or
had other legal restrictions on heritability was not within the husband*s
control. This basic point is very strange to modern readers, where almost
all land is freehold. Once we acknowledge the encumbered nature of most
land (in England especially, and increasingly in the colonies as well) we can
recognize the limitations of even this core principle of femme covert.
The concept that husband and wife were one in the eyes of the law, so
important to Blackstone, is conceived very narrowly in Coke*s writings 150
years earlier. It is not treated at all in most other legal writings of the
seventeenth century. One exception, an obscure text misleadingly entitled
The Lawes Resolutions of Womens Rights (1632), does appear to show that
Blackstone*s broad concept of femme covert indeed had some currency in the
early seventeenth century. But the treatise is not very reliable as a report
on current law. The legal texts of this period name their sources in almost
every paragraph, usually in statutes or other treatises on the common law
or other laws. In contrast, this treatise has few citations to contemporary
laws and none in the sections most relevant to the matter at hand. It is
not cited by later treatises, nor does it appear in colonial lawyers* libraries.
Also significant, the author*s name appears only as the initials T.E. at a time
when authors of most legal texts gave their full names, and the treatise
itself appears in only one edition. By comparison, Coke upon Littleton, the
first volume of Coke*s Institutes, had appeared in eleven editions by 1719;
Dalton*s Countrey Justice was reprinted in comparable numbers.11
It is important, nevertheless, that we take this volume seriously, not
because it was an accurate rendition of current law but because it is an early
argument against women*s rights. As such it provides useful information
about the sources of the changes that would occur in women*s legal status
and indeed suggests something about why New England in particular had
more limits on women*s roles and property ownership than the southern
mainland colonies. For T.E.*s arguments are fundamentally religious. Under
the title ※The Punishment of Adam*s Sinne§ he invites his readers to ※returne
a little to Genesis.§ Eve seduced her husband. Hence ※In sorrow shalt thou
bring forth thy children, thy desires shall bee subject to thy husband, and
he shall rule over thee. See here the reason . . . that Women have no voyse
11 Herbert A. Johnson, Imported Eighteenth-Century Law Treatises in American Libraries
(Knoxville, 1978). Despite Johnson*s title, his review of legal inventories examines
seventeenth-century (and earlier) treatises as well.
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The Transformation of Domestic Law 309
in Parliament, They make no Lawes, they consent to none. they abrogate
none. All of them are understood either married or to bee married and
their desires are subject to their husband . . . The common law here shaketh
hand with Divinitie.§ Elsewhere T.E. proclaims that in marriage ※Now Man
and Woman are one,§ again citing only biblical authority, and he offers as
example the sale of land to man and wife together, as one (like Coke). Most
of the book, in fact, is best understood as a response to Coke. Revealingly,
the author uses biblical citation, not legal references, to challenge the legal
rules that he finds objectionable. For example, following Littleton, Coke
acknowledges that heiresses can manage their own estates at age fourteen,
if unmarried. T.E. recommends against this: he states that the common law
is clearly wrong and urges that heiresses should be married young so as to
avoid letting them control their own property.12
※T.E.§ was probably Thomas Edgar, a member of the Inns of Court. Edgar
was not a prominent seventeenth-century lawyer. Educated as a Puritan in
Ipswich, he is best known for his defense in 1649 of the legality of the
Commonwealth in the wake of Charles I*s execution, seventeen years after
the publication of The Lawes Resolutions ofWomens Rights. Edgar would later
support the Restoration of Charles II, but in 1649 his views were radical,
suggestive both of his religious impulses and political principles.
The Lawes Resolutions ofWomens Rights was thus a religiously inspired commentary
on current law with important political implications and overtones
that sought to limit married women*s status and strengthen their husbands*
authority. Significantly, it includes sources external to the law, notably
Puritan sermons about wifely obedience and the ideal marital relationship.
