the cambridge history of law in america volume i Early America (1580–1815) 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 –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 – United States – History. I. Grossberg, Michael, 1950– II. Tomlins, Christopher L., 1951– III. Title. kf352.c36 2007 349.73 – 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, 1580–1815 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, 1791–1812 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” – 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 – 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 – 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 (1911–36); The Cambridge History of American Literature (1917–21); The Cambridge Ancient History (1923–39); The Cambridge History of the British Empire (1929–67); The Cambridge History of India (1922–60), 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 – 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), 723–36. Cambridge Histories Online © Cambridge University Press, 2008 Editors’ Preface ix characteristic of Acton’s moment – the later nineteenth century – 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 – 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 – a standard general history, a guiding light produced by and for an intellectually confident elite – 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–World War II Britain, Cambridge University Press’s syndics decided a revised version was required – a New Cambridge Modern History for a new day – 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” – 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 – 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 – 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 – and inevitably – 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 – 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 – global – 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 – “l(fā)egal history” – 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 – the unpacking of the changing roles of American law, market, and state from the early nineteenth to the early twentieth centuries – 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 – 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 – to use an apocryphal example of Robert Gordon’s – “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 – 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 – citizenship and civic personality, identity, spatiality, and the etiology of social hierarchy and subordination – 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 – the migration of the field from a focus on “the law” to a focus on the conditions of existence of “l(fā)egality” and the competition of many alternative “l(fā)egalities” – 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 – 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 “l(fā)egalization” 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 – 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, 1780–1860 (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 – political, intellectual, social, cultural, economic, business, diplomatic, and military – 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 – 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 – 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – the colonial period, the Gilded Age, the Progressive period, and so forth – 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, Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – ultimately the most pressing question of all – 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 – Spain, Portugal, Holland, France, and England – 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 – the reinos de Indias – 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 – what has often be referred to as a “composite monarchy.” The Portuguese 1 Cambridge Histories Online © Cambridge University Press, 2008 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 – what would later become Canada – 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: 288–9. 2 Quoted in Craig Yirush, From the Perspective of Empire: the Common Law, Natural Rights and the Formation of American Political Theory, 1689–1775. Unpublished PhD diss., Johns Hopkins University, 2004, Chapter 2. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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” – 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” – then called the “l(fā)aw of nations” (ius gentium) – 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, 1850–56), IV: 37. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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, 1854–6) I: 46. Cambridge Histories Online © Cambridge University Press, 2008 Law, Colonization, Legitimation, and the European Background 5 importance, persons who were to be displaced, not incorporated –”savages,” in the terms of Charles II’s charter to settle Carolina – 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 – and benefiting from – 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. Cambridge Histories Online © Cambridge University Press, 2008 6 Anthony Pagden furthermore, there existed a long-standing distrust of conquest – to which I shall return – 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 “l(fā)ands 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, 1826–7), II: 249b. Cambridge Histories Online © Cambridge University Press, 2008 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 – more troubling – 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. Cambridge Histories Online © Cambridge University Press, 2008 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), 601–2. 11A Letter to Edmund Burke, Esq., A Member of Parliament for the City of Bristol . . . in Answer to his Printed Speech (Gloucester, 1775), 18–20. 12 “The Rights of the British colonies asserted and proved” [Boston, 1764], in Bernard Bailyn, ed., Pamphlets of the American Revolution. I 1750–1765 (Cambridge. MA, 1965), 422. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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” – 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), 161–2. 15 The Reports of Sir Edward Coke, Book VII, 601–2. Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – English common law at least – 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– 1993), 13, 21. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – Massachusetts, Plymouth, Maine, New Hampshire, Rhode Island, and Connecticut – 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 – Massachusetts, Rhode Island, and Connecticut – still had charters. Two others – Maryland and Pennsylvania – 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: 30–1. Cambridge Histories Online © Cambridge University Press, 2008 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, 1959–1993), 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. Cambridge Histories Online © Cambridge University Press, 2008 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 (1991–1992), Commonwealth Law Reports (Aus) 175 (1991–1992). 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) 591–2. 28 PoliticalWritings, ed. Anthony Pagden and Jeremy Lawrance (Cambridge, 1992), 264–5. Cambridge Histories Online © Cambridge University Press, 2008 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 – even by the Spanish themselves – 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 – as it was coming to be named – 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 – contract or purchase being the other – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 –that is sovereignty – 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 – 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), 11–12. 