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
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First published 2008
Printed in the United States of America
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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
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isbn 978-0-521-80305-2 hardback
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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
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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.
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xvi Editors’ Preface
intentional. Historians construct history by placing subjects in relation to
each other within the continuum of historical time. Historians manipulate
time by creating periods to organize the placement of subjects. Thus, when
historians say that a subject has been “historicized,” they mean it has been
located in what they consider its appropriate historical-temporal context or
period. Slicing and dicing time in this fashion is crucial to the historian’s
objective of rendering past action coherent and comprehensible, but necessarily
it has a certain arbitrariness. No matter how familiar – 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,
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Editors’ Preface xvii
the project has benefited from the support of two ABF directors, Bryant
Garth and his successor Robert Nelson, and the sustained and enthusiastic
interest of the Foundation’s Board of Directors during the tenure of
four Board presidents: Jacqueline Allee, M. Peter Moser, the late Robert
Hetlage, and David Tang.We owe a particular debt of gratitude to Robert
MacCrate for his early support and encouragement. As all this suggests, the
American Bar Foundation’s role in the production of The Cambridge History
of Law in America has been of decisive importance. The part the Foundation
has played underlines its standing as the preeminent research center for
the study of law and society in the United States and its long tradition of
support for the development of American legal history.
Cambridge University Press has, of course, been central to the project
throughout. We are grateful to the syndics for their encouragement and
to Frank Smith and his staff in New York for their assistance and support.
Frank first suggested the project in 1996. He continued to suggest it for
three years until we finally succumbed. During the years the History has been
in development, Frank has accumulated one responsibility after another at
the Press. Once we rubbed shoulders with the Executive Editor for Social
Sciences. Now we address our pleas to the Editorial Director for Academic
Books. But Frank will always be a history editor at heart, and he has maintained
a strong interest in this History, always available with sage advice
as the project rolled relentlessly onward. He helped the editors understand
the intellectual ambitions of a Cambridge history. Those who have had the
privilege of working with Frank Smith will know how important his advice
and friendship have been to us throughout.
Finally, the editors want to thank the authors of the chapters in these
volumes. A project like this is not to every author’s taste – some took
to it more easily than others. But together the sixty authors who joined
us to write the History have done a magnificent job, and we are deeply
grateful to every one. From the beginning our goal was not only to recruit
as participants those whom all would identify as leading figures of our field
but also to include those who, we were confident, would be leading figures
of its next generation.We are delighted that so many of each were willing.
We acknowledge also those who were unable for one reason or another to
see an initial commitment through to the end: their efforts, too, helped us
define and establish the project. And obviously, we owe a particular debt to
those others who came later to take the places of the fallen.
To oversee a project in which so many people have at one time or another
been involved has seemed on occasion like being the mayors of a village.
People arrive and (much less frequently, thank goodness) depart. Those who
settle in for the duration become a community of friends and neighbors.
Over time, one learns much from one’s friends and neighbors about the joys
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xviii Editors’ Preface
and vicissitudes of life. One learns who (and whose family) may be ailing,
and who is well. One learns of hurts and difficulties; one revels in successes.
And one may learn, as we did so sadly in August 2006, of an untimely
death. Notwithstanding the demands of his immensely successful career in
academic administration, our colleague Kermit Hall never laid down his
historian’s pen and was an enthusiastic participant in this project. He died
suddenly and unexpectedly. His contributions to the field have been great,
and he is greatly missed.
Throughout, the many authors in this project have responded courteously
to our editorial advice. They have reacted with grace and occasional humor
to our endless demands that they meet their deadlines. Sometimes they even
sent their manuscripts too. Most important, they have striven to achieve
what we asked of them – the general goals of a Cambridge history and the
specific goals of this history, as we have described them in this preface. Their
achievements are evident in the pages of each volume. In an individualistic
intellectual culture, the scholarship on display here demonstrates the
possibilities inherent in a collective intellectual enterprise. In the end, of
course, the editors, not the authors, are responsible for the contents of these
volumes. Yet, it is the authors who have given the History its meaning and
significance.
Michael Grossberg
Christopher Tomlins
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1
law, colonization, legitimation, and
the european background
anthony pagden
The conquest, occupation, and settlement of the Americas was the first largescale
European colonizing venture since the fall of the Roman Empire. Like
the Roman Empire, various occupying powers acquired overseas possessions
in territories in which they had no clear and obvious authority. Their
actions demanded an extensive reexamination, and sometimes reworking, of
whole areas of the legal systems of early modern Europe, just as they threw
into question earlier assumptions about the nature of sovereignty, utterly
transformed international relations, and were ultimately responsible for the
evolution of what would eventually come to be called “international law.”
Broadly understood, the legal questions raised by this new phase in
European history can be broken down into three general categories: the
legitimacy of the occupation of territories that, prima facie at least, were
already occupied; the authority, if any, that the colonizers might acquire
over the inhabitants of those territories; and – 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
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2 Anthony Pagden
overseas dependencies were, with the exception of Brazil, trading stations
(feitorias) not dissimilar to the factories the English later established in Asia
and were under the direct control of the crown. The French kings looked
on New France – 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.
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Law, Colonization, Legitimation, and the European Background 3
the Crown, and the various colonies and overseas dependencies difficult to
resolve. It was this lack of any single constitutional definition of empire
that led the historian Sir Robert Seeley in 1883 to make his famous remark
that it seemed as if England had “conquered and peopled half the world
in a fit of absence of mind.” And it would remain a defining feature of the
British Empire until its final demise in the twentieth century.
There was a further difference between the English and their European
rivals. From the beginning of their colonizing ventures, the English seem
to have taken a far more detached view of the possible relations between the
mother country and its colonies than their continental neighbors. Spain,
quite obviously, and France, less certainly, represented themselves as the
true heirs to Rome. Britain, which at least until the eighteenth century
had a very weak sense of itself as an empire – 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.
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4 Anthony Pagden
I. GROUNDS FOR POSSESSION
Like their European rivals the English could make no a priori claims to
rights of any kind in the Americas. “[We] shall be put to defend our title,”
the Virginia Company early recognized, “not yet publicly quarreled, not
only comparatively to be as good as the Spaniards, but absolutely to be
good against the Natural people.” Claims to both sovereignty and property
in the American had thus to be sustained on two fronts: first against prior
claims by another European power – 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.
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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.
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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.
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Law, Colonization, Legitimation, and the European Background 7
inheritance: a claim, that is, based on civil law. In America, however, this
claim obviously could not be used. There would seem, therefore, to be no
prima facie justification for “conquering” the Indians since they had clearly
not given the English grounds for waging war against them.
Like the other European powers, therefore, the English turned to rights
in natural law, or – 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.
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8 Anthony Pagden
Like all Calvinists, Coke adhered to the view that as infidels the Native
Americans could have no share in God’s grace, and because authority and
rights derived from grace, not nature, they could have no standing under
the law. Their properties and even their persons were therefore forfeit to the
first “godly” person with the capacity to subdue them. “If a Christian King,”
he wrote, “should conquer a kingdom of an infidel, and bring them [sic]
under his subjection, there ipso facto the laws of the infidel are abrogated, for
that they be not only against Christianity, but against the law of God and
nature contained in the Decalogue.”10 Grounded as this idea was not only
in the writings of Calvin himself but also in those of the fourteenth-century
English theologian John Wycliffe, it enjoyed considerable support among
the early colonists. As the dissenting dean of Gloucester, Josiah Tucker,
wrote indignantly to Edmund Burke in 1775, “Our Emigrants to North-
America, were mostly Enthusiasts of a particular Stamp. They were that set
of Republicans, who believed, or pretended to believe, that Dominion was
founded in Grace. Hence they conceived, that they had the best Right in the
World, both to tax and to persecute the Ungodly. And they did both, as soon as
they got power into their Hands, in the most open and atrocious Manner.”11
By the end of the seventeenth century, however, this essentially eschatological
argument had generally been dropped. If anything it was now
the “papists” (because the canon lawyers shared much the same views as
the Calvinists on the binding nature of grace) who were thought to derive
rights of conquest from the supposed ungodliness of non-Christians. The
colonists themselves, particularly when they came in the second half of
the eighteenth century to raid the older discussions over the legitimacy of
the colonies in search of arguments for cessation, had no wish to be associated
with an argument that depended upon their standing before God. For
this reason, if for no other, it was, as James Otis noted in 1764, a “madness”
which, at least by his day, had been “pretty generally exploded and hissed
off the stage.”12
Otis, however, had another more immediate reason for dismissing this
account of the sources of sovereign authority. For if America had been
conquered, it followed that the colonies, like all other lands of conquest,
were a part not of the King’s realm but of the royal demesne. This would
have made them the personal territory of the monarch, to be governed at the
King’s “pleasure,” instead of being subject to English law and to the English
Parliament. It was this claim that sustained the fiction that “New England
10 The Reports of Sir Edward Coke, Book VII (London, 1658), 601–2.
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.
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Law, Colonization, Legitimation, and the European Background 9
lies within England,” which would govern the Crown’s legal association
with its colonies until the very end of the empire itself. As late as 1913, for
instance, Justice Isaac Isaacs of the Australian High Court could be found
declaring that, at the time Governor Arthur Phillip received his commission
in 1786, Australia had, rightly or wrongly, been conquered, and that “The
whole of the lands of Australia were already in law the property of the King
of England,” a fact that made any dispute over its legality a matter of civil
rather than international law.
It was precisely because all conquered territories were a part of the royal
demesne that the monarch was able to grant charters to the colonies in the
first place. For however empty those charters might have been considered
by some, they were indisputably concessions made by the Crown. Charters,
wrote Thomas Hobbes, “are Donations of the Soveraign; and not Lawes but
exemptions from Law. The phrase of a Law is Jubeo, Injugo, I Command and
Enjoyn; the phrase of a Charter is Dedi, Concessi, I have Given I have Granted.”13
If this were so, and Hobbes is here stating a legal commonplace, then in
one quite specific sense the English colonies had feudal foundations. Most
of the lands in America had originally been granted in “free and common
socage” as of the manor of East Greenwich in Kent. This formula allowed for
what were, in effect, allodial grants, which derived from a contract between
the Crown and the landowner but at the same time avoided the duties of
feudal tenure – such as the need to provide auxilium et consilium, in effect
military assistance to the sovereign. In this way the colonies were both free
and unencumbered while at the same time remaining legally part of the
royal demesne, and every part of the terra regis had to form a constitutive
part of a royal manor in England. Land in Ireland, for instance, was held as
of Carregrotian, or of Trim or of Limerick or of the Castle of Dublin, and
when Charles II made over Bombay to the East India Company this land too
was granted in “free and common socage” of the manor of East Greenwich.
In the proprietorial colonies, by contrast, a large area of land was granted to
a single individual, who then allocated lands more or less as he pleased. But
even here the Crown still maintained that it possessed the ultimate rights
of ownership and that it could therefore dispose of the territory in question
as it wished. (The Spanish Crown, by contrast, although often represented
as the most despotic and centralizing of the European monarchies, only ever
made claims to exercise property rights in several limited areas which were
described as being under “the King’s head,” or cabeza del rey.)
The English King’s persistent belief that the overseas dependencies
remained his personal property, despite the charters that the monarchy
itself had granted to each of its parts, led to some strain in the relationship
between King and Parliament. When, in 1660, Charles II acquired
13 Leviathan, ed. Richard Tuck (Cambridge, 1991), 200.
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10 Anthony Pagden
Jamaica, together with Dunkirk and Tangier, he immediately moved that
these territories were also part of the royal demesne and thus his to dispose
of as he willed. As a preemptive move, on September 11, 1660, the House of
Commons passed a bill “for annexing Dukirke . . . and the Island of Jamaica
in America to the Crown of England.” Charles rejected this law, and on
October 17, 1662 sold Dunkirk to Louis XIV for £5 million. Selling off
what Parliament held to be parts of the realm was an extreme measure, but
there was little Parliament could do about it at the time. What was at stake
here was the status of private rights as against the sovereign rights of the
monarchy. The royal claim created obvious difficulties when, after the end
of the Seven Year’sWar, Parliament attempted to tighten its hold over the
fiscal and commercial activities of the colonies.
The exceptions to the rule were those areas, Maryland and the Carolinas,
which had been created as palatinates, “as of any Bishop of Durham, within
the Bishopric, or County Palatinate of Durham.”14 Although much reduced
in power since 1535, Durham itself remained a palatinate until 1836. The
bishop had, in effect, powers very similar to those of the Spanish viceroys.
The charter of Maryland also offered its proprietor, Lord Calvert, “free and
common socage.” In exchange for a nominal rent of two Indian arrows
and one-fifth of all gold and silver ore payable annually to the Crown, the
proprietor was given the right to grant or lease any portion of the territory
in fee simple or fee tail. Among other privileges he could also erect manors
with courts baron and courts leet.
Both approaches, however, still preserved lands as part of the royal patrimony,
albeit at one remove; consequently, both denied inhabitants any right
of appeal against their immediate proprietor. For as both the bishop and the
proprietor were, in effect, delegates of the Crown, the colonists could make
no claim to constitute an independent sovereign body. This resulted in some
very strained interpretations of the historical facts of conquest. In 1694 the
inhabitants of Barbados argued before the House of Lords that they were
entitled to rights under English law as “their birthright” because Barbados
had been, quite literally, uninhabited when they arrived. They were told
that, notwithstanding the facts of the matter, Barbados was nevertheless
held to be a “conquered territory.” Any protection the settlers might have
under English law was therefore at the discretion of the monarch. As Coke
put it, “If a king come to a Christian kingdom by conquest, seeing that he
hath vitae et necis potestatem, he may at his pleasure alter and change the laws
of that kingdom” – 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.
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Law, Colonization, Legitimation, and the European Background 11
would apply to the Americas, even if there was, in effect, no prior recognizable
system of legislation. Indeed, in Coke’s view it would apply with even
greater force in a country of “Infidels” such as America, because the laws of
such peoples had no basis in right at all.
Here the long-standing suspicion of conquest, which originated in the
Norman Conquest of Britain, could be turned to the Crown’s advantage. If
America had been conquered, its laws could only be made by royal decree,
and its inhabitants would be bound by those laws. Further, because those
laws were royal decrees they would not be subject to the provisions of Magna
Carta or any of the subsequent constraints that Parliament had succeeded in
imposing on the monarchy. This did not much appeal either to the settlers
or to Parliament, which took the view that, although such laws might have
been made by the monarch acting very much as, to use the Roman term,
“unfettered by law” (legibus solutus), once they had been enacted they became,
in effect, laws passed by Parliament. In Coke’s view, for instance, although
King John had introduced the laws of England into Ireland without Parliamentary
consent, “no succeeding king could alter the same without parliament.”
It was for this reason that Sir William Blackstone, in what has
become perhaps the most celebrated statement on the subject, declared that
“our American plantations” had been “obtained in the last century either
by right of conquest and driving out the natives (with what natural justice
I shall not at present inquire) or by treaties. And therefore the common law
of England, as such, has no allowance or authority there, they being no part
of the mother country, but distinct though dependent dominions. They are
subject, however, to the control of Parliament.”16
On occasion the same was also said of Ireland, which although indisputably
a land of conquest was nevertheless frequently described as a
“dominion separate and divided from England.”17 “Of all the objections
raised against us,” complained William Molyneux in 1698 of attempts to
classify Ireland as a colony and thereby to remove it from the legal jurisdiction
of Parliament, “I take this to be the most extravagant: it seems
not to have the least foundation or colour from reason or record. . . . Do not
the Kings of England bear the Stile of Ireland amongst the rest of their
Kingdoms? Is this Agreeable to the nature of a Colony? Do they use the
title of Kings of Virginia, New England or Maryland?”18 The same was
true of the Isle of Man, which, although governed by its own laws, could be
bound toWestminster any time Parliament chose because it had originally
been acquired under Henry IV “by conquest.”
16 SirWilliam Blackstone, Commentaries on the Laws of England, ed. Stanley Katz (Chicago,
1979), I: 105.
17 Howell, State Trials, II: 648.
18 The Case of Ireland’s being bound by Acts of Parliament (London, 1698), 148.
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12 Anthony Pagden
What Blackstone’s claim implied, of course, was that in the case of both
conquest and treaty (for a treaty could only be entered into by a sovereign
state) New England was not “within England.” Nor was it the case that
English law – 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.
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Law, Colonization, Legitimation, and the European Background 13
monarch their inhabitants could be denied the rights and freedoms enjoyed
by those of other places within the British monarchy was also perceived
by many to be a short road to the establishment of the kind of unfettered
legislative powers which the British constitution had struggled so hard for
so long to prevent. It was one of the reasons why Edmund Burke upheld
the rights of self-determination claimed by the American revolutionaries.
“In order to prove that the Americans have no right to their liberties,” he
wrote in 1776, “we are every day endeavoring to subvert the maxims which
preserve the whole Spirit of our own.”
No matter what the legal status of the colonies was thought to be in
England, in America de facto self-government in most of the settlements
resulted in a great deal of autonomous legislation. It also led, inexorably, to a
political climate in which, in Burke’s words, the colonists tended to “augur
misgovernment at a distance and snuff the approach of tyranny in every
tainted breeze.” The conflict over the status of the relationship between the
Crown and its overseas subjects first came to a head in the years after the
Restoration in 1660 when an attempt was made to transform the scattered
American colonies into something resembling the Spanish empire, with a
centralized structure. Between 1651 and 1696, a series of Navigation Acts
were passed whose purpose was to restrict trade between the colonies and
the mother country and to exclude the Scots from what was, in effect, an
English mercantile system. A new authority of the Privy Council called
the Lords of Trade and Plantations was also established to administer the
colonies, and although the name of this body still indicated the degree to
which the Crown looked upon its overseas possessions in Baconian terms,
it remained the case that this was far closer to the Spanish Council of
the Indies than anything that had existed previously. More significantly,
the royal charters of the corporate colonies were revoked by royal decree. The
Crown had already resumed the charter of the Virginia Company in 1624,
and between then and the 1680s various, although frequently inconsistent,
attempts were made to establish Crown sovereignty over all the remaining
settlements.
From the late seventeenth century until the eve of the Revolution, the
Crown or its more legal-minded officials had looked with envy at the
degree of administrative and judicial authority the Spanish exercised in their
colonies. In the opening years of the eighteenth century, the English political
and economic theorist Charles Davenant, although one of the fiercest
critics of what he saw as Spanish cruelty and Spanish popery, nevertheless
recommended that “a constitution something like what we call the Council
of the Indies in Spain” should be established in Britain. “Whoever considers
the laws and political institutions of Spain,” he went on, “will find them
as well formed, and contrived with as much skill and wisdom, as in any
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14 Anthony Pagden
country perhaps in the world.”21 In accordance with this sentiment, by the
1670s the Crown had begun to put into operation a plan to divide the
thirteen colonies into four separate viceroyalties.