In elaborating on the possible legal meanings of the unity of husband and
wife and in emphasizing women*s legal disabilities it is quite possible that
T.E. influenced later thinkers. And indeed that was the goal, for the book
imported into legal writing the genre of the Puritan prescriptive manual,
along the lines of (and arguably influenced by) William Gouge*s popular
1622 treatise on Domesticall Duties. Gouge*s text was not a law treatise but a
religious advice manual that described how the members of the household
should behave, outlining the ※duties§ of wives, husbands, children, parents,,
servants, and masters, in that order, citing only the Bible. Interestingly, in
Gouge*s treatise we begin to see the first outlines of the late eighteenth
century*s familiar triptych: ※for a family consisteth of these three orders,
Husbands, Parents, Masters,
Wives, Children, Servants,§
12 T.E., The Lawes Resolutions ofWomens Rights [London, 1632], (facs. ed. Amsterdam, 1979),
21.
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310 Holly Brewer
Gouge attributes his analysis of the proper order of ※private families§ to
※the Apostle.§13
From all this we can conclude that, beginning in the early seventeenth
century, common law ideas about domestic order were profoundly influenced
by Puritan ideas. We can see this most clearly in how prescriptive
works by such authors as T.E. and William Gouge challenged the prevailing
common law norms outlined in the work of commentators such as Sir
Edward Coke.
There can be little doubt that Puritan writers sought to increase husbands*
powers. Debate was raging, particularly in religious circles, over the role of
the household and all its members. Part of the challenge to older hierarchies
posed by radical Puritanism lay in religious arguments about a different
natural order to which the family was central. In this new order men as
such not only had the right to exercise consent but also to remain with
their own families and enjoy rights to their own wives and children, so that
a husband might rule his own household and his children might no longer
be taken away as servants to others. It is highly significant that in early New
England the first paragraph on the first page of the first law book specifies
that ※no man shall be deprived of his wife or children§ 每 along with other
basic rights, such as not to be killed, arrested, or banished 每 ※unles it be by
the vertue or equity of some expresse law.§14 Here was a profound challenge
to the older common law of England.
It was not only Puritan ideas that shaped the common law, however, nor
was the influence always direct. Religious debates intersected with political
controversies in England throughout the seventeenth century. The tracks are
not easy to follow, but we can be sure that the Puritan emphasis on consent
in religious matters influenced the emergence of ideas about government
based on consent, which challenged the powers of Lords in that sphere, and
that fathers* and husbands* claims of household rights challenged those of
Lords and masters in that sphere.
The clearest example of this interaction is the landmark custody law of
1660, which built on Puritan precedents and which was an essential element
in the settlement to which Charles II had to agree for the Restoration to
proceed after the English Civil War and Interregnum. The law allowed
fathers, for the first time, to designate who should get custody of their
children up to the age of 21, should the father die. Before 1660, inasmuch
as custody had existed, it had been concerned with the rights of guardians
13William Gouge, Of Domesticall Duties (London, 1622, facs. rpt Amsterdam, 1976), 17.
14 The Laws and Liberties of Massachusetts [1648], ed. Richard S. Dunn (facs. rpt. Huntington
Library, 1998), 1.
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The Transformation of Domestic Law 311
(in limited cases) and the rights of masters. A Lord, for example, would
receive custody of a tenant*s son up to the age of 14. Likewise one of the
greatest sources of revenue for the Tudor and early Stuart kings had been the
※Court ofWards,§ which had allowed them, essentially, to sell land use and
guardianship rights on behalf of all those inheriting land held of the King
in so-called knight*s service 每 encompassing the land of all major peers 每
but who were too young actually to perform their service. The 1660 revision
abolished the Court ofWards and allowed all men to choose a guardian for
all their children.
Giving up wardship income was an important concession by Charles II
and marked a major weakening of feudalism. Indeed the 1660 custody law
is commonly thought of as marking the final abolition of feudal tenures in
general. Advocates emerged not only from the remnants of Puritan reformers
in the Rump Parliament but also from the recently reincarnated House of
Lords, which had an obvious interest in such a change. The larger point
is that the trade-off here 每 the King*s surrender of important rights over
his tenants and the similar surrender by Lords of rights over their tenants,
which in each case increased the rights of fathers over children 每 was part of
a larger challenge to the old feudal system. New ideas grounded on family
order supplanted older ideas grounded on feudal hierarchy.