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. Cambridge Histories Online © Cambridge University Press, 2008 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, 1857–74), VI: 457. 34 I am grateful to David Armitage for pointing this out to me. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – the most contentious being the royal forests – 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. Cambridge Histories Online © Cambridge University Press, 2008 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, 1853–4), II: 245. 38 Locke’s Two Treatises of Government, 309: Second Treatise 32. Cambridge Histories Online © Cambridge University Press, 2008 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 – as it has come to be called – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 “l(fā)ong 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, “l(fā)ong 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: 94–5. 42 Nova Britannia, offring most excellent fruites by planting in Virginia (London, 1609), 47. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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, “l(fā)ess 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), 72–3. 44 Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge, MA, 2005), 10–48. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – but not true possession – 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 “l(fā)ack 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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” – use, rather than full property rights – 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 – dominium jurisdictionis. They were, in Bruce Clark’s words, “sovereign in the same way that the colonial government was sovereign – 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, 150–90. 50 The text of the Proclamation is printed inW. P. M. Kennedy, ed. Documents of the Canadian Constitution, 20–1. Cambridge Histories Online © Cambridge University Press, 2008 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 – and he was in no doubt that they had – 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 – the right of ne exeat regno – 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. Cambridge Histories Online © Cambridge University Press, 2008 Law, Colonization, Legitimation, and the European Background 29 Once established in their new country, their rights – which could only of course, be natural rights – 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 – 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: 946–7. Cambridge Histories Online © Cambridge University Press, 2008 30 Anthony Pagden beyond the frontiers of Europe – 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 – “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), 55–7. Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 2 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 – and perhaps more important – 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 “l(fā)aw” 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – what I here call “jurispractice” – 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 “l(fā)egal,” 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – arguably one of the most complex legal periods of American and U.S. history – 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 – for example, disputes Cambridge Histories Online © Cambridge University Press, 2008 The Law of Native Americans, to 1815 35 over boundary lines, fencing, and animal trespass – 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 – 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), 22–3. Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – east of the Mississippi River, south into Florida and Louisiana, north to the Canadian line, and along the Atlantic seaboard – 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. Cambridge Histories Online © Cambridge University Press, 2008 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: 210–35; Le Jeune, Jesuit Relations, 6:228–35. Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – chief and tribe or individual – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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: 210–261. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – territorial, personal, and subject matter – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 1622–5 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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, 1730–1815 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 – 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), 242–43. Cambridge Histories Online © Cambridge University Press, 2008 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 (1686–9) 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 Cambridge Histories Online © Cambridge University Press, 2008 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 (1754–63), 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 (1756–63), America had long ceased to be a sideshow on the stage of European rivalries. What many Native Americans had been requesting for years – that is, meetings with true representatives of the Crown – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – was an ideal that Jefferson himself never accepted fully as a real possibility. As in the Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – James Madison, James Monroe, and John Quincy Adams – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – no different from architecture or fashion – 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 “l(fā)aw.” 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 (1934–8), seemed definitive. The foundations apparently set, succeeding generations of historians 1 “Anonymous Notes for the Guidance of Raleigh and Cavendish” (1584–1585) in David Beers Quinn, ed., The Roanoke Voyages (London,1955), 1: 136. 63 Cambridge Histories Online © Cambridge University Press, 2008 64 Mary Sarah Bilder turned to different concerns. In part, too, for the imperial school historians – 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 – 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 – 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 – 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, Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 –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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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). Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 1568–9, 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 “l(fā)aws 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: 122–124; Petition to the Privy Council (1569) and “A brief of thinges allowable . . . (1569), 493–6. Cambridge Histories Online © Cambridge University Press, 2008 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 “l(fā)aws of England” appeared. The phrase included “l(fā)aws 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. Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – not necessarily the legal corporate entity – 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, 1603–1783 (Worcester, 1911), 53. 9 Calendar of State Papers, Colonial Series, America andWest Indies, 1574–1660, ed.W. Noel Sainsbury (1860; reprint, Vaduz, 1964), 1: 100. Cambridge Histories Online © Cambridge University Press, 2008 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 – in essence, a government – 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 – founded by settlers of Cambridge Histories Online © Cambridge University Press, 2008 English Settlement and Local Governance 73 a particular political-religious bent – 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 “l(fā)iberty 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 – referred to by Rhode Islanders as a “charter” – 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. Cambridge Histories Online © Cambridge University Press, 2008 74 Mary Sarah Bilder charter affirmed the colony’s “l(fā)ivlie 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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, 1804–1816), 2, Appendix, xl–xli; Virginia Colonial Records Project 578, § 2582, Virginia Center for Digital History, University of Virginia (www.virtualjamestown.org/virtjam6.html). Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – indeed, the failure of the Crown even to develop a uniform idea of what constituted colonial dependency – 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 – towns in New England, counties in the middle colonies, parishes in the Carolinas – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 (1690–2), Nicholson then became Governor of Maryland (1694–8), Virginia (1698–1705), and South Carolina (1721–5). Although New England governors’ loyalties often remained in the colony, southern 18William Bradford, Of Plymouth Plantation, 1620–1647, ed. Samuel Eliot Morrison (New York, 1952), 76. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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, 1670–1776 (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), 212–18. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – the power to make laws, hear cases, and revoke charters and patents – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – both its making and interpretation – 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 – Crown intertwined with legislative authority, known as the King in Parliament – 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, Cambridge Histories Online © Cambridge University Press, 2008 English Settlement and Local Governance 91 I want instead to plumb a component of colonial legal culture – the world of courts, attorneys, and law – 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 – 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) – 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 – and likely any legally trained judges – 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 – Massachusetts, Virginia, Connecticut, Rhode Island, and even Maryland – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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, 1691–1704 (New York, 1959), 1: 273 n. 27. Cambridge Histories Online © Cambridge University Press, 2008 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 – excessive litigation, excessive fees, excessive talking – 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– 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. Cambridge Histories Online © Cambridge University Press, 2008 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 “l(fā)aw” 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: 58–61. Cambridge Histories Online © Cambridge University Press, 2008 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, 1676–1701 (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: B1–2. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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: 75–6. Cambridge Histories Online © Cambridge University Press, 2008 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 “l(fā)ong 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 “l(fā)aws 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 – acts, ordinances, laws, statutes – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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–July 10, 1742] [Charleston: Printed by Peter Timothy, 1740–1742], 3, 9 (Early American Imprints, Series I (Evans), nos. 40211, 40286). Cambridge Histories Online © Cambridge University Press, 2008 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 1700–1. 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). Cambridge Histories Online © Cambridge University Press, 2008 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 – 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” – of allegiance to the Crown – 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 – dual authority created by supervised, constitutionally limited lawmaking – 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 (1765–1769; 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 “l(fā)egal 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 Cambridge Histories Online © Cambridge University Press, 2008 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 (1675–96) followed by the Board of Trade (1696–1782) 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 Cambridge Histories Online © Cambridge University Press, 2008 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]), 12–27. Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 108 Richard J. Ross Second, the Board might hold off recommending confirmation or rejection of statutes and allow them to “l(fā)ie 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 109 conveyed more than their primary content – 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 110 Richard J. Ross has called the “negotiated” quality of the English empire – 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 – constables, clerks, selectmen, justices of the peace, and sheriffs – 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 “l(fā)ocal” 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 – to Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 111 centralize – 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 – 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.1570–1710, 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – for instance, the Council of Castile. Cambridge Histories Online © Cambridge University Press, 2008 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, Cambridge Histories Online © Cambridge University Press, 2008 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 – 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, 383–416. 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – appointed by the Council of the Indies or the Crown’s representative, the viceroy – 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 6–8. 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – the Board of Trade, the customs service, the Admiralty, the church of England, the agents in London – 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 Cambridge Histories Online © Cambridge University Press, 20,08 Legal Communications and Imperial Governance 117 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – both of which, in different ways, responded to problems of distance. Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 119 reviewed misdemeanor convictions and civil cases, but only if they involved a substantial fine or amount in controversy – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 121 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 – appeals, correspondence, requests for guidance – 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 123 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 – 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 – most prominently, the Dominion of New England – but these were unusual and short-lived. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 125 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 127 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – viceroy or governor, audiencia, corregidores or acaldes mayores, cabildos, the fiscal administration, and the residencia and Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 129 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 – the Board of Trade, Privy Council, Secretary of State for the Southern Department, Treasury, Admiralty, and customs service – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 131 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 “l(fā)ie 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 – gubernatorial instructions and allowing Cambridge Histories Online © Cambridge University Press, 2008 132 Richard J. Ross statutes to “l(fā)ie by probationary” while inviting commentary – 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 – from Parliamentary statutes, equity and admiralty to ecclesiastical, merchant, and common law – 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 “l(fā)aw 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 Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 133 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 134 Richard J. Ross and “settled” colonies – 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 – a skill they developed to a high pitch and that they shared with trained lawyers and Spanish American letrados – 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 Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 135 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 137 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 Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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” – widows, orphans, and the poor – 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 Legal Communications and Imperial Governance 141 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – the Chesapeake and its Southern neighbors, New England, and the Middle Colonies. The peoples of early America were – as those of modern America remain – 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 – and now continues to animate – law in America. 144 Cambridge Histories Online © Cambridge University Press, 2008 Regionalism in Early American Law 145 The first two great cultural hearths of American law – the Chesapeake and New England – 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 – that is, to claim dominion and control over the land and the peoples they encountered there, whether “l(fā)awless” 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 – Virginia and Massachusetts Bay – 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 – 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – that is, through court practice and colonial statute – 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 – including, not least, generations of legal historians – 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 – a sort of legal regression to an ancient mean. According to this story – which has been embellished through time – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 “l(fā)aws 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 “l(fā)aborers.” 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – indeed, the conflicts – 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 “l(fā)aw” 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– 05. Cambridge Histories Online © Cambridge University Press, 2008 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 – indeed, to celebrate – 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 – a federal republic of constitutionally defined sovereignties – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – the law as applied in the central courts at Westminster – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – King’s Bench and Common Pleas – 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 – known as a “conciliar” court because composed of a council – 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, ([1765–69], reprint, Chicago, 1979), 3: 24, 30. Cambridge Histories Online © Cambridge University Press, 2008 152 David Thomas Konig Star Chamber procedures reflected the impulse to escape the rigidity of the common law, and such departures – like those that would take place in North America – 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 – the body of procedures and rules applied in the court of chancery – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – the archaic Norman language brought with the Conquest – 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 Cambridge Histories Online © Cambridge University Press, 2008 154 David Thomas Konig early modern England. It served too many masters to allow any particular attempt to impose conformity to succeed – 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), 57–8, cited by Norma Landau, The Justices of the Peace, 1679–1760 (Berkeley, 1984), 335. Cambridge Histories Online © Cambridge University Press, 2008 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 “l(fā)ocal 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 – 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 “l(fā)ocal 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 – 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: 68–9. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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– formerly an ecclesiastical jurisdiction – 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 – whether sale, mortgage, lease, will, or dower right – 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 – 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 – a demand that the New England Puritans refused even to consider – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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, 1660–1689 (Chicago, 1977), 15. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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), 313–70, citation at 336–37. Cambridge Histories Online © Cambridge University Press, 2008 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). Cambridge Histories Online © Cambridge University Press, 2008 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 “l(fā)ove 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online ©, Cambridge University Press, 2008 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 – loosely and in a de facto manner – 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, 484–85. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – indeed, emphasized – 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), 66–135, citations at 72, 79, 86, 94. 16 Tucker, “Of the Unwritten, or Common Law of England,” 321. Cambridge Histories Online © Cambridge University Press, 2008 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 – “and by far the most copious” – 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 – 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 “l(fā)ocal 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., 321–22, 326. 18 Ibid., 327–28. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 “l(fā)earned 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 – rejecting application of “the maxim, the father to the bough, the son to the plough.” Only a legally astute legal draftsman – not an artless rustic unfamiliar with the niceties of English common law – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – the “outward signs of inward grace” – 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 – population growth quickly made the half-mile rule impractical – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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 – 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 “l(fā)aw” of Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – especially in Connecticut – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – where, Blackstone observed, unity of person did not exist and “the husband and wife are considered as two distinct persons” – 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 – and perhaps resulted from – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 (1915–16), 465–66. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 Regionalism in Early American Law 177 Ultimately – when the newly independent states assembled to define a national legal system and establish a federal judiciary – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – imperial and colonial, free and slave – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 182 Michael Meranze punishments. On the recommendations of the judges and prosecutors, the Crown frequently granted pardons. Throughout the eighteenth century – and with increasing frequency after mid-century – 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: 10–11. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – through the jury and the audience – 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 – some by the leading ministers of the area – 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – not without reason – 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, 1674–1708, ed. M. Halsey Thomas (New York, 1973), 1: 509. Cambridge Histories Online © Cambridge University Press, 2008 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 21–28, 1736. 6 Franklin B. Dexter, ed., New Haven Town Records, 1649–1684 (New Haven, 1917–1919), 2: 12. Cambridge Histories Online © Cambridge University Press, 2008 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 – and differently coercive – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – especially in the colonies’ early years – 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 – or at least the threat – 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, 1637–1643,” quoted in Oliver Chitwood, Justice in Colonial Virginia (Baltimore, 1905), 89–90. Cambridge Histories Online © Cambridge University Press, 2008 Penality and the Colonial Project 191 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 Penality and the Colonial Project 193 the early emphasis on magisterial piety faded away. But in whatever variation, the Puritan emphasis on intrusive surveillance and magisterial inquisition was strong – 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 1645–58 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 Cambridge Histories Online © Cambridge University Press, 2008 194 Michael Meranze 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 – and also heated – 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 Penality and the Colonial Project 195 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 Penality and the Colonial Project 197 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 Penality and the Colonial Project 199 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 Penality and the Colonial Project 201 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 – 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, 1836–1841), 7: 359. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 (1915–1916), 457. Cambridge Histories Online © Cambridge University Press, 2008 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 – especially imperial-legal – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – and indeed the colonial practice of capital punishment – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – a true transatlantic discourse – 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 – to name only the most significant – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – arguably the most important targets of Southern punishments – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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 – 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – Middle Temple lawyer, Member of Parliament, confidant of statesmen, propagandist for colonizing – said it first and best. To “keepe” the country, it had to be planted – 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 – 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 – among the newcomers – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 “l(fā)ike 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. Cambridge Histories Online © Cambridge University Press, 2008 Law, Population, Labor 213 the conceptual structure – the organizational discourse – 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 – 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 – policing mobility, assigning place, defining social and economic roles, ascribing status, creating subjects and citizens, and regulating their behavior – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 “l(fā)arge 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 – 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 (1588–9), Gentili had written that those who violated canons of human society established by nature – kinship, love, kindliness, and a bond of fellowship – were brutes, on whom war might justly be made, 3 Alberico Gentili, De Iure Belli Libri Tres, John C. Rolfe trans. (Oxford, 1933), 80. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – enslaved Africans. Africans both enslaved and free (Atlantic Creoles, in Ira Berlin’s words) had been present in the Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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 1715–16 and the familiar process of expulsion of Indians for agriculture. Staple crop cultivation – notably rice – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – Pennsylvania, Delaware, the Jerseys, and New York – had the most diverse population of all the mainland regions. Indigenous confederations – Algonquian on the coast, Iroquois to the north and west – 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 6–8 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) Cambridge Histories Online © Cambridge University Press, 2008 218 Christopher Tomlins and approximately 311,000 forced migrant Africans. By 1780 the nonindigenous population stood at 2.7 million – 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 – 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 – the creation of an ideal emptiness meet to be filled – 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 – capacity for mobility – 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. Cambridge Histories Online © Cambridge University Press, 2008 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” – peers, knights and ecclesiastics, and in addition archers and artificers “l(fā)est 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 1765–1769, vol. I (Chicago, 1979), 130, 133–4, 255–6, 261. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – whether by unrestricted migration or natural growth – 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 – 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 – that movements of population were not autonomous of sovereign authority – 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), 522–28, at 526. Cambridge Histories Online © Cambridge University Press, 2008 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 – social and economic disorganization, dearth, mobility – 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 1348–51, 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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 – 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 – 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” – 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, 175–6, 234, 330, 340. Cambridge Histories Online © Cambridge University Press, 2008 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 – the Anglo-Scottish Borders, the Scottish Highlands and the Hebrides, Ireland – 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 – 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 – indirectly – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – that is, aliens granted the privilege of land holding, though not of heritability, by the Crown. It was agreed that Scots who were