In the end, however, only one viceroyalty was ever established, the
Dominion of New England, which combined the former colonies of New
England – 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.
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Law, Colonization, Legitimation, and the European Background 15
thirteen colonies that would make up the new United States had already
been securely established and most of their remaining indigenous populations
effectively dispossessed. The claim that the earliest, and crucial phase
of colonization was based solely on discovery provided the historical basis
for Marshall’s celebrated ruling in Johnson v. M’Intosh (1823). It became an
accepted commonplace and was repeated frequently by the United States
with regard to its own internal colonization.22 It seems to have been based
very largely on Marshall’s reading of Henry VII’s letters patent to John Cabot
of 1496, which had echoed exactly the terms of the bulls by which Pope
Alexander VI had granted to the Catholic Monarchs of Spain, Ferdinand
and Isabella, dominion over all territories in the western hemisphere not
already occupied by another Christian prince. In Marshall’s understanding
the right to occupation derived not from the conquest of such territories
(although Cabot is explicitly charged with conquest) but from the absence
of occupation by any power that the English were prepared to recognize as
sovereign.
Even if such an interpretation of Henry VII’s letters is warranted, it
is difficult to see how a man of Marshall’s learning could have insisted
that “discovery” had continued to be the sole justification employed by the
English Crown in view of all the subsequent evidence. But Marshall was
certainly not the first to make this claim. In 1754, faced with the prospect of
a French invasion, the delegates to the Albany Congress agreed “[t]hat his
Majesty’s title to the northern continent of America appears founded on the
discovery thereof first made, and the possession thereof first taken, in 1497
under a commission from Henry VII of England to Sebastian Cabot.” In
1774, James Abercromby, as influential a jurist as Marshall in his own day,
stated, “The point of Territorial Right in America at first turned totally, on
the priority of Discovery.” These statements show that from the moment
that the colonists began to distance themselves from the Crown, until well
after independence, there existed a movement to redefine the question of
legitimacy in such a way as to remove the notion that America had ever
been, de facto or de iure, a land of conquest.23
Proponents had good reason for wishing to do so. Marshall clearly
shared with his near contemporary, Joseph Story, and with John Adams
22 U.S. (8 Wheaton) 543.
23 “Representation of the Present State of the Colonies,” in Benjamin Franklin, The Papers
of Benjamin Franklin, ed.William B.Wilcox (New Haven, 1959–1993), V, 368; Magna
Charta for America: James Abercromby’s “An Examination of the Acts of Parliament
Relative to the Trade and the Government of our American Colonies” (1752) and “De
Jure et Gubernatione Coloniarum, or An Inquiry in the Nature, and the Rights of Colonies,
Ancient, and Modern” (1774), ed. Jack P. Greene, Charles F. Mullett, and Edward C.
Papenfuse, Jr. (Philadelphia, 1986), 200.
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16 Anthony Pagden
the widespread unease that the United States might have been created on
lands that had been seized illicitly from their original occupants, who might
therefore at any time attempt to claim them back again.24 In view of recent
developments in Canada, and the ruling of the Australian High Court in
Mabo v. The State of Queensland (1992) conceding that the land of the Meriam
peoples of the Murray Islands in the Torres Straits had been unjustly taken
from them, he had some grounds for anxiety.25 For all that he is represented
as one of the earliest defenders of aboriginal rights, Marshall, like most
of his contemporaries, looked upon Indians as what he called “domestic
dependent nations,”26 who might possess the “right to retain possession
of it [the land] and to use it according to their own discretion,” but nevertheless
enjoyed greatly diminished “rights to complete sovereignty, as
independent nations.”27 To make good this claim, their lands had to have
been acquired by any means other than force.
Abercromby, Story, Adams, and Marshall all knew that, of all the claims
to sovereignty made by the European powers in America, discovery had, in
what by Marshall’s day had become known as international law, been the one
discredited most easily. As English jurists of the seventeenth century were
quick to point out, even the Spanish had been reluctant to base assertions of
either sovereignty or possession on anything so flimsy. “Discovery,” observed
the great Spanish theologian Francisco de Vitoria, “of itself provides no
support for possession of these lands, any more than it would if they had
discovered us.”28 But flimsy or not, discovery had the advantage not only of
securing rights of occupation “in nature” but also of distancing the history
of the English settlements in America from those of the Spanish, which
successive generations of English jurists had maintained were, in fact, little
more than usurpations. It was for precisely these reason that the settlers
in Barbados had argued that their lands, genuinely unoccupied, could not
possibly be counted as conquests.
Both Marshall and, more immediately, Abercromby were also the beneficiaries
of an Enlightenment attempt to detach the legacy of the crumbling
24 “The European power which had first discovered the country and set up marks of
possession was deemed to have gained the right, though it had not yet formed a regular
colony there.” Commentaries on the Constitution of the United States, 2 vols. (Boston, 1891),
2 vols. [first published 1833], I: 106.
25 This is the celebrated Mabo case. Commonwealth Law Reports (Australia) 175 (1991–1992),
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.
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Law, Colonization, Legitimation, and the European Background 17
Spanish empire from that of the more robust and prosperous British and
French settlements. By the middle of the eighteenth century it was widely
assumed across Europe – 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.
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18 Anthony Pagden
most widely read legal texts of the seventeenth century, Mare clausum, a
defense of England’s right to close the North Sea to foreign shipping.
Grotius’s argument had centered on the question of whether discovery
could be grounds for dominium –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.
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Law, Colonization, Legitimation, and the European Background 19
of stone crosses, planting flags, burying bottles and other such devices to
which generations of Europeans had resorted were quaint and wholly insubstantial
as legally recognizable claims to possession. “To pass by and eye,”
as the French King Francois I once icily informed the Spanish ambassador,
“is no title of possession.”
Before the English could claim that discovery had made them legitimate
masters of America, therefore, they had not only to have been there first but
they had also to have exercised some kind of actual sovereignty. Yet, in a
great many of the areas to which they laid claim, their presence was merely
proclamatory or cartographic. At a time when the only English presence
consisted of a handful of settlers in the malarial swamps along the banks of
the St. James River, the Virginia Company’s charter declared it exercised
jurisdiction over all “territories in Am,erica either appertaining unto us, or
which are not now actually possessed by any Christian prince or people,
situate, lying and being all along the sea coasts between four and thirty
degrees of northerly latitude from the equinoctial line and five and forty
degrees of the same latitude, and in the main land between the same four
and thirty and five and forty degrees, and the islands thereunto adjacent or
within one hundred miles of the coast thereof.” In fact, the English knew
little about either the real extent of these territories or the nature of their
inhabitants. The charter’s outlandish territorial claims belong rather to the
language of international diplomacy and were intended to establish primacy
over any other European power in the region, in particular the French. As
the drafters of the charter would have known, no right of discovery could
ever be made undisputedly against any prior occupant. Sovereignty, that
is, required not only discovery and a real presence. It also required that
the territories being occupied should be truly vacant or terra nullius. “I like
a plantation in a pure soil,” Francis Bacon had written in 1625, “that is,
where people are not displaced to the end to plant in others. For else it is
rather an extirpation than a plantation.”33
Terra nullius is a principle which has been much discussed and remains a
topic for debate in both Australian and Canadian disputes over the rights of
indigenous peoples. It therefore requires some clarification. The term itself,
although widely used by historians to describe claims made in the early
modern period, does not in fact appear before the mid-nineteenth century.34
It has its origins, however, in Justinian’s Digest XLI. 1 and the law Ferae
bestiae, of the Institutes (II. 1. 2), which simply states, “Natural reason admits
the title of the first occupant to that which previously had no owner.” It is
also significant that the idea of vacancy, of being “of no-one,” is a concept in
33 On Plantations, in The Works of Francis Bacon, ed. James Spedding, 14 vols. (London,
1857–74), VI: 457.
34 I am grateful to David Armitage for pointing this out to me.
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20 Anthony Pagden
natural law that, along with many such general claims, Justinian’s lawyers
had absorbed into the Roman civil law. No such process was available,
however, in English law in which all land occupied by Englishmen was
ultimately the property of the Crown and had been acquired either though
descent or, as was claimed of America, through conquest. Precisely because
it was in origin a natural right, whose only codification is Justinian’s brief
entries, the principle of terra or res nullius is expressed in several different and
sometimes frankly contradictory ways. This has led some modern historians
to argue that, as a legal claim to possession in America, terra nullius was
devised ex post facto – 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.
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Law, Colonization, Legitimation, and the European Background 21
over non-Europeans on the grounds of their greater technical capacities,
was certain that although the occupation of lands formally under the jurisdiction
of the Ottoman state would be licit the settlers would nevertheless
be bound to accept the sovereignty of the Sultan.36 The same general point
was also made in the following century by Hugo Grotius.
A more demanding criterion had therefore to be found. This was based
on what came to be called “improvement.” The obligation on any holder of
land deemed to be terra nullius to improve it was applied literally by both
the English and the French. In 1648, for instance, the General Court of
Massachusetts decreed that anyone who received a grant of land by what
the court termed vacuum domicilium but did not build on or “improve” it
within a space of three years would lose it.37
The concept of improvement also had its origins in natural law. Since
antiquity, it had been assumed that one of the features of humankind was the
uniquely human ability to transform nature, or, in conventional Aristotelian
terms, to make actual what was otherwise only potential. This was the root
meaning of technology. Possession and sovereignty were consequently acts
that established relationships between persons and their external and social
worlds. Because those who failed to develop nature’s potentiality could
not be counted as true persons, they could not possibly establish such
relationships. “God and his Reason,” wrote John Locke in what was to
become the most influential formulation of this supposition, “commanded
him to subdue the Earth, i.e. improve it for the benefit of Life, and therein
lay something upon it that was his own, his labour. He that in his Obedience
to this Command of God, subdued, tilled and sowed any part of it, thereby
annexed to it something that was his Property, which another had no Title
to, nor could without injury take from him.”38
Locke’s celebrated theory of property is, in effect, a development of Ferae
bestiae, and clearly it evolved in the context of the debates over the rights
of the American Indians in the years preceding the Glorious Revolution.
But what Locke had done, and which no previous writer on the topic
had attempted, was to associate the claims to possession with those of
sovereignty, because now what was being claimed was that only persons
who lived in civil society could possibly exercise property rights. What
this implied in the American context was far reaching. Nothing short
of agricultural exploitation and a recognizable civil society could provide
grounds for legitimate political control. The Native Americans, by general
36 De Iure belli, trans R. C. Rolfe (Oxford, 1933), I, XVII, para 131.
37 Records of the Governor and Company of the Massachusetts Bay, ed. Nathaniel Shurtleff
(Boston, 1853–4), II: 245.
38 Locke’s Two Treatises of Government, 309: Second Treatise 32.
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22 Anthony Pagden
consent, lacked the capacity to employ culture in this manner. They might
live on the land, but because, in Robert Cushman’s words, “they run over
the grass as do also the foxes and wild beasts,” they could not be said to
possess it.39 And since they did not possess it, any attempt on their part
to prevent the Europeans from putting it to its proper natural, and in the
terms employed by Locke, also God-ordained use, constituted a violation of
the natural law. As such they could, in Locke’s celebrated denunciation, “be
destroyed as a Lion or a Tiger, one of those wild Savage beasts, with whom
Men can have no Society nor Security.” Furthermore, under the terms of the
ius ad bellum (the law, that is, which governs the condition under which a war
may be waged) the would-be settlers might make war on such peoples “to
seek reparation upon any injury received from them.”40 In other words, the
seizure of the lands from “those wild Savage beasts” might indeed, involve
conquest, but now it was wholly legitimate under natural law, rather than
a status established under English civil law.
Despite the considerable difficulties it presented and for all that
it involved a necessarily slippery distinction between possession and
sovereignty, terra nullius became perhaps the most enduring of the natural
rights arguments for overseas occupation. The colonists who through the
seventeenth and well into the eighteenth century had maintained that their
rights depended upon purchase from legitimate indigenous landowners (to
which I shall return) gradually began to turn to one or another version of
the “agriculturalist” argument – 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.
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Law, Colonization, Legitimation, and the European Background 23
recognized de iure as conferring retrospective rights of property and of
jurisdiction. Despite its Roman origins, prescription was entirely in keeping
with most English constitutional thinking and with the process of the
English common law. “Our Constitution is a prescriptive Constitution”
declared Edmund Burke:
it is a Constitution, whose sole authority is that it has existed time out of
mind . . . Prescription is the most solid of all titles, not only to property, but, which
is more to secure that property to Government. . . . It is a better presumption even
of the choice of a nation, far better than any sudden or temporary arrangement by
actual election. Because a nation is not an idea only of local extent and individual
momentary aggregation, but it is an idea of continuity, which extends in time as
well as in numbers, and in space.41
The legitimacy of a state or condition, that is, depended on its continual and
successful existence. Crucially, because prescription relied upon objective
conditions, it was able to transform natural into legal rights, and in the
end, in America, it was always legal rights that were under discussion.
Prescription, however, also presented considerable difficulties of interpretation,
particularly in the American context. One of the most obvious was
the length of time required to establish title. The English, claimed Robert
Johnson in 1609, had been in Virginia “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.
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24 Anthony Pagden
of Darien in 1699, acknowledged that the only rights which the Spaniards
might have in America derived exclusively from their “claim and upon the
foot of prescription thro’ their having inhabited, occupied and inherited
them for 200 years without interruption, disseizure or dispossession.”43
This implied that Ferguson’s own attempts to supplant them would be
invalid in law, unless, as he hoped would happen, the indigenous people
turned out to welcome the Scots as saviors from Spanish tyranny – 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.
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Law, Colonization, Legitimation, and the European Background 25
The Dutch may have preferred the idea of cessation because of religious
scruples and because their presence in America was always over-stretched.
The British had similar motives for denying their own official status as
conquerors. But they were also aware that a conqueror in the service of
a monarch could only ever be a subject and, at least by feudal contract,
a vassal. If, in contrast, the settlers had purchased their lands, they might
claim some measure of independence from the Crown or, where this applied,
from the proprietary holder of the colony. Understanding this concept,
Maryland’s proprietor declared all lands purchased from the Indians subject
to forfeiture.
Furthermore, if the colonists had purchased their lands or acquired them
through treaty, it followed that the indigenous peoples had been in legitimate
possession of them; otherwise the lands would not have been theirs to
sell. The English, insisted Edward Rawson in The Revolution in New England
Justified (1689), had “purchased from the Natives their right to the soil in
that part of the world, not withstanding what right they had by virtue of
their charter from the kings of England.” Rawson was a supporter of the
revolt against the Dominion of New England – to which the title of his
pamphlet refers. In the eyes of the colonists, one of the more heinous crimes
of the late governor, Edmund Andros, had been precisely to dissolve all land
claims based on what he called “pretended purchases from the Indians” on
the grounds that “from the Indians no title can be Derived.” If that action
were allowed to stand, a group of prominent Bostonians protested, “no Man
was owner of a Foot of Land in all the Colony.” As Rawson stressed elsewhere,
any attempt by the Crown to limit the rights to self-determination that the
English had acquired by “venturing their lives overseas to enlarge the King’s
Dominions” made them a conquered people, “deprived of their English liberties
and in the same condition with the slaves in France or Turkey.” In
1721, Jeremiah Dummer reiterated the same point. There could exist “no
other right than that in which the honest New-England planters rely on
having purchased it with their money. The Indian title, therefore, as much
as it is decry’d and undervalued here, seems the only fair and just one.”45
If, however, America were a land of conquest and thus a part of the royal
demesne, any contract to dispose of any part of it between parties who were
both subjects of the Crown was necessarily invalid. In addition, even if
such purchases were considered to be merely private agreements they were,
as many subsequent historians have pointed out, generally fraudulent. At
least by implication, this was the point made by the Royal Proclamation
of 1763, which set out the principles of government for the lands acquired
by the British by the Treaty of Paris at the end of the Seven YearsWar.
45 Jeremiah. Dummer, A Defence of the New-England Charters (London, 1721), 14.
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26 Anthony Pagden
The purpose of the Proclamation was to bind the former New France
much more tightly to the Crown than the original English settlements
in North America. To achieve this objective the Crown was compelled to
limit the damage that might be inflicted upon Native American interests
by colonists’ intrusions on their lands. Hence the Proclamation conferred
on what came to be called the “Aboriginal Peoples of America” a form
of ill-defined de iure nationhood that ceded a large measure of autonomy
to “the several Nations or Tribes of Indians.” The Proclamation accepted
that the Indians had use – 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.
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Law, Colonization, Legitimation, and the European Background 27
the statute a sentence: ‘The aboriginal peoples of Canada shall continue to
have all their rights and freedoms as recognized by the Royal Proclamation
of 1763’.”48
The Proclamation clearly intended to grant a measure of legal autonomy
to the Native Americans, as successive interpreters have supposed. But the
repeated references in the document to the “sovereignty,” “protection,” and
“dominion” that the British Crown exercised across the whole of America,
north of New Spain, Florida, and California make it clear that this autonomy
was intended to be severely limited. The Indian “nations” may have been
self-governing communities with rights over their own ancestral lands. but
they certainly could make no claims to independence from His Majesty.
Indian rights did comprise the king’s seisin fee – 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.
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28 Anthony Pagden
But the argument from purchase was too powerful to be disposed of so
easily. For, as Richard Price argued in 1776, if the lands of the settlers had
indeed been purchased and developed – 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.
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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.
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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.
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Law, Colonization, Legitimation, and the European Background 31
European monarchy had permitted its settler populations. The entire subsequent
history of law in the United States, the fact that much of it remains to
this day closer to its English common law origins than the legal systems of
any of the other former European colonies in the Americas resemble theirs,
has its origins in their experience of de facto independence.
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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
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The Law of Native Americans, to 1815 33
nations, and confederacies that made up the various governments of indigenous
people. But if jurisprudence is the philosophy of law, and if law itself is
interwoven, sometimes inextricably, with morality, custom, or other means
to force people to act in ways they would not otherwise choose, American
Indians certainly possessed law. They may have had no way in which to
disperse and debate philosophical principles, but they shared certain concepts
that created a legal mentalit´e – 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.
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34 Katherine A. Hermes
Overall, what emerges from all these sources is an imperfect picture of
Native American jurispractice, but one that is nevertheless quite recognizable
as law.