A new ※domestic§ or household law dealing with servants, wives, and
children did not emerge all at once in the late seventeenth century. Indeed,
at the end of the eighteenth century, its rules remained unfinished. The head
of Cromwell*s Interregnum commission on law reform, Sir Matthew Hale,
who subsequently became Chief Justice under Charles II, would play a major
role in reform, although initially his recommendations went unheeded and
were only fully absorbed into the law by the mid-eighteenth century. Other
treatise writers, notably ThomasWood and SirWilliam Blackstone, would
also play important roles. Their work synthesized precedents and rationalized
the common law to create a coherently reformed system. The American
Revolution, finally, would play a crucial role in rendering explicit the shift
of norms that had been taking place, not only in the larger political order
and in ideas about consent but also in the new domestic order, in the duties
of servants, wives, and children.
II. REORGANIZING HOUSEHOLD AUTHORITY: THE
EMERGING POWERS OF FATHERS AND HUSBANDS
By the end of the eighteenth century and the beginning of the nineteenth,
Anglo-American domestic law had begun to take coherent form. As we
have seen, Blackstone was key to this transition, although Blackstone built
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312 Holly Brewer
on other treatise writers, such as Hale andWood, and others added to (and
modified) his formulations, such as Tapping Reeve and, later, Chancellor
James Kent. In the wake of the Revolution, state legislatures would also
contribute, as did judges (often following the new treatises) case by case.
One major change that occurred in the wake of the Revolution was
that most of the new American states legalized complete divorces (all had
allowed legal separations, called divorce ※a mensa et thoro§). Before, only
Connecticut had allowed complete divorces (※a vinculo§), although some
colonies had permitted ※private acts§ of the legislature to authorize the
divorce of a particular couple, following English practice. After the Revolution,
many states began to allow divorces when one side could show
that the other had broken the marriage contract by infidelity. The resulting
cases, as one can imagine, make for interesting reading, but the larger point
is that the rhetoric of the Revolution itself could have radical implications
for marriage rules and practices.
Yet, the overall impact of the Revolution itself on domestic order 每 at least
in the short term 每 was actually minimal, largely because of the continued
role the common law played in America in the years immediately after the
break with Britain. Partly we may credit Blackstone*s particular influence,
partly the very character of common law decision making itself. Instead
of passing to legislators, legal authority remained in the hands of judges.
Judges rationalized their decisions by appealing to what they portrayed
as an unchanging, unhistorical, universal law. Blackstone*s Commentaries
provided judges with the necessary material, minimizing change over time
and shrouding historical origins in invariant legal certainties.
Blackstone*s representation of an unchanging common law, of course,
actually hid what had been years of fundamental transformation. The reorganization
he summarized and synthesized is revealed most clearly in the
contrast between his Commentaries on the Laws of England and Coke*s Institutes.
Blackstone began the Commentaries with the rights of persons (volume I),
moved on to the rights of things (volume II), and devoted volumes III and
IV to crimes, private and public. A common law that had been primarily
about property and the rights of Lords 150 years before, now devoted itself 每
under Blackstone*s careful hand 每 to the rights of persons.
We have noted Blackstone*s profound influence on the new United
States: he was the most widely cited author in American newspapers in
the 1790s (following Locke in 1770s and Montesquieu in the 1780s); he
was immensely respected among the intelligentsia for his Commentaries,
which were published in their first American edition, with a list of some
600 subscribers, in 1772; and his work would become the template and
point of departure for all the major American common law treatise writers
of the early nineteenth century. Given all this influence, Blackstone*s
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The Transformation of Domestic Law 313
representation of domestic law to his American readers is crucial. He commences
discussion of domestic law as follows:
The Three Great Relations in Private Life are 1. That of master and servant; which
is founded in convenience. . . . 2. That of husband and wife; which is founded in
nature, but modified by civil society: . . . 3. That of parent and child, which is
consequential to that of marriage, being its principle end and design: and it is by
virtue of this relation that infants are protected, maintained, and educated. But
since the parents, on whom this care is presently incumbent, may be snatched away
by death or otherwise. . . . the law has therefore provided a fourth relation; 4. That
of guardian and ward, which is a kind of artificial parentage, in order to supply the
deficiency, whenever it happens, of the natural.15
In succeeding chapters, Blackstone laid out these parallel household relations.