antenati – born prior to James’s accession to the English Crown – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – a right to hold land by the same tenures available in England, a right to some form of parliamentary governance – 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. Cambridge Histories Online © Cambridge University Press, 2008 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” – 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 – 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 – ordered rather than 10 Engin Isin, Being Political: Genealogies of Citizenship (Minneapolis, 2002), 153–4. Cambridge Histories Online © Cambridge University Press, 2008 Law, Population, Labor 227 dispersed settlement – 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 – interwoven layers of office, rank, privilege, obligation, boundary, and rule sorting and regulating all inhabitants. Penn’s ambitions were not dissimilar – 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 – 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 – the eutopolitan city and the surplus population of masterless vagabonds and vagrants – went together: the one a receptacle and an ordering device for the other. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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 60–65 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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” – 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 – a quite different institution – 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. Cambridge H,istories Online © Cambridge University Press, 2008 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 – “the better advauncement of Husbandrye and Tillage” – 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 – rural youth – 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” – a certificate, pass, or other document – 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 – anything from three to eleven years – in a relationship supervised by local authorities. Because English farm servants appear demographically similar to transoceanic migrant servants – male and youthful – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – the main region of mainland reception during the seventeenth century – as an example. Single males were absolutely predominant (the male:female sex ratio among indentured migrants was 6:1 in the 1630s, dropping to 3:1–2:1 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 20–34 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 13–14, 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 15–24 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – article of commerce – 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 – 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 (1631–2), 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – absconding, clandestine marriage, fornication – 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 – 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 (1633–1746/7, with gaps); Judgments & Orders [ JO], I (1746/7–1765, with gaps); Order Books [OB], I (1765–1768); Judgments & Orders, II (1768–1774); and Order Books, II (1774–1783); all located at Department of Historical Research, Colonial Williamsburg Foundation. Cambridge Histories Online © Cambridge University Press, 2008 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 – equally important – 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 – that is, permanently in bond to others – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – indeed, this was the sense of the legislation passed in the 1650s – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – hierarchical, youthful, and extended – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – youth/adult, migrant/creole, bound/free – 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 – whether in the Caribbean or on the mainland – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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 15–20 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. 1–8, 1636–83 (Salem, 1911–21; repr. 1988). Cambridge Histories Online © Cambridge University Press, 2008 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 – 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.” Cambridge Histories Online © Cambridge University Press, 2008 Law, Population, Labor 241 little of its detail. Only covenanted servants – those explicitly bound by written indenture or other form of explicit contract to furnish services on demand for a prescribed term – 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 “l(fā)awfull captives, taken in just warrs” – 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” – imported indentured servants and/or slaves. Finally came persons “who shall be judged thereto by Authoritie” – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – notably King Philip’s War (1676) – 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 – 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 – Indians, vagabonds, and “nightwalkers” – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 “l(fā)ove 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – transported convicts – simply helped confirm that, for European settlers, servitude was a status demarcated (as in New England) by age and origin – a condition for children and outsiders. Public records of bindings show little incidence of servitude among creole adults apart from debtors and local convicts. Cambridge Histories Online © Cambridge University Press, 2008 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 (1736–72) 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 50–75 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 20–25 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, 1718–1870 (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. Cambridge Histories Online © Cambridge University Press, 2008 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 1715–75, 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 – five additional days’ service for each day absent – 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), 71–97, esp. 96, 97. Cambridge Histories Online © Cambridge University Press, 2008 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 – as observers alleged – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – “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 – 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 – of age and gender, of race – 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 – 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 (1765–1776), Historical Society of Pennsylvania, Philadelphia. 25 Franklin, “On a Proposed Act to Prevent Emigration,” 527. Cambridge Histories Online © Cambridge University Press, 2008 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 – the law of servitude – 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 – 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 – indentured migrants, apprentices, slaves – 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, 1664–1776 (New York, 1935), 179. Cambridge Histories Online © Cambridge University Press, 2008 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 – the product of common law judging and reconceived common law doctrine – 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 – 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 – youthful, indentured, and so forth – 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. Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – the English, Spanish, French, Dutch, Portuguese, and Native Americans differed on this and other specific slave laws – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – Spanish, English, and French – to commingle slowly in more unitary statements about the permissible behavior of bondsmen. Eventually this gave rise to the creation of codes – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – the edicts of monarchs, the enactments of legislative assemblies, the opinions of judges – 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 – 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 – the difference Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – with papal blessing – 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 – relying on references to men like Thucydides and Cicero – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – including slave laws – 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 – the historical record is too fragmented. Cambridge Histories Online © Cambridge University Press, 2008 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 – sugar, in this case – 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 – Jamaica (1664), South Carolina (1690/1691), and Antigua (1697) – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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, 1809–1823), 2:170. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – in any case uncommon until the 1680s – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – particularly those in cities like Charleston – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – legal and illegal – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – and the increasing strain on comity – 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – they tended to focus on criminal activity by slaves, rather than the commercial aspects of slaves as property – 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 – that slavery was justified religiously and Cambridge Histories Online © Cambridge University Press, 2008 The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 287 philosophically – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – both common and statute – 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 The Transformation of Domestic Law 289 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 – that critical period of the creation of state constitutions and legal norms – 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. Cambridge Histories Online © Cambridge University Press, 2008 290 Holly Brewer consent – 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 – and the ability fully to consent – 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 – 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 – and to imagine – 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – and certainly for their wives and children – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – and the question of who is to be considered a member of which family – 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 – 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 – more broadly – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – the powers of masters and those of husbands and fathers – 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 “l(fā)ived 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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” – free land for each servant imported – 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 – blacks and captured Indians – 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 – including the legal sale of people (both white and black) and the legal capture of runaways (both white and black) – were similar throughout Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – both at statute and common law – 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 – or a master – 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 6–10 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 The Transformation of Domestic Law 297 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 – movable property – 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 Cambridge Histories Online © Cambridge University Press, 2008 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), 33–5; Susan Staves, Married Women’s Separate Property in England, 1660–1833 (Cambridge, MA, 1990), 206; Tim Stretton, Women Waging Law in Elizabethan England (Cambridge, 1998), 33–8. Cambridge Histories Online © Cambridge University Press, 2008 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 – and that he often remained in charge of the land that both had brought to the marriage – 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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, 1650–1750 (Oxford, 1980), 41. Cambridge Histories Online © Cambridge University Press, 2008 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 – especially in New England. Only if women had no brothers – characteristic of roughly one-quarter of families –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 – life estates and entails – 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 – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – as did the wife of Virginia Governor Berkeley in the 1670s – 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 – whether in the OldWorld or New – 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 – to learn a trade if one was lucky; otherwise simply as a servant, to learn “husbandry” or “housewifery.” Service was comparatively more common Cambridge Histories Online © Cambridge University Press, 2008 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 – especially once older than age 8 – 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 – a patronage appointment – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – John Randolph, for example, who was appointed king’s attorney for several Virginia counties at age eighteen – 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 – laid out in excruciating detail – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – he had Puritan sympathies and struggled with James I over the rights of Parliament – 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. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 – a guide for local justices of the peace, men usually without legal training – 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.” Cambridge Histories Online © Cambridge University Press, 2008 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 – 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), 130–1. 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), 341–65. On the meanings of chastize, see the OED (the third meaning is corporal punishment). Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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. Cambridge Histories Online © Cambridge University Press, 2008 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” – along with other basic rights, such as not to be killed, arrested, or banished – “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. Cambridge Histories Online © Cambridge University Press, 2008 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 – encompassing the land of all major peers – 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 – 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – at least in the short term – 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 – under Blackstone’s careful hand – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 – contracts for necessities and labor contracts. (Once aged 14 they can be held liable for crimes too.) Generally, 15 Blackstone, Commentaries, I, 410. Cambridge Histories Online © Cambridge University Press, 2008 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 – 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 Cambridge Histories Online © Cambridge University Press, 2008 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 alon |