Tracing the evolution of jurispractice during the period after contact with
Europeans requires recognition of several fundamental realities. First, there
were many levels of contact. The 500 or more Native American tribes and
nations that existed at the time of contact were not homogeneous. All had
laws particular to their cultures that may or may not have been shared with
others, even nearby native communities. Second, several layers of European
and colonial government came first to interact with and then to overlie
the heterogeneous sovereign entities of the tribes themselves. By 1815, the
native peoples residing in the area of the modern United States had been
subjected to the law of Spain, of France, and of England; to the law of the
colonies and subsequently states that formed around them; to the law of
the United States under the Articles of Confederation; and lastly to the
law of the United States under the Constitution of 1787. As if these many
entities, each claiming sovereignty or at least some degree of dominion
over the native peoples in their territories, were not enough, the process of
colonization itself created a divide between types of Indians that affected
which law applied to them. Native peoples who maintained themselves in
autonomous Indian communities retained a measure of self-government;
in theory this distinguished them from individual Indians who lived in
colonial towns and who therefore were under some form of colonial law.
To understand the effect of contact on Indian jurispractice through the
early nineteenth century – 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
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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.
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36 Katherine A. Hermes
in the European world had a bearing on the shift. First, even as the number
of Indians decreased, settlers’ fear of them grew. The legal culture
of the English settlements, meanwhile, became generally less hospitable
to Native Americans as it became more “English”; as the common law
ascended, English legalities became more adversarial, more formal, and
less equitable. In addition, changes among the Indian population altered
their participation in the system they helped create. Some Native Americans
became increasingly hostile to Europeans and rejected cooperation
altogether. Other Native Americans opted for accommodation or assimilation
and began using the colonial court systems without the protections,
demands, or special processes they had once reserved fo,r themselves. Among
those who adapted to European ways there were gendered divisions in the
use of laws and legal procedures. Women, perhaps because they tended to
become domestic servants if they lived among colonists, sometimes saw
European legal practices as expeditious, such as the writing of wills to
transfer property and ensure inheritance. Men, in contrast, especially as
time went on, became suspicious of European legal instruments that had
so often proved deceptive, such as land deeds.
Europeans, meanwhile, used their opportunities to dominate in ways that
were not merely oppressive but might be described as casually abusive. The
rules shifted from one town to the next and across colony lines. They were
insisted on at some times, but not at others. Overall, European legalities
were simply unpredictable. It became impossible for Native Americans to
guess which protocols and processes might be required in colonial courts
or when they had to resort to them, making it very difficult to maintain
standing or to operate at all effectively within two separate yet overlapping
spheres of jurispractice.
One final factor must be mentioned before embarking on the story of
Native American law and of how a negotiated realm of jurispractice arose
and fell in North America as divergent legal ideas vied for space. It is crucial
to touch on the effect of this evolutionary process on Anglo-American or
U.S. law. The idea that Native Americans contributed anything to Anglo-
American or U.S. law is hotly contested among scholars. Although it is
a truism that in cross-cultural encounters neither side remains unchanged
by the other, this does not mean that every aspect of one culture will be
influenced by the other. Nevertheless, there are legal practices that historians
and anthropologists, and even eighteenth-century contemporaries, suggest
might have come to the present from the indigenous past in America.
When Sarah Kemble Knight, a female traveler who in 1704 wondered in
her journal whether the New England Indian custom of casually casting
away one’s spouse might be responsible for the high rate of divorce among
couples in Connecticut, she was not without grounds for her speculations.
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The Law of Native Americans, to 1815 37
When modern historians suggest that the Iroquois Confederacy might have
contributed to the conception of a U.S. federal government, they should not
be taken lightly. No conclusive proof of direct adoption from Native law
to European law exists at the present time, but among scholars the inquiry
has only just begun in earnest.
I. FROM THE BEGINNING: THE LANGUAGE, STRUCTURES,
AND PRINCIPLES OF NATIVE AMERICAN LAW
In separating certain periods from others, pre-contact from contact, colonial
from post-Constitutional, one must bear in mind that at no time was the
law of Native America institutionally stagnant. When one looks at precontact
law and considers native traditions and how they were changed by
contact, it is imperative to recognize that these legal systems would have
changed in any case. Most native legal systems in North America were quite
flexible. Like many systems that use custom to judge present cases, and this
included Anglo-American legal systems, the good of the community as it
stands weighed on the minds of those judging the case at hand. Throughout
native North America, whether the system was based on the use of councils
who adjudicated disputes or dependent on a paramount chief who decided
matters in consultation with his advisors, law was personal. In face-to-face
communities, no judgment was distanced from the people who wanted a
resolution.
Before 1815, the Native Americans who lived within what would become
the borders of the United States – 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.
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38 Katherine A. Hermes
The first visitors from Europe reported almost universally that they had
found a people without laws. Visitors friendly to the natives accorded them
a knowledge of the law of nature, but no system; for example, the Jesuit
missionary Jean de Br´ebeuf described the Huron as “not without laws”
and left a description of their system of punishment, which noted that
they punished murderers according to a four-step ritual, with a specific
incantation for each step. Skeptics believed them to be completely lawless.
Another Jesuit, Paul Le Jeune, held that loyalty to a chief was the only reason
the Montaignes were constrained from killing one another. “[T]he Indians
have neither civil regulation, nor administrative offices, nor dignitaries, nor
any positions of command,” he wrote.4
A few reformers guessed that there had once been a legal system among
natives, but that it had been destroyed. In a 1553 letter to Charles V, Louis de
Le´on Romano, an administrator of the viceroyalty of New Spain, described
native society as “without order and governance whatever.” Yet, Romano
insisted this was “because the system of government has been turned so
much to the opposite of what it once was. For the sort of people they are,
their former system of government was the best that ever [a] nation had,
except for the salvation of their souls.” Indeed, the indigenous people in
North America did have laws and legal systems, just as they had religious
beliefs and practices that were also invisible to many European observers.
Some systems were more complex than others. Their languages demonstrate
some of the legal concepts Native Americans held, though one cannot
infer too much from the existence of a word if there is no evidence as to what
natives really understood it to mean. (Frequently, that evidence is missing.)
The Algonquians had certain words that signified the practice of law. The
root “tepa” or “tipa” combined with “wa,” “wew,” or “kew” meant judging
or measuring something; it could even mean to control. That this word for
judge probably had some legal meaning can be inferred from the words that
surround it: in Cree, an Algonquian language, the expression “tipeyeimew”
meant “he rules over him.” In Nahuatl there were words to express such
technical and complex ideas as land and water rights, as well as words for
many types of rulers. The Nahuatl word “altepetl” expressed the idea of
“city-state.” The Muskhogean tribes include, among others, the Choctaw,
Creeks, Chickasaws, Seminoles, and Apalachi. The Cherokee, who would
be recognized by Europeans as one of the “Five Civilized Tribes,” spoke
an Iroquois dialect. Whether the Cherokee linguistic difference had any
enabling effect on their later development of an alphabet and a constitution
is a matter for speculation, but the Iroquois language and culture seem to
have facilitated certain political associations.
4 Br´ebeuf, Jesuit Relations, 10: 210–35; Le Jeune, Jesuit Relations, 6:228–35.
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The Law of Native Americans, to 1815 39
The Confederacies make up an important part of the legal landscape
for native North America. At first viewed by historians primarily as political
entities, the confederacies are currently seen as economic and military
alliances. They were also entities that maintained legal structures and
enforced legal customs among their members. Among the eastern tribal
nations such alliances were common, both as a means of protection and
a system of tribute. The first alliance encountered by Europeans was the
Iroquois Confederacy, formed about 1390, which consisted of five nations:
the Seneca, Oneida, Mohawk, Cayuga, and Onondaga. The Iroquois Confederacy
spread across the Ohio Valley, up toward the Great Lakes, and into
the St. Lawrence River Valley around present-day Quebec. In 1715, the
Tuscaroras of Virginia moved northward and joined the Iroquois Confederacy
when English settlement across the Blue Ridge Mountains made it too
difficult to remain in that region.
The Iroquois Confederacy had a very distinct system of law when compared
with other eastern cultures. The confederacy itself was a diplomatic
and military bond, which later evolved into an economic unit as well. The
Iroquois depended on frequent meetings, spending considerable time in
council. Groupings for council were determined by locality, sex, age, and
the specific question at hand. Each had its own protocol and devices for
gaining consensus.
The Hurons, like most northern Indians, also made decisions by council.
In some villages the council met daily. There were a set of elders who
garnered respect at these meetings, but the forums were open. Huron councils
exerted little control over individuals, beyond what was necessary to
keep social order. The councils had a formal protocol, and even the oratory
was procedural, with each speaker summarizing the issue and arguments
of the previous speaker. In a non-literate society, this method could have
been a means to ensure that everyone understood the issues and arguments;
listening was an essential quality. Br´ebeuf admired the practice, which he
thought gave clarity to the proceedings and made it easy for a stranger to
understand what was going on.
Whatever structure of legal decision making was in place, the most
important legal concept among Native Americans was the principle of
reciprocity. Reciprocity was first recognized as a principle common among
native peoples by early twentieth- century anthropologists, although somewhat
anachronistically and without any historical particularism. In fact, the
principle had important variations among Native Americans in the colonial
period. Moreover, although it is true that the principle of reciprocity was
used in other areas of society, from religion to economics, its use as a legal
principle was particularly distinctive among the several tribes, nations, and
confederacies.
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40 Katherine A. Hermes
For the native peoples, the practice of give-and-take transcended legal
boundaries and existed as an economic and social value. In the legal realm,
however, it meant that reparation could be made for wrongdoing. It also
meant that, when a wrong occurred, all parties took away something so
that, in most cases, no one bore the entire burden of the legal infraction.
Europeans found Indian legal customs unfathomable when they observed
such processes at work, but they also accepted that the core value of reciprocity
corresponded to their own systems of law. For Puritans and legal
reformers in New England, the value in reciprocity was that it allowed the
law to be a mediator between parties rather than an adversarial tool. For
the French and the Dutch, both of which had civil law rather than common
law systems, justice was less about moral absolutes and more about fairness.
Thus, in the period of contact, from about 1600 to 1675, all four interacting
legal systems were operating on an assumption that justice could be and
should be equal between all parties.
An example of reciprocity in native jurispractice was the concept of restitution
for harm. In the current Anglo-American system of law, tort law and
criminal law present two different types of legal redress for dealing with
harm.We now think of the state as the complaining party in criminal cases,
though even in England in the seventeenth century, individuals could bring
private criminal prosecutions. In Indian North America few tribal nations
had a concept that distinguished between criminal and civil offenses as
precisely as English law, but most had a system that involved the group
in seeking redress for the individual and determining whether both the
individual and the group needed compensation for the harm. The concept
of harm to the group, even for an action against an individual, was commonplace.
The means of settling the matter between the offending parties,
also defined according to complex norms involving ideas about who was
responsible – 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
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The Law of Native Americans, to 1815 41
German law that exacted material goods for wrongs. To modern eyes, the
distinction between tort law and criminal law seems blurred by the Iroquois,
and it is easy to assume that they had no distinction between a crime
against the state, as it were, and a personal injury. In fact that was not
the case. The payments that could be demanded depended very much on
whether the transgression was against an individual or the tribe as a community.
The homicide of a sachem brought warfare and sanctions against
the people from whom the killer came, whether a clan within the same
tribe or another nation. If another nation was involved, captives taken from
the wrongdoer’s people were either tortured and killed or adopted into the
avenging tribe. This practice, known as the mourning war, became more
prevalent as time went on, compensating the tribe that had been victimized
not only for murder but also for losses from disease, warfare, or hardship
once the Europeans settled in North America.
Other wrongs, such as the killing of a person by accident or negligence,
or a theft of a valuable item, were punished by demanding payment of some
kind in relation to the level of harm done. Furs and other goods such as
wampumbelts from the coast compensated victims. Usually a council set the
payment, and if there was any dispute between the parties as to the justice
of the demanded amount, it would become the subject of negotiation.
Yet, the Iroquois legal system was not wergeld in any strict sense. That was
merely the closest European analogy the Jesuits could think of. Priests and
travelers described a system of rules that carried specific penalties for specific
wrongs. Elaborate rules governed behavior, but the principle that dictated
most judgments was reciprocity. Justice was usually satisfied by putting the
world back in balance. Yet, the Iroquois went further than many eastern
woodland tribes in their scale of punishments. They included torture as a
legitimate punishment, something most Algonquian tribes did not.
Jean de Br´ebeuf’s 1636 Relation gives us perhaps the fullest account of
the government of the Hurons. Br´ebeuf was familiar with the laws of many
civilizations, including the Chinese and Japanese, with whom the Jesuits
had missions, and so he had a basis for comparison outside European law.
He thought the Huron primitive, but not without civilization. The system
he described eschewed private vengeance but punished wrongdoers.
Vengeance, he remarked, was the “blackest” crime, even worse than murder.
The rule of law could never be thwarted without incurring terrible
punishments. Br´ebeuf commented that the Indians of his time were not
as strict against murderers as in former times, suggesting that the death
penalty was once exacted on murderers. The relative of a murdered person
brought the prosecution to the village of the alleged killer. The family was
paid in gifts, sixty to be precise. Each series of presents had meaning and
was apparently stipulated by law. The ritual was designed to restore peace
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42 Katherine A. Hermes
to the country, an exchange that required the “guilty” party to give back, in
a sense, what was taken from the group that lost a member, thereby eliminating
the need to exact vengeance. If Br´ebeuf was correct, what modern
lawyers would now call the penalty or sentencing phase of a trial was more
important than the proof of a person’s guilt or innocence. In earlier, harsher
times, the murderer was forced to stand beneath the body of the slain person,
where he had to endure the experience of having the corpse release its fluids
onto him and into his food. This practice seems to have faded by 1636.
Even as late as the nineteenth century, the prohibition against vengeance
still functioned, particularly if the murderer was within the kin group of
the victim.
In their encounters with the Indians, the Jesuits did not perceive that
the ritualized system of restitution in lieu of vengeance corresponded with
any pressing need to curb deviant behavior; they actually found very little
crime among the Indians, as Europeans defined it. The principle was an
overarching one, applying not only to transgressions within the Huron
tribe but also to their relations with other tribes. The Huron had rules for
intertribal relations that covered such matters as trade routes. Their rules
also extended to intertribal transgressions. If one tribe or a person under
the tribe’s jurisdiction committed a wrong against a person in another
tribe and would not make restitution, this constituted grounds for war.
During war, according to Br´ebeuf, both torture and ritual cannibalism were
permissible.5
The power to restore balance in a complex society riven at times by
transgressions against individuals or groups is but one of the powers we may
recognize as inherent in the right to govern. In all societies with any kind of
ruling power, there is a way in which that power asserts its right to govern.
The claim may be the right to exercise authority over territory, persons, or
certain subject matters, but having jurisdiction, whether formally used as a
concept or not, means the right to impose rule over some place, some one, or
something, and occasionally all of these. Although jurisdiction and tribute
were not the same phenomenon, one finds hierarchical power expressed in
native North America through the system of tribute.
Tribute was a form of payment by one tribe or clan to a higher political
authority. It was a way of recognizing superior authority, whether that was
an authority won by conquest or as a means of mutual diplomacy. The
tribute system predated contact, but Native Americans adapted it to meet
the changing post-contact world. In pre-contact native societies the system
of tribute affected many people, from the highly organized and militarily
powerful system established by the Aztec Empire to the smaller systems
5 Br´ebeuf, Jesuit Relations, 10: 210–261.
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The Law of Native Americans, to 1815 43
of control among tribal nations elsewhere. When the Pequot controlled
the wampum trade, the small tribes along the Connecticut River paid
them tribute. After the ruinous war of 1637, the Pequot paid tribute to
the Mohegan sachem, Uncas, or to the Connecticut colonial government,
depending on who offered protection. Tribute might be paid in gold and
precious metal in the southwest or, depending on where one lived, in maize,
wampum, or skins.
The system of tribute and jurisdiction could go hand in hand; that is,
a person who exacted tribute might at times claim jurisdiction over that
people, but at other times not. Just as often, nations exacting tribute left
governance and jurisdiction to the local chief or leader. At the time of contact
in North America, the primary eastern groups that would encounter
the European colonists, such as the Powhatan Confederacy of Tsenacommacah
(now Virginia), were organized as tribute systems. The Powhatans,
under their paramount chief by the same name, controlled Algonquian-,
Siouan-, and Iroquoian-speaking peoples in the Chesapeake region as far
as the Appalachians. In the Powhatan system tribute and jurisdiction were
intertwined but not inseparable. For example, Powhatan claimed to the
English that he did not have the authority to punish wrongdoers from his
tributaries. If the English had problems with members of a confederate
tribe, they had to take it up with the tribe’s werowance, or chief.
Just as Native American personal jurisdiction mystified Europeans, territorial
jurisdiction appeared to colonists as nonexistent outside of confederacies.
Historians frequently blame this problem on the different understandings
held by Indians and Europeans regarding possession of the land.
We must also distinguish between Indians’ views of jurisdiction and their
view of property. Territorial boundaries were well known among the tribes,
nations, and confederacies and sometimes were contested. There was no
unfettered movement between lands, and chiefs had some sense of control
over territory. If a problem occurred within their territory, chiefs were
more likely to hand over the transgressors to their own tribal leaders. Yet,
there was no property ownership, as Europeans understood it, among most
Native American peoples of North America. Typically, before colonization
and in the period immediately following it, most Indians followed a law
of usufruct that enabled them to use land for various purposes, such as
farming, hunting, and maintaining a dwelling.
Alden Vaughan, sometimes viewed as an apologist for the Puritans in
their interactions with Native Americans, argues that Algonquians resented
colonial rules and colonial courts from the beginning, but he identifies this
claim with the Indians’ resentment of land acquisitions. It is necessary
to differentiate between the early willingness of Algonquians to try to
reach understandings with the colonists on matters of law and their later
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44 Katherine A. Hermes
realization of the damage done by the colonists’ insatiable hunger for land.
The majority of Algonquians who faced the colonists’ Christianizing efforts
from 1650 to 1750 adopted the same line of resistance: they preferred to
live as their fathers and grandfathers had lived. Land was at the heart of
this conflict, not law. The Algonquian tribes before 1675 had shown a
willingness to compromise on legal procedures to facilitate good relations
with the colonists, and their willingness had been reciprocated by various
colonial governments. As Yasuhide Kawashima has shown, King Philip’s
War in 1675, in part the violent reaction to a legal decision in a murder
trial that resulted in the hanging deaths of three Wampanoags for the
death of a Christianized Indian, marked the end of attempts at mutual
accommodation. The war was a turning point in legal relations, as in all
other interactions in southeastern New England.
II. RECIPROCITY AND TRADE AS LEGAL MEDIATORS
IN THE COLONIAL WORLD
When the Pilgrims landed at Plymouth Rock in the winter of 1620, they
were greeted by an English-speaking Native American whose name they
rendered as “Samoset.” He in turn brought them another Indian whose
command of English was even better. Tisquantum, otherwise known as
Squanto, had been to England, taken there by men who had been fishing
and trading in the Northern Atlantic regions of North America long before
there was any colony at Plymouth. Tisquantum introduced the Pilgrims to
the powerfulWampanoag sachem, Massasoit, who shortly thereafter signed
a treaty with them. Thus began the legal history of native and English
contact, the interplay of jurisdiction and jurispractice on both sides, and
the resultant creation of a new and fragile legal space – 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
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The Law of Native Americans, to 1815 45
best be illustrated with an analysis of jurisdiction in New England. Of
the three types of jurisdiction recognized by English law – 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.