What is striking are the similarities: according to the ancient common
law (so Blackstone contends) the master, husband, father can beat the dependent
servant, wife, child. The master, husband, father is often responsible
for the dependent actions of the servant, wife, child. The master, husband,
father is also responsible for the maintenance of his dependents and, in the
case of the wife and child, also responsible for their debts for necessities (but
no more than that). Within the parallels there are a few variations: wives
cannot testify against their husbands (or vice versa) in most cases because
they are considered ※one§ in the eyes of the law; children under age 14
generally cannot testify at all, whether against parents or not; and servants
can testify.Wives can ※elope§ from their husbands without the law forcing
their return (unlike servants and children) or penalizing them except (if
they flee to another man) the loss of their alimony and of any monetary
claims against their husbands. One variation is of particular importance.
Blackstone clearly sees servants as the property of their masters, so that
if a servant leaves to work for another he can be forced to return and the
master can sue his rival for damages. Blackstone never describes wives in
that fashion. He does, however, grant fathers a property interest in their
children*s labor, which is a direct parallel to his discussion of servants on
this question and is a new common law right. Blackstone*s discussion of the
rights of guardians, finally, is quite brief compared with the other relations.
Guardians* rights are clearly less extensive than they had been (guardians
have no right of battery, for example). Nevertheless, guardians* rights are
rendered comparable to those of parents. Blackstone bases those rights in
children*s inability to form contracts, although he allows children their
established common-law exemptions 每 contracts for necessities and labor
contracts. (Once aged 14 they can be held liable for crimes too.) Generally,
15 Blackstone, Commentaries, I, 410.
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314 Holly Brewer
he concludes, children need guardians, which in some cases they can choose
if their father has not done so.
What is extraordinary about the Commentaries is first, just how much is
new in the sections on servants, wives, and children, and second, just how
much Blackstone tries to universalize principles across all three categories
of relationship. Admittedly, the parallels Blackstone develops are not all his
own doing: it was Hale, for example, who, late in the seventeenth century,
first developed the rules barring wives and children from testifying. But
Blackstone*s is the grand synthesis.
Though acknowledging in specific instances that changes had occurred
over time (as in the case of guardianship) Blackstone hides change. He
also ignores contrary precedents. There are limits, one could argue, to how
extensively Blackstone could mold the common law to fit his synthesizing
imagination. Yet the limits are not clear, for his reasoning is supple. Take
the expanding legal-political ideology of contract. Blackstone emphasizes
that the power to contract is essential for an individual*s public legal identity.
Most persons, therefore, must have it. What then of the ※necessary§
dependencies of the domestic relations? They are founded on contract. A
servant contracts with a master, a wife with a husband. But once a servant
has contracted with the master, a wife with her husband, they have
exhausted their capacity to contract. Their contractual act turns them into
equivalents of children; like children they are dependent on the will of
the master/husband/father, at least insofar as what he requires is lawful. In
other words, Blackstone envelops each relation in the new ideas about contract
while actually allowing those ideas only a tenuous purchase: following
the statute of laborers, he still permits force to be used in the forming of
labor contracts 每 against the laborer. Likewise, he allows that labor contracts
can be for shorter (or longer) duration than the customary one year,
which gives greater flexibility to those contracting. In the wife*s case, meanwhile,
the concept of femme covert becomes fully realized in the law by her
contract, her one self-willed act held to imply an abnegation of her legal
identity.
In the new United States, such commentators as St. George Tucker in
Virginia,Tapping Reeve in Connecticut, JamesWilson in Pennsylvania, and
James Kent in NewYork built on Blackstone*s domestic relations blueprint.