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46 Katherine A. Hermes
The year 1675 is a well-recognized watershed in relations between
Indians and Europeans because it marks the start of King Philip’s War,
a conflict between the tribes of southern New England and the English that
spread as far as the borders of New France. It is no coincidence that it was a
legal spark that ignited the war, one that included issues of trial methods,
punishment, and jurisdiction. The war shattered the relative stability of the
negotiated legal sphere. After 1675, Algonquian jurisdictional autonomy
as it had developed over the decades ended abruptly. Algonquians were
reduced to exercising jurisdiction over themselves at English sufferance, on
reservation lands set aside for them.
This seventeenth-century jurisdictional picture is complicated by the
conversion of Indians to Christianity and the creation of segregated “praying
towns” in New England. Both the French and the English established
separate towns for Indians who converted to Christianity, suggesting that
Indians and Europeans each had reasons for preferring segregation between
traditionalists and converts. Yet, New England convert towns took on a
character quite distinct from those of the French, and there has been debate
about whether English “praying towns,” as they were known, were actually
the first reservations. Praying Indians of New England developed hybrid
laws and governmental structures that reflected colonial values, but in distinctly
Algonquian ways. They held their own courts, which in the seventeenth
century were presided over most frequently by Indian magistrates.
Men such as Waban at Natick, Massachusetts, sat as magistrates in judgment
of their fellow Christian Indians. The praying Indians voted for their
selectmen, usually by holding up their hands, at town meetings. Fraudulent
elections of selectmen sometimes occurred when white settlers hoodwinked
Indian inhabitants by using paper ballots, but the paternalism of the colonial
governments and the overseers often resulted in the overturning of such
results. Natick Indians learned to keep written records in a transliterated
version of their language. Eventually, after King Philip’sWar instilled fear
of all Indians into the colonists, colonial authorities began to replace Indian
magistrates with colonial overseers.
Throughout the eighteenth century the personal jurisdiction that had
been crucial to Algonquians before King Philip’sWar eroded even further.
Deeply in debt to colonists, the praying Indians petitioned colonial governments
to give them “the rights of Englishmen,” which amounted to the
right to sell off common lands to pay what they owed. In this respect, the
praying Indians ended up in much the same position as their non-Christian
brethren. Although colonial governments’ general desire was to protect
the Indian inhabitants of the praying towns, the substance of that protection
was frequently questionable in its benefits, for the governments also
responded to pressure from their own constituents. Native peoples were
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The Law of Native Americans, to 1815 47
caught in an unhappy middle, heavily indebted to European neighbors and
in some cases signing away land to avoid going to jail for debt after being
sued in colonial courts. This cession of territory sealed their jurisdictional
fate in the minds of the colonial government, which equated territory with
governing power.
The mediated jurisdictional space of early colonial New England, built
on shared principles of reciprocity and justice, had been destroyed by war.
Its history nevertheless offers a slightly different picture than that which
emerges from the Chesapeake area, where trade networks rather than principles
of fairness were the legal mediators. In that space, acts of war had a
different role.
In general, the Chesapeake colonies rarely brought Indians to court except
to have their ages confirmed as servants or slaves or to punish those already
in bondage for running away. Few instances of violent crime were treated as
individual crimes. What might have been called murder in New England
was usually an act of war or petit treason in the Chesapeake. Thus, the
jurispractice of Indians eroded much more quickly in the Chesapeake, where
it was given much less chance of creating a hybrid colonial legal space. After
the early wars of 1622–5 and 1644, Indians either lived on the periphery of
Chesapeake society, and outside of its court system, or in bondage within it.
Yet, Native Americans fared better than the other subjected culture in the
Chesapeake, the Africans. The tripartite racial community of the Chesapeake
created a hierarchy of races in which Indians occupied a precarious middle
station.
Although the courts in the Chesapeake tended to treat unfree Indians
much as they would unfree Africans, free Indians received better treatment
by the courts than free Africans. All of the major remaining tribes in
Virginia, for example, were able to assert successful claims for reservation
lands during the seventeenth and eighteenth centuries. Indians also went
to the county courts for redress when colonists assaulted them or stole from
them. Indians could prevail in these cases, and frequently reparations were
ordered paid to Indian victims. Nonetheless, there were clearly differences
in the treatment of white men and Indians in the courts. When, for example,
an Indian from a Virginia Indian town was killed by a group of servants
belonging to an Englishman, the master of the servants was ordered to
pay money to the Indian town, and the servants had their time on indentures
extended. The payment of money was not necessarily an insult to the
Indians, who traditionally had compensated victims of homicide in just
such a way, but the colonists did not view it as following any principle of
reciprocity. It was merely a way to keep peace.
Trade networks rather than the courts were the usual venues of settling
disputes between the majority of Indians and settlers in the Chesapeake.
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48 Katherine A. Hermes
Indians in Virginia tended to live in Indian towns within the colony, which
were not like the praying towns of New England but more like reservations
with semi-autonomous government. Others lived on the frontier itself in
their own societal configurations. With each succeeding generation, they
moved further westward. Dispute resolution was usually part of a treatymaking
process if it was peaceful or a battle if it was not.
Even when traders tried to take Indians to court for such matters as
bad debts, the Virginia legislature stepped in to forbid it. Traders were
expected to treat the Indians well, but it was the economy itself that colonial
governments in the Chesapeake expected would regulate human behavior
and establish new customs. Bacon’s Rebellion in 1676 was fought in part
over the privileges given to Indian fur traders by the Virginia ruling class, at
least as Nathaniel Bacon and his followers saw it. The Governor of Virginia
had alliances with Indians that were crucial to the colony, and Indians
accepted these trade relations as establishing quasi-legal norms of behavior.
Settlers in the Chesapeake did not want Indians in their midst. Those
Indians who did live among them were usually servants or slaves, and there
was a steady amalgamation of Indian and African peoples. Nevertheless
the slave narratives of the Works Progress Administration suggest there
were still “full-blooded” Indians in the Chesapeake during the nineteenth
century, and many of the former slaves claimed a full Indian ancestry. Indians
who were not amalgamated into the general population of servants or placed
on reservations became in effect enemy combatants, people to be dealt with
by the military rather than by the courts when trading went awry.
Trading relationships in the north were also fraught with tension, but
provided, as Richard White has called it, a “middle ground,” where natives
and colonists could meet without hostility. A nascent fur trade arose in the
seventeenth century and burgeoned in the eighteenth and early nineteenth
centuries. Trade along the Great Lakes region forced movement among
the Indians, introducing economic competition into the native communal
norm. The trading areas were largely free of formal legal institutions, and
Native Americans could insist, in the early period, on using native practices
to negotiate the terms of exchange. As trading became a larger industry,
however, both the British and the French Crowns attempted to regulate its
conditions.
The introduction of liquor often affected the contracts made between
native fur traders and colonial or crown purchasers of furs. Alcohol complicated
the resolution of differences, usually by making it impossible to
wait for a legal decision and settling matters by violence. Indian traders
often did not understand the English and French law of contract and debt
obligations. When courts did decide cases that involved payments or debts
owed, they often resorted to the concept of quantum meruit, an obligation
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The Law of Native Americans, to 1815 49
based on “reasonableness and justice,” rather than on the consent of the parties.
This should have worked in favor of the Indians to some extent, but by
the time the fur trade had been established in the mid-eighteenth century,
the once common idea that Indian alcohol abuse was the fault of Europeans
had faded, and Indians were held to individual accountability.With alcohol
often the cause of misunderstandings if not outright deliberate deception on
the part of colonial traders, Indians lost their cases because courts assumed
they were “reasonable” when they made their trades or ought to have been.
The lack of legal protection in areas of trade, whether because disputes were
settled on the ground, as it were, or because Indians lost when in court,
turned the middle ground into a dangerous place. It created a situation that
perpetuated Indian indebtedness, forcing them to continue to hunt further
away from home and to leave their families for extended periods. It also
forced the sale of Indian lands to repay debts incurred while trapping.
Whether New England courts or Chesapeake commercial relationships
were the venue for early colonial dispute resolution, by the eighteenth
century Indian resort or subjection to the power of Anglo-European courts
was the common denominator throughout the colonies, as it would be later
in the United States. The dominance of the Anglo-European legal system
did not, however, completely obliterate Indian jurispractice.
III. ANGLO-EUROPEAN LAW ABOUT NATIVE AMERICANS
AFTER CONTACT, 1730–1815
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.
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50 Katherine A. Hermes
More frequently, Indians found themselves being used by colonial law.
The rise of a distant royal voice of authority among the colonists, along with
increasing royal pronouncements about treatment of the Indians and the
presumption by royal agents that Indians were either wards or quasi-subjects
in need of protection, took from the Indians much of the autonomy they
had managed to preserve. The European wars of the eighteenth century that
were fought on North American terrain led to a new era of Anglo-Native
American conflict in which territorial jurisdiction and national sovereignty
were the dominant themes.
British Imperial Law and Native Americans
Michael Leroy Oberg has argued persuasively that two principles governed
the British interaction with Native Americans in the seventeenth century:
dominion and civility. These dual principles extended well into the eighteenth
century when the Indians were British allies. As long as the British
could dominate, they expected to maintain civil relationships with the
tribes. Domination and civility required face-to-face relationships and even
friendships of a sort between the individual parties representing each side.
The British agent or superintendent became the counterpart to the chief.
Although Native Americans had frequently insisted on the presence of
councils at meetings, or the use of female interpreters, these practices faded
as men sent by Britain to regulate Indian affairs insisted on dealing with one
chief. An artificial system of designating one male chief became cemented
in eighteenth-century diplomacy.
Colonial governors appointed by the crown often had a very different
perspective on the legal rights of Native Americans than colonists and their
elected officials. Governor Berkeley of Virginia tried to secure a Crown-
Indian relationship that left Indians dependent on England but not on
the colonists per se. He co-opted Indian assistance by treaties that, for
example, made them accomplices in hunting down non-friendly Indians
who murdered colonists. Likewise, the Indians favored Governor Andros,
who ruled over New York and later the short-lived Dominion of New
England (1686–9) and who alienated the colonists of New England by his
attempts to challenge land titles obtained from Indians. His protection of
their rights even against those of his countrymen was worth the price of
submission and loyalty for many Indian nations.
In the eighteenth century, the charters and governments of many colonies
were remade to a more uniform standard. Their legal systems were altered to
be more consistent procedurally with one another, and the Crown appointed
royal governors for all but the proprietary colonies, Pennsylvania and
Maryland. The royal governors tended to take an imperial rather than local
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The Law of Native Americans, to 1815 51
view of Indian relations, one that increasingly diverged from the desires of
the colonists. In war after war begun in Europe but played out on American
soil, European monarchies and their Indian allies fought for control of
North America. By the time of the French and Indian War (1754–63), 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
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52 Katherine A. Hermes
able to maintain by force of arms. The English government, on the other
hand, asserted ultimate sovereignty over Native American lands by virtue
of the ancient charters that former kings of England had granted to those
undertaking to plant colonies in the New World. Though speculative in
origin and based on ignorance of the geography of the New World and of
the power of the Native American nations in the interior, the charters were
brought forth in legal argume,nts whenever their full realization seemed
possible. Law in the form of treaties began to replace negotiated jurispractice
with colonial governments at the cost, in some cases, of individualized
justice.
In their dealings with the Native American nations, the English authorities
used the treaty form of negotiation, in which solemn covenants were
entered into as between equals. The Iroquois analogized English forms
to their own “Covenant Chain,” the name given by them to an intricate
network of parties who treated with one another. The idea of the chain
harkened back to the pre-contact history of the Iroquois in which their
own confederacy, the Haudenosaunee, became a chain. They linked arms
with their treaty partners to signify the human chain they were creating by
their entry into treaties. In 1763 the Indian nations of the southeast signed
the Treaty of Augusta with Great Britain, giving the Crown, and not the
colonists, control over Indian relations. Indian territory was then carefully
plotted out. Native peoples adjusted their jurispractice to incorporate a
concept of territorial jurisdiction that never sat easily among their other
legal principles.
During the period from 1763 to 1775, a series of boundaries between
the colonists and the Native Americans of the interior were created from
Lake Ontario to Florida, confirming in the minds of Native Americans (and
many colonists) the belief that the Native American country was closed to
speculation and settlement by the increasingly aggressive colonists. Except
for South Carolina, where there were few violent land disputes after 1763
until the RevolutionaryWar, colonists continued to usurp the powers of the
crown extra-legally by buying Indian lands and entering into unenforceable
treaties. Until the dawn of the American Revolution, colonists had to
find ways of negotiating with Indians without contravening English law’s
assertion of royal sovereignty and exclusive right to treat with Indians as
foreign nations.
Lord Dunmore’sWar of 1774 began to erode the arrangements by which
the seaboard colonies and the Native American nations of the interior were to
be divided. Dunmore, the royal governor of Virginia, wanted to acquire Fort
Pitt, abandoned by the French but not the Indians during the French and
Indian War, in support of Virginia’s charter claims. Dunmore’s move into
the trans-Allegheny areas of western Pennsylvania (Virginia’s charter claims
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The Law of Native Americans, to 1815 53
were to the west and northwest) led to war with the Delaware and Shawnee.
The war initiated a response from the Iroquois to the north, who stood in the
relation of elder brothers to the Shawnee and Delaware. Perhaps the most
prominent guarantor of the relationship was William Johnson. A patriarchal
figure with a Mohawk second family who inspired trust with the Iroquois
Confederacy, Johnson was a man who mediated the interests of King,
colonies, and Indians. As an agent for the King, Johnson often acted outside
his legal authority to ensure Indian rights. As Superintendent of Native
American Affairs, Johnson worked diligently to keep the Iroquois out of war.
He pointed out that the Six Nations that comprised the Iroquois Confederacy
had renewed and confirmed the Covenant Chain that existed between
them at the Treaty of Fort Stanwix, entered into on October 26, 1768.
The Iroquois demanded to know why Anglo-Europeans were not honoring
the former treaties and boundary lines and were moving beyond the
mountains into the Ohio River valley. In 1774, while arguing in council
to prevent Iroquois participation in Dunmore’s War, William Johnson
died. His successor met with the Iroquois representatives in a series of
conferences culminating in a great meeting at Onondaga. The Iroquois
ultimately endorsed the pledge to remain at peace with the English and
persuaded the Shawnee to settle their differences with theVirginians. Joseph
Brant, a Mohawk graduate of Eleazar Wheelock’s Native American School
at Lebanon, Connecticut (later Dartmouth in Hanover, New Hampshire),
was particularly influential in these conferences. What had once been a unitary
system of law that incorporated diplomacy with other jurispractices
was replaced by a dual legal system of local justice and international diplomatic
relations. This dual legal system in turn divided native leaders and
created new legal roles in tribal communities.
To keep colonists and Indians apart, the British government continued
to enforce the Proclamation of 1763. The Quebec Act, which replaced and
changed the Proclamation, precluded colonial expansion into the lands that
colonies claimed by their charters. It extended the province of Quebec as
far south as the Ohio River and placed management in the hands of a royal
governor with a standing army under his command to support him. As
Francis Jennings has pointed out, the significance of the Quebec Act was
that it halted the rampant land speculation of the seaboard colonists. It
placed issues of sovereignty and control of the areas of likely expansion in
the hands of Parliament rather than of colonial legislatures. It acknowledged
that Indian nations and tribes would remain on the lands that were either
traditionally theirs or, in the case of tribes already pushed westward, that
were now through custom or treaty established as theirs.
British restrictions on colonial freedom of action in this as in other fields
helped convince the colonists that violent reaction might be the preferable
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54 Katherine A. Hermes
alternative. Revolutionary action soon arrived on the horizon. During the
period in which colonists began to form structures of governance, the British
imperial model for treating with the Indians was followed in form, though
not in substance. In July 1775, the Continental Congress proposed a plan
similar to the superintendencies created by the Crown for managing Native
American affairs except that it created three rather than two geographical
departments, with Commissioners appointed for each. At this point the
role of the Commissioners was to urge neutrality on Indian nations, but
they were largely unsuccessful.
During the ensuing Revolutionary War, most Native Americans chose
to side with the British. The involvement of many Indian tribes in the war
on the side of the British had legal repercussions after the war. The fact that
four of the six nations of the Iroquois Confederacy had fought on behalf of
the Crown and two had fought with the rebelling colonists, along with the
continued division among the Six Nations, enabled the United States to
argue in 1783 at the war’s end that no Iroquois Confederation continued to
exist, thus calling into question any sovereignty the Confederacy’s members
claimed for their union.
In addition to the upheaval the American Revolution caused at the level
of diplomatic and military relations, it also disrupted other institutions,
particularly in the South. Enslaved people who claimed Indian ancestry,
particularly on the maternal side, sued for freedom in Southern courts or
ran away, expecting that their Indian descent would serve as a protection
from reenslavement. In Robin v. Hardaway, a Virginia case in 1772, the
plaintiffs argued that Indians brought into Virginia after 1705 could not
be enslaved; any descendants must therefore be set free. In the post-war
period, especially in eastern Virginia, slaves who could demonstrate Indian
ancestry frequently won their freedom in court. This trend continued into
the early republic. Although the legal status of Indian nations reached a
nadir in terms of hardship, individual Indians were again finding it possible
to enter local Anglo-American courts to claim justice.
U.S. Federal Law and Native Americans
The failure of the British negotiators to include provisions protecting
Britain’s Indian allies in the Preliminary Articles of Peace of 1783 astounded
Indians and Europeans alike. No Indian tribes were present at the signing
of the treaty, despite their participation in the war. England could have
inserted a clause to protect the Indian allies’ rights to land tenure. The
Spanish representative at the Paris negotiations, the Conde de Aranda,
asserted that the territory west of the Appalachians to the Mississippi,
which England handed over to the Americans without pause, belonged to
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The Law of Native Americans, to 1815 55
free and independent nations of Indians to which Europeans had no right.
But the American negotiators rejected this claim on behalf of the Native
Americans and asserted the rightful authority of the colonies to govern the
lands west to the Mississippi.
In their negotiations with the Native Americans back in North America,
the former colonists tried to persuade the Indians that by siding with the
British in the Revolutionary War their tribes had lost all rights. The new
federal government asserted that the Native Americans were a conquered
people. The governor of New York was advised not to enter into any treaty
with the Iroquois Confederacy as an equal party, because its former independence
and even the Six Nations as separate sovereigns had ceased to
exist.
The relations between the Five Civilized Tribes and the various European
powers had been perhaps the best on the North American continent.
By the mid-eighteenth century, the southeastern tribes lived in ways that
were recognizably “civilized” to most Europeans. The American Revolution,
however, abruptly ended all prior friendships, particularly when the
United States came into sole possession of the southeast and the former
colonists began to colonize the southern Indian nations. Beginning in 1785
with the Treaty of Hopewell between the Commissioners Plenipotentiary
of the United States of America and the Head-Men andWarriors of all the
Cherokees, the United States started to establish quasi-jurisdiction over
the Five Civilized Tribes. A second treaty in 1786 was the first attempt
by the United States to establish hegemony over the Choctaw. It required
the return of escaped slaves, the extradition of any Choctaw who had been
convicted of crimes by the United States, and the return of any property
that had been captured during the Revolutionary War. Until 1798, Spain
still claimed sovereignty over the territory occupied by the Choctaw. As
soon as Spain ceded the region, the United States began enforcing the harsh
provisions of the Treaty of Hopewell.
Neither the Iroquois, nor the Indians of the Old Northwest, nor those of
the South meekly accepted colonial claims of sovereignty by right of conquest.
The treaties the Indians were compelled to sign acknowledging this
late version of colonial history were instruments of power that the Indians
could not have anticipated. Such claims of conquest would have sounded
strange a century before to most of the tribal nations that now were signatories
to treaties, because previously they had existed as recognized nations
on a par with the English. The conquered tribes had been those of the
first wave of colonization, the Powhatans and the Pequots. The Iroquois
and the Cherokee did not view their own situations as remotely similar to
those tribal histories. Although the majority of Indian nations responsible
for stemming the tide of colonial expansion had sided with the English in
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56 Katherine A. Hermes
the Revolutionary War, they still possessed land and power only partially
diminished by the war. The British government, shamed by Indian remonstrances,
continued to occupy the forts of the Old Northwest, providing
trade goods to their former allies. Nevertheless, they refused military aid
for a renewed attack against the Americans.
Unsuccessful attempts by the United States to impose its will on the
Native Americans confirmed that the Indians had not been vanquished by
the Americans during the Revolutionary War. In numerous expeditions
undertaken by American generals in the 1790s, Native Americans defeated
U.S. attempts to gain physical control of their lands. In 1794, General
AnthonyWayne finally managed to defeat the northwest Indians at Fallen
Timbers. Yet, the resistance and strength of the natives refuted the notion
that conquest could simply be asserted rather than won. Tribes refused to
yield sovereignty and jurisdiction to the United States.
With the formation of the Constitution and the establishment of a new
government, Secretary of War Henry Knox, Secretary of State Thomas
Jefferson, and President George Washington articulated a formal policy
of honor and good will toward the Native Americans. As expressed in
the Northwest Ordinance, the policy claimed, “The utmost good faith
shall always be observed towards the Indians; their land and property shall
never be taken from them without their consent; and in their property,
rights, and liberty, they shall never be invaded or disturbed, unless in just
and lawful wars authorized by Congress; but laws founded in justice and
humanity shall from time to time be made, for preventing wrongs being
done to them, and for preserving peace and friendship with them.” This
was not the policy, though, that the U.S. government followed. Indeed,
it is fair to say that there were two policies, one stated and one hidden.
Under the Federalists and Jefferson, the Indians were to be semi-segregated
from the English population but assimilated to Anglo-American culture,
an approach evidenced in agriculture, trade, and law. Despite Jefferson’s
repeated desires to have a native American race into which was bred the
best of the English and the Indians, real Indians had to stay away from
white Americans as much as possible. It was thus one of the great ironies
of history that the Cherokee, who accepted this plan more than any other
nation of Indians and who assimilated, farmed with the use of slave labor,
traded, and created laws in the form of a written constitution, became the
first to come under attack and were ultimately removed in the Trail of
Tears.
Writers in the early federal period were still affected by ideas of the
noble savage on the one hand, and the Indian frontier presence on the other.
Travel writers, the past generation of whom had compared Indian government
to monarchies, now saw the Indians possessed of republican forms of
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The Law of Native Americans, to 1815 57
government. Some Indian nations were receptive to republican ideas,
notably the Cherokee. The Iroquois too had long lived under a confederation
that loosely resembled the first U.S. government under the Articles
of Confederation. Many Native Americans had, even before contact with
Europeans, practiced forms of government compatible with a democratic
republic even if not conceived in that way. The idea that the people should
have a voice through learned councilors was typical of many native legal
and political systems. Yet, the United States continued to view the Indians
as anathema to principles of democracy and republican government. They
needed civilizing, according to almost every Anglo-American commentator,
if they were to survive. Those who wished them ill believed they could
not be civilized and therefore would vanish. Others had hope. The Indians
themselves continually expressed confusion that Americans did not understand
that they were sovereign and governed themselves on just principles.
When Thomas Jefferson became president he announced policy objectives
for the Indians that included peace, land cessions, and civilization.
Hidden in the agenda was removal, if it became necessary, and the extermination
of resistant tribes if that proved unavoidable. That Jefferson never
acted on these feared inevitabilities does not mean they had no lasting
effect, for by positing resistance, removal, and annihilation as foregone conclusions,
much as he had the demise of slavery at some time in the future,
he propelled succeeding generations to ponder the message and, in a sense,
rigged the future. Jefferson saw the Indians as savage, even if noble. He
did not acknowledge that they had either legal systems or self-governance
that was rational. Jeffersonian theory essentially misunderstood the nature
of tribal culture and how it could be reformed.
Many Americans thought only in terms of how Indians should be
reformed, without realizing that Native American culture and law was
evolving right alongside them. The good intentions of missionaries to the
Indians and their advocates in Congress were in themselves an assault on
Indian society and sovereignty. The missionaries thought of themselves as
genuine friends of the Indians. Nevertheless, their intent was to destroy
the Indians’ world. Jeffersonian policy was na¨ıve and confused. In wanting
what was best for these noble savages, reformers ultimately desired the
elimination of the tribal order. Like their predecessors, they rarely recognized
native legal or religious institutions. If they did acknowledge Indian
jurispractices, they often tried to suppress them.
The Jeffersonian Indian policy of coexistence and gradualism – 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
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58 Katherine A. Hermes
matter of slavery, Jefferson compartmentalized his philosophical beliefs and
his day-to-day actions. Jefferson wrote of his hopes of bringing civilization
to the Indians and constantly urged tribal leaders to change their lifestyle
in order to require less land for their people. He directed governors of the
Northwest Territory, Michigan Territory, and Indiana Territory to “promote
energetically” the national government’s plan for civilizing Indians
and authorized the assignment of blacksmiths and other artisans to cooperative
Indian tribes to maintain plows and other implements for Indian
apprentices. He encouraged missionaries to take part in the Indian civilization
process. In 1803 he directed the Cherokee agent to erect a schoolhouse
for Gideon Blackburn, a Presbyterian missionary, to enable him to instruct
Cherokee children. The number of tribal schools increased until, in 1824,
twenty-one schools with nearly 1,000 Indian students were functioning.
But the plan did not include, as the Spanish, English, and French had all
acknowledged to some extent at the beginning of colonization, any institutionalized
Indian court of justice.
Jeffersonian Indian policy fitted well with the growing land needs of
Anglo-American pioneers. It accepted the inevitability of their advance
across the frontier, with the national government maintaining firm though
regularly changing boundaries through an orderly, managed progression
of settlements, made possible by periodic land openings. It held that new
settlement zones would be created from new cessions by Native American
proprietors.
Yet, despite Jefferson’s strong commitment to Indian civilization, the
program was never successful because at no time was it ever sufficiently
supported, fiscally or politically, by Congress and officials in the government.
Cynical politicians regarded the nation’s “Indian problem” as solvable
through the steady advance of hardy American pioneers; in due time
extermination rather than assimilation would rid the nation of this vexing
complication to its expansion, growth, and development. Native American
tribal authorities often experienced rifts in their councils, as they tried to
determine their level of cooperation with the civilization program. Men
of European and Indian heritage tended to be more willing to do what
the United States demanded than those with only Indian ancestry. In some
tribal communities there emerged strata of class and race that had not been
present in the past. The effect on law was palpable, as tribes fought over
whether or not to adopt Anglicized legal systems.
The lack of evidence of noticeable progress in Indian civilization during
his tenure as the nation’s chief executive led Jefferson to consider alternatives
for protecting Indian interests and making tribal land available for
settlement by Anglo-American pioneers. Jefferson preferred that the eastern
Indians remain on their progressively diminished tribal territories and
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The Law of Native Americans, to 1815 59
support themselves by agriculture. After the United States acquired the
Louisiana territory, he considered relocating certain eastern Indians there.
In each Indian nation Jefferson found that there were factions who seemingly
could not cope with the relentless advance of the settler tide across
established boundaries onto tribal territories that the national government
had pledged to protect from trespass. Jefferson urged tribes to consider
exchanging eastern lands for wilderness tracts. Thus for eastern Indians
removal appeared to be an alternative to life on a compressed tribal estate
attempting to coexist with Anglo-American neighbors.
Portions of Jefferson’s Indian policy persisted after he left the presidency.
The policy of his immediate successors – 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
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60 Katherine A. Hermes
until the federal government claimed the right to oversee it in 1787. Federal
power was weak, though, and for the most part states did as they pleased.
Reservation Indians, more than others, were placed in a legal limbo, where
they could never be sure of the extent of the power they were allowed
to exercise. Many continued to act as they had before the federal government
claimed any power over them. The Pamunkeys of Virginia, for example,
continued to pay tribute to the governor of the state as their sovereign
conqueror in compliance with a seventeenth-century treaty. In fact, the continuance
of the use of the treaty as the instrument to negotiate legal norms
remained a contentious issue throughout the nineteenth century, even after
the questions of federal legal primacy and tribal sovereign status within the
American polity had been settled by Chief Justice Marshall in Worcester v.
Georgia (1832). Whether on reservations or off them, tribal nations faced
multiple layers of legal norms, but without the choice of forum that had
characterized the colonial period.
CONCLUSION
In thinking about law and Native Americans in the pre- and post-contact
periods in North America, the term “jurispractice” captures most precisely
the reality of that world. Though they did not lack principles, the legal and
moral ideas that informed the people of North America, Indian and colonist
alike, by necessity manifested a higher degree of expediency than principle.
The balance was simply tipped toward the perception of reality from each
group’s standpoint. Law, the rules that govern society’s conduct, presumed
by societies to be immutable at least until an authoritative change occurs, is
embedded in the fabric of the societies it governs. It is distinguished from
custom by its articulated permanence.
In the current anthropological literature and historiography, where law
is just one of many elements subsumed under the rubric of culture – 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
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The Law of Native Americans, to 1815 61
understanding of pre-literate legal culture is essentially the attempt to
understand its jurispractice, its recognizable expression of legal ideas
through the ways in which they are practiced by a society. Jurispractice
is, indeed, all we can know about the law of the Native Americans who
lived in the pre-contact and contact periods. We can infer from that practice
that they may have had a philosophy of law as well as a body of laws,
but we will never possess it in the way we can possess a copy of jurisprudential
treatises by Samuel Pufendorf or even the ever-practical Blackstone’s
Commentaries.
Understanding the evolution of jurispractice after contact requires recognition
of multiple realities as well as legalities. Initial colonial impressions
of Native jurispractice reflected colonizers’ own expectations, models, and
familiarity with law, derived from the particular European societies and
legal systems with which the colonial observers were conversant. As Indians
began to exercise and communicate their own expectations within colonial
legal realms, the picture of their jurispractice reflected in treaties, court
records, and other documents generated in those realms became more precise,
more particular, and more problematic. Heterogeneous tribes, both
those that were indigenous and those that were formed by post-contact
ethnogenesis, with their concomitant multiplicities of jurispractice, operated
in separate but overlapping spheres of power with several layers of
European and colonial law and government.
During this period the operative premises were a mutual belief in equal
application of justice to Indian and non-Indian alike, negotiation of the
terms of engagement in the shared legal space, and autonomy of jurispractice
in separate spheres of sovereignty. Indians and Europeans operated
under different beliefs as to the limits placed on Indian legal autonomy by
Anglo-European law and, most essentially, as to what constituted “justice.”
Despite the tensions arising from differing beliefs and differing approaches
of jurispractice, such as mediation and adversarial contest, both Indians and
colonists managed for a time to operate successfully in an arena of shifting
legalities.
This change in jurispractice reflecting a period of shared power and interaction
in a negotiated legal space broke down under the pressures of change
on both sides. Increased hostility on the part of both Indians and colonists
made cooperation less tenable and less desirable. The increased formality of
English legal systems operating in the colonial period made it more difficult
to maintain equitable cross-cultural arrangements. Increased assimilation
on the part of individual Indians put more and more natives beyond the pale
of shared legal power and within the pale of colonial court systems, without
the protections, demands, and special processes previously negotiated. The
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62 Katherine A. Hermes
increasing unpredictability of processes and protocols negotiated by colonial
governments at all levels made it very difficult for Indians to operate
within separate yet overlapping spheres of jurispractice. Two sets of rules
may be viable; multiple sets that may or may not apply lead to chaos.
The breakdown of the fragile balance of power between sovereign legal
actors was long completed by the time of the American Revolution, which
marked a significant change in the position of Indian tribes within the
larger legal system of a new federal republic. The new federal government
initially asserted that Native Americans were conquered peoples without
any sovereignty. In 1787 this gave way to a stated policy that seemed to
recognize tribal autonomy. Such stated deference to the “rights” of Native
Americans was belied by subsequent actions on the part of both federal
and state governments. Although tribes still operated on the premise that
their law was in their control, during the Early Republic federal and state
officials acted as if native control of their law was defeasible.
From contact through the Early Republic, significant changes occurred
in Native American jurispractice in response to the pressures of European-
American legalities. In looking at the rise and fall of a negotiated realm of
Anglo-Native jurispractice in North America the challenge before scholars
at present is to explore the ways in which sustained interaction with native
jurispractice affected the jurispractice and structures of governance in the
emerging polity that would come to be called the United States of America.
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3
english settlement and local governance
mary sarah bilder
In late 1584, as Sir Walter Raleigh began to organize an effort to send
settlers to Roanoke Island, an anonymous author asked, “What manner of
geouernement is to be vsed and what offics to geouerne?”1 The mysterious
end to the Roanoke settlement offers no answer. Yet, as the vast record of
charters, letters patent, and correspondence about governance testifies, the
manner of government preoccupied settlers, investors, and Crown officials.
The question of governance also intrigued past generations of historians.
Simply put, when English settlement began in the 1570s, not one of the
institutions that symbolized American representative government was in
existence; by the 1720s, colonial American institutional development was
largely complete.
For the casual reader, institutional histories of early America often revel
in overly obscure details of colonial and English political organization. The
current tendency to reject the entire venture, however, goes too far the other
way. As we shall see, institutional history is important for two reasons. First,
it helps us understand the development of authority – 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
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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,
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English Settlement and Local Governance 65
for the first century and a half, English governance in America was imperium
in imperio.
Two final preliminaries. First, I focus here on the mainland settlements
that eventually become the United States. Additional coverage of Canadian
and Caribbean English settlements – 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
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66 Mary Sarah Bilder
possess” lands as “vassals and governors lieutenants and deputies.”2 Soon
after, letters patent given to Bristol merchants in 1501 and 1502 contained
explicit delegations of governance authority, but did not address the specific
structure of government. The patentees received authority to govern
and to establish laws, ordinances, statutes, and proclamations for good and
peaceful government.
Historians tend to use charter as a generic term to refer to the Crown’s
grants for mainland settlements. In fact, most of these documents were letters
patent and referred to themselves as such. Technically and traditionally,
letters patent and charters are somewhat different documents. A charter was
a grant of privileges in perpetuity; it was more formal, with more witnesses,
written in Latin and, until the early sixteenth century, filed in the Charter
Rolls. The first documents of North American settlement that explicitly
referred to themselves as charters came not as we might expect with the
early corporate colonies, but with the first proprietary colonies, followed
by the 1644 Parliamentary charter to Rhode Island. Before 1660, contemporaries
usually talked not of charters but of patents and of their holders
as patentees. Indeed, the etymology of patent as a term referring to land
conferred by letters patent can be traced to this specific North American
context. Only after 1660 did colonists and English officials begin to refer
consistently to foundational documents as charters.
In discussions of the substance of the letters patents and charters, the
temptation has been to identify the charters as proto-democratic constitutions.
Most gave inhabitants the right to the liberties, franchises, immunities,
and privileges of free denizens and natural subjects as if born in
England. Several provided for land to be held relatively free of feudal obligations.
In legal terms, land was to be granted in a technical form: as of
the Manor at East Greenwich in the County of Kent in free and common
socage and not in capite nor in knights service. Free and common socage
meant that the land was to be held in fee simple with limited payments
(for example, one-fifth of the gold or a certain number of beaver skins).
Many proprietary charters, however, did not envision a settlement of freeholding
inhabitants. Although by the early seventeenth century, English
landholders largely held land directly from the Crown, these charters permitted
land to be held with feudal services and rents owed to a lord. Such
grants contradicted the statute Quia Emptores Terrarum (1290), which had
initiated the decline of English feudalism by permitting the sale of land
without penalty, and in fact, these charters explicitly rejected application of
2 All quotations from charters and patents unless otherwise noted are from Francis Newton
Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and other Organic
Laws . . . , (1909; reprint, Buffalo, 1993).
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English Settlement and Local Governance 67
the statute. The proprietary charters thus affected to resurrect feudal landholding
practices. Letters patent and charters were compatible with both
feudal and freeholding practices.
The Corporation Colony
In narratives of English settlement, the corporate form is a crucial component
of the American institutional story. The corporation’s role, however,
was not necessarily that which has been emphasized. Certainly, the corporation
provided a mechanism for delegating governance authority to private
individuals. Ironically, however, the corporation’s failings as a delegated
authority and its reinvention as an independent authority would be its
lasting contributions to American colonial governance.
Discussions of the corporation as a vehicle for settlement often have
implied that the corporation and corporate governance were stable legal
forms. The corporate form, however, was itself developing as settlement
began. Corporations were created by means of letters patent granting the
privilege of incorporation. By the mid-sixteenth century, incorporation signaled
a particular set of privileges: the capacity to sue and be sued, possession
of a seal, perpetual succession, the power to hold lands, and the power to
pass bylaws. The use of this form for overseas trade remained haphazard.