They made their own modifications: Kent, for example, strengthened a
father*s right to property in his child, further limited the ability of children
to contract (even for necessities), and allowed mothers custodial rights due
to their loving care for their children. Arguably, this last change helped
precipitate later key custody battles where judges in divorce cases began
to grant mothers custodial authority over their children. Tapping Reeve
adopted an extreme approach to wives* dependency, contending that wives
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The Transformation of Domestic Law 315
could never be held responsible for any contract and that husbands were
always responsible for fulfilling their wives* obligations, even to the extent
of caring for her children from a former marriage. Reeve saw husbands*
powers as also incurring responsibilities.
In the case of master/servant relations in America, the authority of masters
over white servants and apprentices had weakened somewhat in the
colonial period, in part because the percentage of whites in such relationships
in the colonies decreased. In the wake of the Revolution, however, the
common law broadened the reach of masters in parallel to increasing the
powers of fathers and husbands. Adult male laborers who remained in
the category of dependents were now analogized to children, but a more general
basis for the authority of masters was placed on the contracts of formerly
independent working men. This reactionary response to the principles of
the enlightenment and the American Revolution took place particularly
within the common law.
The laws regulating master and servant during the seventeenth and eighteenth
centuries were grounded in older norms about master and servant,
which persisted into the modern period. In practice, the application of those
norms expanded in range. While in the early modern period, many types of
skilled or day labor had been seen as legally independent, by the early nineteenth
century, hierarchical definitions of master/servant relations began to
apply to them. Masters/employers were granted so many legal advantages
that real freedom of contract did not exist. The trend followed Blackstone
and to some extent earlier treatise writers, such as Burns* popular Justice of
the Peace guide. Still, in the wake of the Revolution the scope of the application
of these norms expanded rapidly in America through court rulings.
Key court decisions in many states allowed masters, for example, to set the
rules of departure and terms of labor and to limit their liability in the case
of injury. These decisions were made by placing most worker issues within
the older master/servant law, which had become a universal category under
which most worker relations fell. Courts also restricted workers* combinations
(unions) in decisions along lines formulated in 1834 by Massachusetts
Judge Peter Oxenbridge Thacher, who condemned unions as conspiracies
that would undermine public order comparable to the excesses of the French
Revolution. Such rulings were openly anti-democratic.16 They blunted the
principles coming out of the American Revolution that had given strength
to the working men*s movement, fueling the impetus toward unions that
challenged employers on grounds of equity and rights and contributed to
the nineteenth century*s ideology of ※free labor.§ One change that did begin
16 Christopher L. Tomlins, Law, Labor and Ideology in the Early American Republic (Cambridge,
1993), e.g., 193, 238, 263, 275.
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316 Holly Brewer
to benefit working men, however, were court decisions that began to limit
employers* ability to physically punish their employees.
Ideas about the equality of men 每 about their ability to consent to government
每 shaped the legal debate about the rest of the household and the
pattern of authority within it. Forcing poorer children to labor for masters
no longer looked so appealing to a broader electorate that included the
fathers of those poorer children. As consent became more important to the
law and to the ideal of society, it became more important to train future
citizens, which led in the wake of the American Revolution to ambitious
plans for public education in many states that were actually realized in
the middle and Northern states. In the longer run these principles also led
to general bans on child labor, following the principle that poor children
should not be condemned to service and manual labor, but had rights to
occupational opportunity and civic capacity.
These changes were part of a larger challenge to hereditary status.With
the notable exception of slavery, laws determining status by birth largely
disappeared in the new United States. The U.S. Constitution mandated that,
on the federal level at least, political offices could not be hereditary. States
passed similar laws, though in some cases 每 justices of the peace in Virginia,
for example 每 formally appointive positions remained hereditary in practice
as they passed from elite landowner father to eldest inheriting son, just as
in the colonial period. Still, even in Virginia, laws challenged hereditary
status, such as those abolishing entails and primogeniture. Apprenticeship
laws that had removed poor children to work in wealthier families also
became less common 每 for whites, at least.