The first joint-stock trading company was the Muscovy Company, created
in 1555, with governors, assistants, and a collective fellowship empowered
to pass statutes, acts, and ordinances. Other joint-stock trading companies
developed slowly in the late sixteenth century: the Merchant Adventurers,
the Eastland (Baltic) Company, the Levant or Turkey Company, and
the East India Company. But it was not until John Wheeler’s account of
the Merchant Adventurers, A Treatise of Commerce (1601), that the structure
of corporate governance began to acquire a stable cultural definition
as a governor, deputy governor, and twenty-four assistants with “politike
gouernement, lawes, and orders.”3
Incorporation did not require this particular form of governance. Boroughs,
for example, were also incorporated entities. As England shifted
from a feudal society to one in which increasingly power came directly
from the Crown, boroughs repeatedly requested new Crown charters. But
the restructuring these bodies politic sought was not uniform. Not until the
1660s did corporate boroughs begin to possess relatively similar municipal
governmental charters. Instead, borough corporations retained their
older municipal offices (such as mayor, high steward, bailiff, and recorder)
and governance practices. After the Corporation Act (1661) restricted
3 John Wheeler, A Treatise of Commerce (London, 1601), 24.
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68 Mary Sarah Bilder
corporate offices to those who were willing to participate in the Anglican
Communion, borough corporations came to symbolize sectarianism
in English governance. In neither respect, then, were seventeenth-century
English models of corporate governance for local government necessarily
“democratic.”
The first attempt to use the legal form of the corporation for purposes
of colonization reveals the delegated authority underlying corporate governance.
In the 1560s, Sir Humphrey Gilbert became interested in English
settlement in Ireland. In 1568–9, 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.
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English Settlement and Local Governance 69
not be repugnant to the laws of England), as well as an explicit or implicit
divergence principle (the laws could diverge for local circumstances). Similar
variations on the “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.
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70 Mary Sarah Bilder
the Virginia Company to reorganize as the Council for New England with
authority transferred to a small group of titled lords.
Even when a settlement survived, governing it through a London-based
corporation proved difficult. The Virginia Company of London encountered
repeated governance problems. The initial letters patent created a
multi-layered delegation of authority: a Crown-appointed London council,
a resident council, and a requirement that the council’s laws be signed by the
Crown. In 1607, 104 men set forth to found Jamestown. In barely enough
time for the news to travel to England and back, never mind any laws
to be approved, disease and starvation reduced the colony by two-thirds.
In 1609, the company reincorporated with a single London council that
held constitutionally limited lawmaking authority and was to delegate this
authority to an appointed governor. Under a strict martial code, the 1611
Lawes Divine, Morall and Martiall, &c., Governors Sir Thomas Gates and
Sir Thomas Dale stabilized the settlement. But their discretionary authority
seemed contrary to the corporate form, so in 1612, new letters patent
returned lawmaking authority to the London corporation’s general court.
Now, the Virginia settlers were left with insufficient discretion. In 1618,
the Company issued a “greate Charter or commission of privileges, orders,
and laws,” delegating its authority to a subsidiary political corporation with
a council and assembly of elected representatives.7 The first assembly met
at Jamestown in July 1619. According to the 1621 ordinance, laws were to
be ratified and confirmed in England and the assembly required “to imitate
and follow the Policy of the Form of Government, Laws, Customs, and
Manner of Trial, and other Administration of Justice, used in the Realm
of England, as near as may be, even as ourselves, by his Majesty’s Letters
Patent, are required.”
This corporation-within-a-corporation was, theoretically, a coherent
model for London-based governance, but the only settlement actually governed
that way was Bermuda. In 1612, a subsidiary venture of the Virginia
Company settled Bermuda and incorporated in 1615 as the London-based
Governor and Company of the Somer Islands (the Bermuda Company). In
1619, Bermuda followed Virginia in encouraging settlement with company
instructions to establish an assembly for local governance with the power to
make laws not “repugnant to the laws of England,” the governor’s instructions,
or any company laws and subject to confirmation by the company.
The assembly convened in 1620, and until 1684 Bermuda was governed as
a corporation-within-a-corporation.
No other London-based corporation governed a settlement successfully.
The Virginia Company’s financial difficulties were a constant liability for
7 Susan Myra Kingsbury, The Records of the Virginia Company of London (Washington, 1906),
3: 158.
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English Settlement and Local Governance 71
the settlement, and in 1624 the Crown repealed its letters patent by writ
of quo warranto, a procedure used to revoke borough corporate charters. Quo
warranto (“by what authority”) accused the corporation of acting outside its
charter. In 1625, the new King, Charles I, proclaimed that the government
of Virginia would “depend upon Our Selfe.”8 The governor became a Crown
appointee bound by Crown instructions. Yet, although the corporation no
longer existed and the assembly’s legal status was in some doubt, corporate
practices continued. In 1629, answers to a set of propositions seemed to
confirm authorization of a “grand assembly to ordain laws.”9 In 1639,
Crown instructions at last specifically acknowledged that the governor and
assembly held lawmaking authority so long as its laws were as near as
may be to the laws of England. Virginia became a royal colony after 1676,
when that designation came to signify a new institutional form that would
become dominant in the English settlements. Before then, Virginia looked
more like a corporate colony in which the Crown had simply substituted
itself for the London corporation.
Virginia was not the only settlement in which the maintenance of corporate
governance practices – 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.
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72 Mary Sarah Bilder
elected by the freemen would take care of the plantation and “Government
of the People there,” with constitutionally limited lawmaking authority.
The location of government worried Massachusetts Bay leaders. From
the outset, the corporate form made the settlement vulnerable to dissenting
shareholders and the Crown. As conditions in England worsened for
Puritans, a minority of shareholders successfully voted to transfer the government
of the settlement to the inhabitants in New England. This transfer
alleviated the need for a corporation-within-a-corporation and placed the
physical distance of the Atlantic between settlement governance and the
Crown. Without such a transfer, a similar settlement in Providence Island
(near Nicaragua) under a similar letters patent failed by 1641.
The sectarian leaders of Massachusetts Bay clung to a belief in corporate
self-governance while treating English laws governing corporations
as avoidable technicalities. Repeatedly, Crown officials and some colonists
challenged the colony’s authority. A year into settlement, Massachusetts
Bay leaders restricted participation in corporate governance by requiring
that freemen be male members of an approved colony church. Between
1635 and 1637, the Crown conducted quo warranto proceedings to revoke
the letters patent; however, the writ was not served. Meanwhile, to bolster
sectarian governance, the government tried and banished recalcitrants:
Roger Williams, Anne Hutchinson, and John Wheelwright. In 1638, the
corporation was told to send the patent to the Crown, but Governor John
Winthrop refused to do so.
Meanwhile, events in England lessened the threat from the Crown, but
raised new challenges. In 1646, Robert Child argued that as all corporations
were subject to the laws of England, English laws now favorable to Presbyterians
should be followed; this argument was unsuccessful. When Puritan
sympathizers took over the English government, the colony’s governance
practices were left alone. In 1648, the colony’s first published law code,
The Book of the General Lawes and Libertyes, proclaimed the general court’s
authority over its inhabitants. By the 1660s, the colony coined money, executed
Quakers, denied appeals to the Crown, required oaths of fidelity, and
ignored English trade laws. Over three decades, the colony’s sectarian corporate
governance practices and lawmaking authority surpassed the legal
limits of the corporate form.
The perception that corporate governance practices created lawmaking
authority – 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
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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.
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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.
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English Settlement and Local Governance 75
neglected. Yet, the proprietary form represented an equally plausible
approach to delegating governance authority. Englishmen interested in the
settlements viewed the invention of the proprietary form as an improvement
over the corporation colony; proprietaries achieved real settlement
success. Nova Scotia (1621), Avalon (1623), Maryland (1632), and Maine
(1639), as well as Carolina (1663), New York and New Jersey (1664), Pennsylvania
(1681), and East Jersey (1682), all followed the proprietary form.
The coexistence of settlements with authority delegated through corporate
governance practices and those with authority delegated to individual
feudal proprietors indicates the absence of preconceived notions about the
appropriate manner of government for colonies.
Although we tend to think of the charter as emblematic of democratic
constitutionalism, the term charter first appeared in the early proprietary
grants. The proprietary form involved governing practices under which an
inheritable proprietorship was given by the Crown to a nobleman, a cohort
of titled lords served as councilors, and a dependent assembly assented to
legislation. The proprietor acquired social status as the highest lord and
the economic privilege of collecting quitrents (in essence, rents or taxes
on land). His political authority was similar to the English palatinates of
Durham and Chester; the social aspiration came from idealized English
manorial society.
The impetus for proprietary charters seems to have arisen both from
frustration with the corporation and the feudalistic aspirations of a few
noblemen. The oft-forgotten Sir Ferdinando Gorges played an important
role. Since 1607, Gorges had been involved in the failed colonial ventures
of the Plymouth Company. In 1620, he abandoned the corporation
approach and had the Company restructured as the “Council . . . for the
planting, ruling, ordering, and governing of New-England” (the Council
for New England). The Council was in form a board of proprietors, made
up of noblemen and gentlemen. It held constitutionally limited lawmaking
authority and granted land to Gorges, Council members, and friends.
Some grants were never used and reverted; others did not prove particularly
successful.
Although the Council’s grants did not prosper, others adopted the idea of
proprietary settlements. In 1621, a Scottish nobleman, SirWilliam Alexander,
obtained a charter from James I and the Scottish Privy Council naming
him hereditary Lieutenant General over Nova Scotia (New Scotland). The
charter, the first so described, gave Alexander extensive powers so long as
the laws were “as consistent as possible” with those of Scotland. Alexander’s
was a feudal vision: he established a Scottish-style feudal order, planned to
raise money by creating hereditary Knights-Baronet, and obtained a coat
of arms. By contemporary standards, Nova Scotia was successful, surviving
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76 Mary Sarah Bilder
until the early 1630s when the settlement was evacuated pursuant to a
French agreement.
The proprietary approach was of interest to men who were rising in
the ranks of the nobility through service to the King. In 1623, James
granted letters patent for the Province of Avalon (Newfoundland) to his
Secretary of State, Sir George Calvert – later to become Lord Baltimore
and a Catholic convert. Calvert had already been involved in the Virginia
Company and the Council of New England. The Avalon patent granted
him the most extensive governance authority residing in any individual in
England other than the Crown by granting him the powers of the Bishop
of Durham. Avalon failed when Calvert found the weather too cold. The
proprietary grant over the Caribbee (Barbados, the Leeward Islands, and
others) obtained by James Hay, recently elevated to Earl of Carlisle, in
the late 1620s was initially more successful, prevailing over the corporate
scheme of Courteen and Associates.
During the 1630s, proprietary grants continued to vest broad government
authority in a proprietor. In 1632, Calvert’s son Cecilius acquired
a Latin “charter” granting Maryland “forever,” responding in part to his
desire to found a settlement for Catholics. The charter established a palatine
province in which the proprietor controlled the courts and possessed lawmaking
authority limited only by the “Advice, Assent, and Approbation”
of the freemen and the familiar repugnancy provision. In 1634, Catholic
and Protestant settlers landing in Maryland laid out manors, parishes, and
hundreds, with quitrents paid to the proprietor. In 1639, Gorges acquired
similar letters patent for the Province of Maine. Gorges’s narrative described
the patent as a “Royal Charter,” implicitly distinguishing the direct Crown
delegation from the Council of New England’s subsidiary “patents.” Gorges
envisioned an idealized England and began to settle Maine with borough
towns and cathedral cities. His death in 1647, however, ended the proprietary.
13
For the first half-century of settlement, the corporation and proprietary
coexisted as different approaches to the problem of delegating governance
and authority. In the 1640s, English political developments led Parliament
to reject the chartered proprietary with its cultural associations of lords,
dependent assemblies, and noble titles. Parliament’s sole new charter was
given to Rhode Island as an incorporated political body. This shift toward
legislative authority and Protestantism left the Maryland proprietary and its
charter vulnerable to charges of religious intolerance. In 1649, the assembly
13 Ferdinando Gorges, “A Brief Narration of the Originall Undertakings of the Advancement
of Plantations . . . ” (posthumously published 1658), in Sir Ferdinando Gorges and
His Province of Maine (Boston, 1890), 2: 65.
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English Settlement and Local Governance 77
and the newly appointed Protestant governor, William Stone, assented to,
and in 1650 the proprietor confirmed, an act permitting a certain degree
of “conscience in matters of Religion.” Despite the act, in 1652, the family
lost control of the proprietary to Parliamentary commissioners.
Parliament had been quick to reject the proprietary form, but the restored
Crown did not perceive it as an affront to Crown authority. Hence the Restoration
revived proprietary grants and returned Maryland to the Calverts.
Nor did the Crown bring an immediate end to corporate self-governance.
Between 1662 and 1664, Charles II incorporated Rhode Island and Connecticut
while also granting proprietary charters for two huge provinces,
Carolina (stretching from Virginia to Florida) and an unnamed territory
(including New York, New Jersey, parts of Maine, Martha’s Vineyard, and
Nantucket). Because Charles would make no additional grants until the
1680s, these 1660s charters left governance by both proprietary and corporation
once again apparently legitimate.
The Restoration grants confirmed the Crown’s willingness to give extensive
governing authority to proprietors. The 1663 Carolina charter was
given to eight lords. The multiplicity of proprietors made nonsensical the
grant of Bishop of Durham powers, but the proprietors were given constitutionally
limited lawmaking power on the assent of the assembly, authority
to grant titles and incorporate boroughs and leet manors, and the ability to
collect feudal quitrents. As in Maryland, the proprietors’ vision included a
degree of religious toleration. In the 1664 letters patent for territory later
known as New York, Charles did not technically name James, Duke of York,
as lord proprietor, but conveyed similar authority: “full and absolute power
and authority” to govern, limited only in that the laws be agreeable and
the Crown have the right to hear appeals. James’s own 1664 grant of New
Jersey to Carolina proprietors John Lord Berkeley and Sir George Carteret,
for the nominal yearly rent of a peppercorn and, if demanded, twenty nobles
(an old coin), reveals the same understanding of the proprietary. The two
men established proprietary governance, planned to collect quitrents, and
extended liberty of conscience to the province (declaring it the one principle
that the assembly could not alter). Proprietary practices involved lawmaking
authority in the proprietor, feudal rent collection, and some degree of
religious tolerance.
Initially, proprietors controlled lawmaking. In New York the “Duke’s
Laws” (1665) were likely prepared by Governor Richard Nicolls and legally
trained Matthias Nicolls. In Carolina, proprietor Anthony Ashley Cooper
and John Locke produced the “Fundamental Constitutions” (1670), outlining
an elaborate feudal society, which legalized slavery and provided
liberty of conscience for believers in the public worship of God. Proprietorial
authority was diminished, however, by the growing cultural assumption
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78 Mary Sarah Bilder
of the legitimacy of assembly authority. In Carolina, the proprietors failed
to persuade the Carolina assembly to assent to the Fundamental Constitutions
and they never became colony law. In New Jersey representatives of
one town rejected the proprietary altogether as “soe obscure to us that at
present we are ignorant what it is” and refused even to pay quitrents.14 The
New Jersey proprietary’s political difficulties only increased in the 1680s
after Berkeley’s share had passed into the hands of a group of Quakers and
Carteret’s share became held by twenty-four new proprietors. In 1683, even
the Duke of York was compelled to permit an assembly with lawmaking
power subject to governor and proprietor concurrence.
This late-seventeenth-century transformation of proprietary governance
is reflected in the final proprietary, the province and seignory of Pennsylvania
given to William Penn by Charles II in a “Royall Charter” in
1681. Like other proprietors, Penn, a Quaker, provided religious toleration
of a sort (here for Quakers and other dissenting Protestants) and
planned to collect quitrents. Penn’s authority as lord proprietor, however,
was bounded by Crown and assembly. Penn’s charter did not include the
broad powers of the Bishop of Durham. Penn, instead, was to send his laws
to the Privy Council for confirmation or disallowance, permit appeals to
the Crown, follow Crown colonial policies, and keep an agent in London
to respond to Crown concerns. Although like earlier proprietors, Penn’s
1682 “Charter of Liberties” and frame of government attempted to have
the governor and council write legislation and the assembly simply accept
or reject it, by 1696 this approach was deemed no longer appropriate
to circumstance. The assembly took over lawmaking authority, proposing
and passing legislation subject to the governor’s veto and the Crown’s
disallowance.
What significance should we accord the proprietary form? From Canada
to the Caribbean, proprietors settled and governed a far larger area than
the corporation colonies. Landholding practices in the middle and southern
colonies long continued to reflect the proprietary’s feudal, manorial vision.
The proprietary’s ability to combine this vision of landholding with some
degree of religious tolerance reminds us that our association of religious
tolerance with democratic government is deeply contingent. Like the corporation,
governance under the proprietary produced a version of imperium
in imperio – but in this case the development of multiple authorities. This
approach, however, failed. Initial proprietor ascendancy was eroded by the
growth in the assembly’s lawmaking authority and the Crown’s desire for
direct governance. Faced with these dual challenges, almost everywhere
14 Middletown paper (1669), quoted in Charles M. Andrews, The Colonial Period of American
History (New Haven, 1937), 3: 147.
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English Settlement and Local Governance 79
the proprietor’s authority collapsed. Two proprietaries, Maryland and Pennsylvania,
survived at least in name because of the intense commitment of
their founding families, but the proprietors per se came to hold little real
authority.
The Royal Colony
By the Revolution, most colonies had become royal colonies held directly
by the Crown. Conventional accounts often imply that the path to royal
dependency was straight and that the Crown pursued a strategic course,
limited only by colonial opposition. The institution of the royal colony,
however, developed over a century in fits and starts. In 1625, the Crown
proclaimed “there may be one uniforme course of Government, in, and
through Our whole Monarchie, That the Government of the Colonie of
Virginia shall immediately depend upon Our Selfe, and not be committed
to any Company or Corporation, to whom it . . . cannot bee fit or safe to
communicate the ordering of State-affaires.”15 But the Crown proved to
be inconsistent in following this policy. Despite sporadic efforts aimed at
Massachusetts Bay, not one other colony was reduced to dependency during
the reign of Charles I. What a uniform course of government and, equally
important, colonial dependence actually looked like remained unclear for a
century.
Policy after the Restoration depended on the Crown’s political advisor
and his vision. Sir Edward Hyde, the Earl of Clarendon and Lord Chancellor,
sought increased colonial control but used existing mechanisms: a
Privy Council committee on the colonies was established in 1660, Virginia
was given a seal proclaiming it the fifth royal dominion in 1663, and
a Crown-appointed governor and council were placed in Jamaica (seized
from Spain in 1655). New charters for Carolina (with Clarendon as a proprietor),
Rhode Island, and Connecticut followed traditional delegations
of authority. Crown commissioners attempted to end Massachusetts Bay’s
sectarian political practices and require conformity to English law, but the
Crown did not pursue their recommendation to revoke the letters patent.
After Clarendon fell from power in 1667, the Crown lost interest as it
dealt with problems caused by the Great Fire of London and war with the
Dutch.
In 1675, Sir Thomas Osborne, Earl of Danby and Lord Treasurer, resurrected
the idea of a uniform course of colonial government predicated
on Crown ascendancy. The new Committee on Trade and Plantations (the
Lords of Trade) initiated changes in lawmaking to make colonial laws the
15 Brigham, ed., British Royal Proclamations, 53.
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80 Mary Sarah Bilder
enactment of the Crown instead of the assemblies. In 1676, the Crown
rejected a proposed Virginia charter affirming assembly lawmaking power
subject only to review by the Crown and instead issued new letters patent
that placed Virginia in “immediate Dependance upon the Crowne of England”
without mention of an assembly.16 In Jamaica, the Lords attempted to
impose Crown lawmaking modeled on English control over Ireland. In New
England, Edward Randolph cited numerous grounds on which to revoke
the corporate charters, including violations of the laws of England, refusals
to take oaths or permit political participation of members of the Church
of England, denial of appeals to the Crown, and the obstruction of trade
laws.
Colonial opposition and Danby’s fall from power meant that the Crown’s
attempt to take over colonial lawmaking went nowhere. Crown efforts to
exert greater control turned instead to creating limits on colonial lawmaking
authority by developing means to enforce the rhetoric of repugnancy
and agreeableness to the laws of England, which avoided the difficulty and
drama of quo warranto proceedings. Thus when, in 1679, the Crown established
a royal province in New Hampshire with a Crown-appointed president
and council, the assembly’s power was constrained by requirements
that the president and council approve laws and that the Privy Council
have an opportunity for review. Bermuda was similarly restructured after
quo warranto proceedings permitted a new colonial government under a
royal governor in 1684 – 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).
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English Settlement and Local Governance 81
given constitutionally limited lawmaking authority and required to send
laws to the Crown for approval. By 1688, Andros obtained the charters of
the Jerseys and Rhode Island, although Connecticut’s eluded him, hidden
allegedly in an oak tree. Andros faced opposition throughout, however, and
in 1689 the Dominion of New England collapsed amid local uprisings and
the overthrow of James II.
Crown policy on the colonies changed yet again underWilliam of Orange
and his wife, Mary (James II’s daughter). More accepting of Parliamentary
authority, the Crown now confirmed colonial assembly power while maintaining
Crown supervision. In 1691, Massachusetts Bay received a “Royall
Charter” in which the Crown appointed the governor, and the freeholders
elected the assembly and the twenty-eight assistants of the governor’s council.
Assembly control of the council limited the royal governor’s legislative
control, but the assembly was still required to send laws to the Crown for
approval. Privy Council appeals could no longer be prevented, but jurisdiction
was limited to personal actions, permitting the colony for decades to
deny appeals over real property disputes. New York, meanwhile, was given
a Crown-appointed governor and council, an assembly, and Privy Council
review of legislation. The Jersey proprietaries, Connecticut, and Rhode
Island had their charters returned. Pennsylvania was returned to William
Penn after a brief period of Crown rule arising from Penn’s political troubles.
Maryland fared less well under a Protestant Crown unhappy with
its Catholic proprietors. Although the proprietary technically remained,
the Crown acquired the power to appoint and instruct the governor and the
Privy Council gained the power to review legislation and hear appeals. The
Crown’s overall approach to supervisory authority was confirmed in 1696
with the creation of the Board of Trade.
The trend to uniformity in Crown policy created a perception that the
proprietary and corporate charters made those colonies exceptional. In particular,
the corporate governments appeared to make repugnant laws, refuse
appeals, and flout the trade acts. They harbored pirates, coined money, competed
with English goods, and did not take care of their own defense. In
1701, the Board of Trade recommended that the charters “be re-assumed to
the Crown; and those colonies put into the same state and dependency.”17
Proprietors and corporation governments sought to reduce their charters’
vulnerability by voluntarily responding to inhabitant and Crown concerns.
Penn’s “Charter of Privileges” (1701) affirmed legislative power in the unicameral
assembly. Colonial lobbying and the death ofWilliam in 1702 put a
stop to a pending revocation bill, but a new bill to create colonial uniformity
17 State of Government under the Plantations (1701), Proceedings and Debates of the British
Parliaments respecting North America (Washington, 1927), 2: 401.
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82 Mary Sarah Bilder
through royal appointments and appeals appeared in 1705, during Queen
Anne’s reign. This bill failed too. Nevertheless, Rhode Island and Connecticut
decided to permit appeals to the Privy Council and Connecticut even
voluntarily sent occasional laws over for review.
The Crown did not reduce any additional colonies to dependency by
direct policies after 1700. Nonetheless, disagreements ended proprietaries
that had multiple proprietors. In 1702, the Jersey proprietors surrendered
governance to the Crown while maintaining rights to the land. In Carolina,
the proprietors’ shares became embroiled in inheritance disputes, and residents
petitioned the Crown to revoke the charter. In 1720 after a local
revolution, the Crown appointed a royal governor in South Carolina and
insisted on approving the governor for northern Carolina. In 1729 it repossessed
the proprietary charter.
With the accession of George I, antagonism to the remaining charters
quieted after another effort to recall them failed in 1715. That year, the
Crown restored the Maryland proprietary to Charles Calvert, the Protestant
great-grandson of Cecilius Calvert. In Pennsylvania, the Penns also retained
their proprietary and even appointed governors (technically deputy governors)
into the 1770s. In Rhode Island and Connecticut, the corporation
governments remained intact even after the Revolution. Uniform government
in the colonies was never completely achieved. Nevertheless, amid
the variety a common denominator form emerged: a local assembly holding
constitutionally limited lawmaking authority and overseen by either Privy
Council appeal or review.
In 1732, the last charter granted by the Crown confirmed the emergence
of this form of governance, in the process replaying the long history of settlement
practices as if it were an institutional teleology. Initially, the Crown
had delegated its governing authority to private individuals, as corporations
or proprietors. The Georgia charter thus incorporated a group of trustees as a
“body politic and corporate.” The “corporation” of trustees, in turn, elected
a council that appointed a governor, subject to Crown approval. After settlement,
however, the Crown was to have supervisory governance returned
to it. The Georgia corporation would therefore dissolve after twenty-one
years, and the Crown would thereafter appoint the governor. The manner
of government under the future royal governor did not have to be stated:
he and the assembly would pass laws, and the Privy Council would review
laws and appeals to ensure no repugnancies to the laws of England.
In 1701, the anonymous author of An Essay upon the Government of the
English Plantations noted that if “any Alterations in the Government of the
Plantations are necessary, they may be much more easily done now they
are in their infancy, than hereafter when they grow more populous, and
the Evils have taken deeper Root, and are more interwoven with the Laws
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English Settlement and Local Governance 83
and Constitutions of the several Colonies.” Alterations in government were
indeed done more easily in infancy. Unfortunately, by 1701, the government
of the colonies was already well on the path to maturity. Every passing
decade embedded common denominator governance practices more firmly
and rooted colonial government into the colonial constitution. The failure
to reduce the colonies to complete dependency before 1701 – 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
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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.
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English Settlement and Local Governance 85
royal governors like Nicholson began to exemplify the emergence of career
interests in the English colonial system and the development of aspirations
for a uniform colonial policy.
Governors rarely acted al,one, instead serving with a deputy and council.
The office of deputy governor or lieutenant governor was ill defined, its
duties ambiguous and varied across the colonies. The council’s precursors
lay in the broad array of English advisory institutions, ranging from borough
councils to the trading company councils to the Privy Council. Certain New
England settlements initially used the term magistrate for council members,
but in corporation colonies the term assistant predominated. Councilor, with
its English governmental associations, was preferred in the proprietaries.
With the exception of Massachusetts, in colonies under Crown control,
governors nominated councils of twelve inhabitants. Royal instructions
required these members “be men of good life and well affected to our
government and of good estates and abilities and not necessitous persons or
much in debt.” The council advised the governor, sat as a court, composed
the upper house in bicameral assemblies, and consulted in certain colonies
on judicial and other appointments.
The office of governor was all important. Early governors physically
founded their settlements; their absence often doomed the settlement. The
thirty-six instructions given to Virginia Governor Sir Thomas Gates in
1609 indicate the extensive expectations placed on governors. Gates was
to sail the fleet to Jamestown; take control of public records; appoint,
consult, and dismiss counselors; ensure worship of the Church of England;
befriend and try to convert the native peoples; use martial law and chancery
power; make laws; settle a principal seat, build a fort and additional towns;
encourage trade; oversee employment; search out additional commodities;
oversee meals; keep track of letters and instructions from England; listen
to all opinions and objections; and keep secret sealed documents.
Instructions to later royal governors demonstrate the same breadth of
authority and obligation. They held the power of appointment, oath, and
oversight over other governmental branches. They were not to assent to laws
that circumvented disallowance requirements, affected trade or shipping, or
prejudiced the prerogative or property of subjects. They had discretionary
powers ranging from the discouragement of drunkenness to the licensing of
printing presses. They oversaw escheats, collected quitrents, and supervised
the value of currency. In commerce, they assisted admiralty and customs
officers, aided the royal navy (for example, by enforcing laws to preserve
trees for masts), enforced the laws regarding the plantations trade, and
encouraged the Royal African Company’s monopoly over the slave trade.
They were heads of the military, empowered to assist other colonies, but not
to declare war except against “Indians upon emergencies.” They promoted
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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.
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The Assembly
We should not take the existence of the assembly for granted, for the idea
that the governed should participate in governance was somewhat unusual.
In English boroughs and palatines, the assembled governing body was usually
referred to as a council. An assembly was a more representative gathering
with self-governing authority. Early English trading corporations held
assemblies (general courts) to enact bylaws; for example, the Presbyterian
Church of Scotland had been organized by a general assembly. In 1619, the
first colonial lawmaking gathering in Virginia adopted the term, referring
to itself as a “General assembly.” Specific local variants appeared (Virginia
had a House of Burgesses and Massachusetts Bay had a General Court) but
most colonies and Crown instructions referred to a general assembly. The
term remained ambiguous, however, with assembly referring to the assembly
of governor, assistants, and deputies, as well as only the lower branch of
the legislature. Over the seventeenth century, the assembly in both senses
established its existence by gaining lawmaking authority.
Once assemblies began to appear, they quickly became part of colonial
government. In Virginia and Bermuda, the assemblies that convened in
1619 and 1620 likely brought some stability to local relationships. The
Maryland proprietary charter provided for an assembly of freemen that
would help frame laws; such an assembly met possibly as early as 1635.
In 1639, the Crown officially recognized the Virginia assembly in royal
instructions. Parliamentary control during the Interregnum strengthened
colonial assemblies, and the Restoration did not have a significant adverse
effect on them. James, Duke of York, did not include an assembly in his
plans for New York, but one met in 1683. By then, Crown instructions
generally assumed the presence of assemblies.
As representative institutions, assembly composition ran the theoretical
gamut. The early freemen in Massachusetts Bay were also largely officers; the
general court thus tended to duplicate the council. In Maryland, all freemen
were initially summoned to the assembly. The need to make government
work for the inhabitants altered both approaches. In Massachusetts, the
complaints of ordinary landholders led to enlargement of the class of freemen
electing deputies. In Maryland, freemen desiring to avoid attendance at the
assembly developed an informal proxy system among themselves. Maryland
would shrink participation to elected representatives. By the 1640s, representatives
in most settlements were elected from towns or other defined
localities. Inhabitants’ concerns about governance also prompted a shift to
bicameralism, which was dominant by the end of the seventeenth century.
Representatives of towns, burgesses, or counties sat in the lower house;
members of the governor’s council sat in the upper house. Pennsylvania
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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
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known as the Committee for Trade and Plantations (the Lords of Trade). At
first the committee aspired to a direct role in colonial lawmaking. Since the
1660s, laws had been sent from Barbados, Jamaica, the Leeward Islands,
and, on occasion, Virginia for sporadic review; the committee now proposed
drafting laws for the Jamaican assembly itself. The effort failed and
by 1680 the English attorney general had confirmed that Jamaica would
be governed by laws made by its own assembly. The committee settled for
a supervisory role. Instructions to the Caribbean and Virginia governors
and to John Cutt, president of New Hampshire, required the transmission
of laws so that the Privy Council could review them. By the 1680s,
the committee was also hearing appeals from the colonies. In 1681, the
Pennsylvania charter became the first both to require transmission of laws
and to reserve explicitly the Crown’s right to hear appeals. Between 1682
and 1692, such supervision spread by royal instruction and new charter to
Virginia, the Dominion of New England, Massachusetts, New Hampshire,
and Maryland.
At the turn of the century, the Privy Council began to decide in specific
instances whether colonial laws and customs fell outside the bounds
of an imperial conception of English law and customs. In 1696, it created
a new advisory committee of the whole, the Committee for Hearing
Appeals from the Plantations. The Crown established the separate Lords
Commissioners for Trade and Plantations (the Board of Trade), composed
of state officers (initially the chancellor, president, treasurer, high admiral,
secretary of state, and chancellor of the exchequer) and eight appointed and
paid commissioners, usually members of Parliament, to advise as to colonial
laws among other duties. The approach proved effective and would remain
largely in place through the eighteenth century.
Review of colonial legislation and appeals was an intriguing approach
to supervising colonial law. The Crown could claim ultimate authority and
ensure uniformity while still permitting local authorities to pass legislation,
decide cases, and diverge from English law in the first instance. After
1690, more than 8,500 acts were submitted for review from the mainland
colonies, with approximately 470 disallowed. Between 1670 and the
Revolution, around 250 cases were appealed from the mainland American
colonies, with Massachusetts, Rhode Island, and Virginia accounting for the
largest number. Laws found repugnant to the laws of England or contrary
to the royal prerogative touched on inheritance (diminishing primogeniture,
limiting dower rights, treating jointly held property as tenancy in
common); escheats to the Crown; relief of debtors; religious establishment
and religious toleration (or the lack thereof); assembly authority and powers;
regulation of attorneys; creation of courts (particularly equity, chancery, and
admiralty courts), juries, and court procedures; trade and piracy regulation;
and the creation of ports and regulation of custom officers.Yet, most colonial
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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,
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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.
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The Crown’s growing desire for control over law altered this system. In
the 1680s, the Crown began to end where it could the assembly’s jurisdiction
as the highest court of appeal in favor of appeal to the Privy Council from the
colony’s court. New and recurring disputes over the existence and authority
of other colonial courts with jurisdiction over probate, chancery, fines and
recoveries, admiralty, and arbitration reflected this same fight for control
between the Crown (usually in the guise of the royal governor) and the
legislature.
This struggle produced the oft-claimed ancestor of modern supreme
courts, the Superior Court of Judicature, comprised of an appointed chief
justice and associate justices. This transformation should not be misconstrued
as the separation of the judicial function from colony government; to
the contrary, it was an effort to retain Crown control of the judiciary, as well
as an acknowledgment of the time constraints placed on the governor and
council by growth of the colonies. The new court structure appeared in the
Dominion of New England in 1687 and in 1681 in Jamaican legislation.
After 1691, Superior Courts of Judicature soon sat with judges appointed
by the royal governor in New York (technically the Supreme Court of Judicature),
Massachusetts, New Hampshire, and New Jersey. A Superior Court
of Judicature heard appeals and had original jurisdiction in cases involving
title to land or significant amounts of money. County sessions and inferior
courts of common pleas heard smaller cases. This new terminology spread
to Connecticut (1711) and Rhode Island (1729), although the legislature
retained the power to appoint justices. Although Pennsylvania adopted a
Supreme Court in 1722, most southern colonies retained the names of general
or provincial courts and left power in the governor and council, either
directly or by appeal.
The absence of published court opinions reinforced the perception that
courts were not a separate branch. Most proceedings remained solely of
local interest and included prosecutions for fornication, disputes over title
to land, disagreements over inheritances, contested debts, and accusations
of slander. Knowledge of the court was acquired by being in court, relying
on the oral or written reports of others, and reading the manuscript records.
When court proceedings appeared in print they reflected public interest in
the substantive matter and a printer’s hope for financial return. William
Bradford printed the court proceedings in theWest Jersey trial and execution
of Thomas Lutherland for murder under the title BloodWill Out (1692),
as well as legal materials relating to a controversy involving himself and
Quaker George Keith. Other early printed legal materials include Cotton
Mather’s account of five of the Salem witch trials, accounts of Jacob Leisler’s
rebellion, Nicholas Bayard’s trial for treason, and a significant number of
piracy trials. Apparently unique was the printing in 1720 of copies of the
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briefs in a Massachusetts civil case, Nathaniel Matson v. Nathaniel Thomas,
involving the question whether Massachusetts had to follow the English
law of primogeniture and entail. Descriptions of courts nonetheless occurred
in official correspondence and printed descriptions and discussions of the
colonies. From a transatlantic perspective, what the courts governed seemed
less important than who governed them.
Legal Practitioners
We have tended to assume that relatively few lawyers were to be found in the
seventeenth-century colonies. Certainly most criminal defendants entered
the court unrepresented, and many litigants in lower courts proceeded
without attorneys. In 1705, Robert Beverley of Virginia wrote, “Every one
that pleases, may plead his own Cause, or else his Friends for him, there
being no restraint in that case, nor any licensed Practitioners in the Law.”
Yet, attorneys, legal practitioners, and other legal literates abounded in the
colonies. Their presence necessitates reconsideration of the seventeenthcentury
colonies as a world of law without lawyers.
Throughout this period, attorney or practitioner of law was the preferred
label; lawyer was the preferred epithet. In every colony, court records,
statutes, letters, and other documents demonstrate that people labeled
as “attorneys” appeared early and often. In England, the term attorney
had become ubiquitous between 1550 and 1650. Practitioner referred to
these attorneys, along with clerks and solicitors. Attorneys conducted routine
matters in central, local, and chancery courts; composed pleadings;
gave advice; prepared litigation; and served as clerks of the court. Early
seventeenth-century law books were aimed at these legal practitioners. Over
the course of the early seventeenth century, attorneys became differentiated
from barristers. Barristers were more likely to be from elite social circles,
instructed at one of the Inns of Court. Only barristers could argue issues of
law before King’s Bench or Common Pleas. Nonetheless, this distinction
was still developing during the early decades of colonial settlement.
Legal practitioners abounded in the early colonies, both in number and
variety. Some had English legal training. Before 1660, a significant number
of attorneys practicing in the colonies had been trained as attorneys or
barristers or had studied in the Inns of Court. Familiar with English law,
such men played a crucial role in writing early colonial legal codes in
Massachusetts, Connecticut, Rhode Island, and New York. English-trained
practitioners also served as early critics of colonial divergences from English
laws. A second group of legal practitioners was comprised of men who
held political offices that involved the law: recorders and clerks, general
attorneys, governors, and members of councils. In 1649, because people had
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asked magistrates (councilors) for advice in cases that later went to trial,
Massachusetts prohibited such a practice. For similar reasons, after 1670,
colonial acts prevented clerks, sheriffs, constables, deputies, and justices
of the peace from practicing law. A third group of practitioners can be
labeled simply as legally literate.Written literacy, combined with speaking
skills and basic legal knowledge, permitted competent participation in the
legal system despite the absence of formal training. Some legal literates
acted as attorneys; others limited themselves to representing themselves,
friends, associates, or dependents. Merchants comprised one category of
legal literates because the skills needed for transatlantic business and law
overlapped.