White parents tended to gain custody of their children; black parents
(especially those enslaved) generally did not. Free black families were often
female headed, perhaps with an enslaved father, and poor. Poor free black
children were often forcibly bound out, especially in the South. The children
of slaves were of course owned along with their parents. Enslaved parents
had no legal voice and no legal right to be married. The legal word ※family§
did not apply to them. This might seem obvious to scholars of antebellum
slavery, but its roots lay in older norms of master/servant. Slavery was a
continuation of those norms, challenged but unreformed by the Revolution,
as defenders of the South*s ※domestic institutions§ repeatedly revealed.
States offered many variations in the details of domestic authority, with
the South assuming the most hierarchical stance in the powers it gave white
fathers. In the wake of the Revolution, fathers in Massachusetts were allowed
to bind their children into apprenticeships solely on their own authority if
the child were under 14; for children between 14 and 21, both father and
child had to sign. In Virginia, fathers could bind the child solely on their
own authority until the child was 21. In Pennsylvania, a parent or guardian
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The Transformation of Domestic Law 317
had no power to bind the child on their own authority at any age. Even a
2-year-old had to sign too before a labor contract could be valid. (In all three
states, however, Overseers of the Poor could bind children until age 21 if
they determined the children were poor or illegitimate or without proper
care.) These different state laws, of course, all marked a shift away from the
earlier practice that held the child*s consent sufficient in itself 每 a norm still
acknowledged by Blackstone, his extensive objections to children forming
contracts notwithstanding.
Across the broad spectrum of the law, children lost legal capacity 每 they
were no longer able to manage estates, to serve in political or appointed
offices or on juries, to marry without parental consent, let alone under the
age of puberty, to be criminally culpable (at least if under the age of 14),
to make wills, to testify in a court of law, or even to make contracts for
necessaries. These changes sometimes worked to a child*s advantage, as in
an 1806 case in which a 13-year-old girl accused of murdering her drunken
father was deemed too young to have her confession admitted as reliable
evidence and was acquitted.17 Generally these new rules emerged out of
legal policies that privileged informed consent 每 and legal independence 每
in the forming of all contracts and relations of responsibility and assumed
that children lacked the competence to make such decisions.
The story of women*s legal rights is somewhat grim. Blackstone*s grand
synthesis set up a situation in which women (particularly heiresses) could
be exploited more easily by their husbands, a situation that fed the women*s
rights movement and paved the way for some of the women*s separate property
acts of the mid- and late nineteenth century. Blackstone*s unqualified
embrace of marital unity and the reformulation of property rights that
gave the husband all authority over property 每 even personal possessions
and property the women had brought to the marriage as dower 每 sharply
altered the multiple ownership norms and encumbrances of the older system.
Blackstone*s injunctions were supported by revolutionary ideals that
glorified simple property ownership and jettisoned many types of property
encumbrances. Bans on one particular type of encumbrance, namely entails
that conveyed only life estates to heirs, did advantage women in the sense
that daughters were more likely to inherit. However this reform also came
at the expense of wives who were heiresses because encumbrances like entail
had formerly protected a married woman*s separate property. In and of itself,
the abolition of entails displays the mixed character of the revolutionary
legacy for women as daughters and wives.
One important technicality for understanding this transition is the role
played by equity courts (Chancery). Equity courts in England had long
17 State v. Mary Doherty, 2 Tenn (2 Overt), 80.
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318 Holly Brewer
provided a separate system of justice headed by the Chancellor of England,
which technically served as an appeal to the King from common law decisions.
In the late eighteenth and early nineteenth centuries, equity courts
coming out of the English tradition had crafted a separate body of law that
(among many other things) tended to recognize the different forms of separate
or encumbered estates of wives that husbands could not/should not
control. In fact, these equity decisions often simply recognized what the
common law, prior to Blackstone, had itself largely honored. In the early
nineteenth century, as the common law ceased to allow women separate
property, equity appeals (through the separate equity courts that existed in
many states) built on older precedents to challenge Blackstone.
Not all states had equity courts and even those that did often limited
their jurisdiction. Still, equity jurisdiction helped shape the laws that began
to emerge in the 1830s and 1840s in America collectively known as the
※women*s separate property acts,§ laws that allowed women to retain control
over the property that they had brought into the marriage. They were
fiercely debated in many states, often in state constitu