Women appeared as attorneys, representing themselves, their husbands,
or other family members. Although these appointments have been described
as “attorney-in-fact” appointments, the phrase was not used, and the distinction
between attorneys-in-fact and those in-law seems a later development.
Female attorneys may have often had the same knowledge and skill as male
legal literates, although they could not serve in political office. The social
response to female practice is unclear. In Maryland in the 1650s, Margaret
Brent famously served as an attorney while a single woman. She litigated
cases, served as executrix for the previous proprietor, and, in that capacity,
unsuccessfully sought to vote in the assembly as the proprietor’s attorney.
In 1658, a Maryland proclamation barred wives from acting as attorneys
for their husbands. The eventual spread of licensing procedures may have
significantly limited the number of female attorneys. Women nonetheless
continued to serve as executors, suing to collect debts, arranging property
transfers, and defending estates against claims.
After 1660, a new generation of legal practitioners arose, many of whom
acquired their legal training in the colonies. Law schools did not exist, and
the colleges that had been established, like Harvard, did not train lawyers.
Attorneys were, in essence, home-schooled: sons learned from fathers, aspiring
practitioners served as clerks or studied with prominent attorneys, and
practicing attorneys shared English law books and commonplace books of
notes. Some practitioners continued to seek English legal training. Men
from Massachusetts and Virginia on occasion traveled to England to spend
time at the Inns of Court. Though the Inns no longer provided a comprehensive
educational experience, attendance provided an opportunity to
purchase English law books, observe at the courts, and learn about the
law through available avenues. Barristers, members of the Inns of Court,
attorneys, solicitors, and clerks could also be found among the waves of
new English and Scottish migrants. Some started colonial practices; others
served in the offices of the expanding royal governments, for example, as
judges in the vice-admiralty courts.
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English Settlement and Local Governance 95
Although the colonies never acquired the hardened barrister-solicitor
distinction of English legal practice, colonial legal practice did have a hierarchy.
By the late seventeenth and early eighteenth centuries, a small group
of attorneys in each colony monopolized practice in the superior courts. In
Maryland, five or six attorneys handled most legal matters, with several
attorneys arguing 90 to 100 cases apiece. Perhaps to prevent litigants from
literally monopolizing such attorneys, Rhode Island and New York had
statutes attempting to limit parties from hiring more than two attorneys.
Colonies set fees based on the court and the type of legal work. The superior
court practice involved appeals and disputes over the application of
the laws of England – 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.
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96 Mary Sarah Bilder
version of the fifteenth-century English attorney oath, and over the next
three decades New Hampshire, New York, Pennsylvania, Delaware, Rhode
Island, Connecticut, and South Carolina followed. The colonies also occasionally
sought to regulate attorney argument. A 1682 Maryland statute
insisted that attorneys should “speak distinctly to one Error first” before
proceeding to the next. In 1736, Rhode Island attorneys tried to bar those
from Massachusetts in part because they “tire the ears of the judges with
their needless repetitions, and sometimes confound and perplex the juries
with their circumlocutions and sophistry so as to obscure and darken the
case more than if it had not been pleaded at all.” In 1718 the colony had
required that at least one retained attorney be a colony resident.21
Several colonies provided attorneys for defendants who appeared disadvantaged
by self-representation. In 1647, Virginia permitted courts to
appoint a man to plead a cause if the party might otherwise lose the case by
his “weakeness.”22 That same year, Rhode Island allowed litigants to plead
their own case or use the town attorney. Some statutes even required that an
attorney take any case for which a fee was presented. Although English law
barred defendants in felony cases from retaining attorneys, Rhode Island in
1669 and Pennsylvania in 1701 authorized indicted defendants to retain
attorneys. Although colonial legislatures understood the problems with
attorneys – 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.
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English Settlement and Local Governance 97
bound the colonies unless particularly named. The author suggested that
“some Rule be established, to know what Laws the Plantations are to be
subject to” and how far Parliamentary acts not mentioning the colonies did
“affect them.” Until then, “we are left in the dark.”
People had been in the dark about what was “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.
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98 Mary Sarah Bilder
In the early 1680s, the Crown’s acceptance of colonial assembly lawmaking
and the passage of new property laws in England shifted the focus to
whether new English statutes applied in the colonies. Of particular importance
in the colonies, the Statute of Frauds (1677) altered the requirement
for a valid will from two to three witnesses. In the colonies where wills had
long been made with two witnesses, the new English statute threatened
to invalidate two-witness wills. The relationship of the requirement to the
colonies would be litigated repeatedly. In 1683, aVirginia case addressed the
issue of whether the Statute of Frauds applied. Virginia attorney William
Fitzhugh argued for invalidation of a 1681 two-witness will because the
“Laws of England are in force here, except where the Acts of Assembly have
otherwise provided, by reason of the Constitution of the place & people.”24
In England, however, Attorney General William Jones reached a different
conclusion, which was apparently shown “to all the then Judges of England,
Who declared the same to be the Law.” Jones stated that the colonies were
only bound by new statutes if expressly named. Jones explained that Parliament
could not have considered “the particular circumstances and conditions
of the plantations, especially considering no Member” came from
there to Parliament. Moreover, the Atlantic meant that colonists would
not know of the law until after it took effect. In short, Parliament was not
expected to include the colonies in ordinary legislation, and the colonial
legislatures were the more appropriate lawmaking authorities.25
The common law was an even trickier matter. In the 1690s, cases involving
English colonial officers in the Caribbean continued to debate when the
laws of England applied. In King’s Bench, Blankard v. Galdy involved the
sale of the Provost Marshal of Jamaica’s office for seven and a half years and
whether a sixteenth-century English statute barring the practice applied
in Jamaica. Chief Justice John Holt concluded that Jamaica had been conquered,
and therefore the laws of England were not in force until so declared.
Because Jamaica had been conquered from the Spanish, the case’s application
to the seemingly not conquered mainland colonies was unclear. The
House of Lords appeal, Dutton v. Howell, involved a dispute between the
governor of Barbados, Richard Dutton, and the executors of JohnWitham,
his deputy governor, for Dutton’s alleged false imprisonment of Witham.
Among other arguments, Dutton claimed that the action could not lie
because the laws might be different in Barbados. The executors responded
that Barbados was a “colony or plantation” and that the common law must
24 Richard Beale Davis, ed.,William Fitzhugh and His ChesapeakeWorld, 1676–1701 (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.
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English Settlement and Local Governance 99
apply in a “new Settlement” of Englishmen. The executors lost, despite
elaborate argument and without explanation. The cases did not provide an
answer, but confirmed the contemporary difference of opinion.
Into the eighteenth century, as the anonymous author had complained,
no one in the colonies or England could “tell what is Law, and what is
not, in the Plantations.” Given the lack of clarity, certain colonies sought
their own rules as to when laws of England would apply. One approach is
probably best referred to as an introduction statute, authorizing English
law in appropriate circumstances. For example, in 1700, the Rhode Island
assembly declared that, where the colony’s laws or customs did not reach
or comprehend a matter or cause, it was lawful to put into execution the
laws of England. The introduction of English laws then could be made on
a case-by-case basis by courts and officials depending on local conditions.
A second approach adopted in South Carolina in 1712 and North Carolina
in 1715 resembled later reception statutes. Here, the colony transferred
various English statutes into its own law and thereby ensured that certain
laws could be pleaded in the courts.
The idea that colonies might be more properly considered new settlements
than conquered territories gathered support in the early eighteenth
century. A new publication of Blankard inWilliam Salkeld’s Reports (1718)
claimed that Holt had declared that in “an uninhabited Country newly
found by our English Subjects,” the laws in England were in force. A 1720
opinion by Richard West, counsel for the Board of Trade, agreed that the
common law and statutes in affirmance prior to settlement were in force as
well as later statutes that mentioned the colonies. A 1722 memorandum
recounted a Privy Council determination of a colonial appeal apparently
from Barbados that similarly distinguished conquered countries from uninhabited
countries found out by English subjects who brought their laws
with them.26 Nonetheless, a report of Smith v. Brown and Cooper, a slavery
case, contained a statement by Holt that “the laws of England do not
extend to Virginia, being a conquered country.” As debates between the
proprietor and the Maryland assembly and the instructions from Connecticut
to its agent in the 1720s demonstrate, people continued to disagree over
the cases, the rules, and the factual history of the colonies – 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.
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100 Mary Sarah Bilder
In 1729, an opinion by the English Attorney General further complicated
matters. Earlier comments had implied that a colony assembly had to enact
post-settlement English law before it applied. The opinion concluded that
a colony could introduce such an English statute by assembly act or receive
it by “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
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English Settlement and Local Governance 101
forme of Laws or Statutes.” However, it “intreate[d]” authorities to “consider
them as laws.” As the author of An Essay upon the Government of the Plantations
pointed out, it was uncertain “how far the Legislature is in their Assemblies.”
Were the colonial assemblies little more than corporations or did they have
the power of “Naturalization, Attainder o,f Heirs, cutting off Intails, settling
Titles to Lands, and other things of that nature”? Colonial criminal laws
seem to have been of particular concern, and a better understanding of this
issue may help explain the tendency of New England assemblies to cite
biblical sources for criminal laws. The author also wanted to know whether
“they may make Laws disagreeable to the Laws of England, in such Cases,
where the Circumstances of the Places are vastly different, as concerning
Plantations, Waste, the Church, &c.” Colonial assemblies accepted this
justification. The South Carolina “Negro-Act” (1740) thus explained that
crimes that gave a “Slave, Free-Negro, Mulatto, Indian or Mestizo” the death
sentence were “peculiar to the Condition and Situation of this province,
[and] could not fall within the Provision of the Laws of England.”27
The form in which colonial laws appeared similarly reflected shifting
uncertainties about authority. A printed collection of laws testified publicly
and permanently as to the location of government and lawmaking authority.
Although most colonies required laws to be read publicly or sent to towns
and churches, a printed volume offered constant access for literate readers
on both sides of the Atlantic. This accessibility thus also posed a danger – 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).
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102 Mary Sarah Bilder
politics shifted away from Crown authority. The volume emphasized the
general court’s authority. Yet, the edition had a short life, as by 1651 legislative
changes left it judged “unvendible,” largely turned to “wast pap’r”
and burnt.28 The assembly published a new version of the Laws and Libertyes
in 1660 and continued to print later session laws. In 1672 and 1673,
the corporate governments of Massachusetts, Plymouth, and Connecticut
had Samuel Green of Cambridge print their laws with title pages that
emphasized the “General Court,” not the Crown or England, and opening
pages that addressed the “Inhabitants” and “Freemen” of the colonies. In
Virginia, the Crown-appointed governor used printed laws to promote a
different authority. His collection for Crown officials, The Lawes of Virginia
Now in Force (London, 1662), prominently displayed the King’s name on the
title page and proclaimed Crown as well as assembly authority. Amidst controversies
over colonial authority, printed laws declared legislative authority
to inhabitants and to England. Edward Randolph used the printed laws to
demonstrate repugnancies to Crown officials, and the Connecticut edition
was sent to London as evidence. To avoid such scrutiny, Rhode Island never
printed its laws in the seventeenth century.
In the 1690s, colonial law printing began to flourish as the relationship
between Crown and assembly became clarified. The Crown’s requirement
that colonies send laws to England for review and acceptance of assembly
lawmaking authority combined to produce the laws of their “Majesties”
provinces: New York (1694) New Hampshire (1699), and New Jersey
(1709). As the threat to the charters receded, corporation and proprietary
colonies also printed laws. Early editions of proprietary laws appeared in
Maryland and Pennsylvania in 1700–1. Between 1714 and 1720, these
two colonies, along with Massachusetts, Connecticut, New Hampshire,
New York, New Jersey, and Rhode Island, published official versions. The
Rhode Island, Connecticut, and Massachusetts editions carefully acknowledged
both English and local authority. With the title pages declaring in
small print his or her “Majesties Colony,” the charter appeared as the first
document. Rhode Island nonetheless remained wary and silently altered certain
laws to conform to current English laws. The southern royal colonies
were curiously slow in printing official collections: Virginia (1733), South
Carolina (1736), and North Carolina (1751). Despite the growth in printed
collections, as the author of An Abridgement of the Laws in Force and Use in
Her Majesty’s Plantations (London, 1704) noted, gentlemen concerned with
the plantations had “great Difficulty” in procuring copies of the laws to
compare “the Laws and Constitutions of each Country, or Province, one
28 Petition of Richard Russell (1651), The Laws and Liberties of Massachusetts (Cambridge,
1929), viii (Max Farrand introduction).
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English Settlement and Local Governance 103
with another.” The question, what is law in the colonies, remained difficult
as a theoretical and practical matter.
CONCLUSION
A century and a half after the question was asked, “What manner of government
is to be used,” the settlements had produced one answer. In the
two corporation colonies, two proprietaries, and remaining royal colonies, a
governor served as translator for Crown policies, an assembly held the lawmaking
authority limited by the requirement of non-repugnancy to the
laws of England, and the Crown through the Privy Council supervised the
boundaries of colonial authority.
What manner of government was this system? English settlement practices
had created a government of dual authorities, legitimizing both Crown
and colonial legislative authority. Acceptance of these dual authorities permitted
colonial governance to successfully negotiate the geographic problem
of the Atlantic. Although these dual authorities were in tension, they
were not perceived as incoherent. By the mid-eighteenth century, however,
as William Blackstone demonstrated, English political thought had
become rhetorically intolerant of dual authorities. He wrote that “there is
and must be” in all governments “a supreme, irresistible, absolute, uncontrolled
authority, in which the jura summi imperii, or the rights of sovereignty,
reside.” Blackstone placed this “sovereignty of the British Constitution” in
Parliament – 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.
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4
legal communications and imperial
governance: british north america and
spanish america compared
richard j. ross
Strategies and practices for the communication of law were vital to England’s
capacity to govern its North American colonies. A diverse array of mechanisms
for exchange of legal information characterized the expanding English
empire – 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
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Legal Communications and Imperial Governance 105
communications became an unreliable and inconsistent agent of imperial
centralization in the Anglo-American case.
I. THE ROLE OF COMMUNICATIONS IN THE TIGHTENING
OF IMPERIAL OVERSIGHT
Sheer distance and the slow, expensive, and fallible communications that
went with it hindered effective English oversight of the early and middle
seventeenth-century colonial legal systems. Four to twelve weeks were
required to cross the Atlantic Ocean. Under such circumstances, episodic
and inefficient supervision by central authorities could surprise no one. The
Privy Council and national tribunals at Westminster could not supervise
Massachusetts and Virginia as closely as they could Durham and Bristol.
No assize system of traveling royal judges fanned out from London to hear
disputes in the colonies. Settlers could not appeal cases to the King’s courts
atWestminster but only to the Privy Council, and these petitions were few
and far between. Royally appointed commissions seldom appeared in the
colonies. Geographic distance and slow, irregular communications encouraged
the autonomy and interpretive leeway of local elites at the expense of
their nominal superiors. Opportunities to organize colonial law and politics
in ways that differed meaningfully from seventeenth-century England
abounded. The result was far more variety among the early legal orders of
New England, New York, and Carolina than, say, among those of Devon,
Sussex, and York.
The “imperial school” of colonial historians has charted the movement
away from this initial seventeenth-century starting point. Their work
explains how and why, beginning in the last third of the century, the
Crown tightened supervision of the colonies. It was during this period that
institutions and governing practices coalesced to form the mature system
of royal superintendence. First, to toughen enforcement of the Navigation
Acts and enhance general supervisory capacities, the English government
expanded the powers of the customs service and founded permanent
vice-admiralty courts under Parliamentary sanction. The Lords of Trade
(1675–96) 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
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106 Richard J. Ross
governors’ instructions and the disallowance of statutes and reorganized the
legal system to favor Superior Courts of Judicature and the governor and
his council at the expense of local tribunals.
A witness to these developments, the mid-eighteenth-century Massachusetts
governor, Thomas Pownall, complained that the new regime
of imperial governance lacked coordination in the collection and analysis
of information.1 Pownall’s concerns informed the historians of the imperial
school and their successors, and at times their work considers explicitly the
strategies that the English government used to overcome distance and the
obstacles of communication. At other points their work provides “raw material”
that enables us to appreciate how the empire encouraged communications
as a byproduct of institutions and policies established for other purposes.
Such inadvertent prompts to information exchange, no less than the
explicit strategies, were part of the empire’s legal communications system.
Consider, first, the institutions directly charged with acquiring knowledge
about the colonies’ governance and legal systems. The Crown organized
a series of Interregnum and Restoration commissions, and later the
Lords of Trade and the Board of Trade, as repositories and clearinghouses of
information. Their duty was to investigate the laws and government of the
colonies. To that end, they collected records and reports and corresponded
with governors and other officials, merchants, agents, ship captains, and
visiting settlers. They called on the colonies to commission resident agents
in London who would be available for consultation. The Lords of Trade and
the Board of Trade dispatched questionnaires to governors and demanded
periodic forwarding of important public papers and the journals of assemblies.
They used the information they collected in preparing reports for the
Crown, suggesting compromises of American disputes and recommending
the approval or disallowance of colonial laws. They standardized and
updated instructions to governors about judicature and traced how well
those instructions worked in different colonies.
These efforts significantly improved the empire’s capacity to gather and
record information. Royal servants in the mid-seventeenth century had possessed
limited and unsystematic knowledge of colonial affairs. The Lords
of Trade and especially the Board of Trade acted more methodically and
proactively, diversifying sources of information and establishing topics of
inquiry. Their efforts required a small bureaucracy of long-serving clerks
maintaining cross-referenced entry books. Nor were they alone. The Secretary
of State for the Southern Department, theTreasury and Customs service,
the Admiralty, and the Bishop of London all contributed to the Crown’s
1 Thomas Pownall, “The Administration of the Colonies, Wherein their Rights and
Constitution are Discussed and Stated” (London, 1971 [4th ed. 1768]), 12–27.
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growing capacity to acquire and organize information too, though what
they learned remained split up among numerous, ill-coordinated agencies.
The Crown could demand that colonies send correspondence, reports,
laws, and agents to London, but actually obtaining them was another matter.
Royal officials complained that questionnaires and requests for public
documents went unanswered, that laws and agents simply did not arrive.
To encourage communications, the empire used incentives and coercion. If
creating proactive clearinghouses and repositories for information was the
Crown’s first strategy for mitigating distance, its second was to support those
institutions with inducements and punishments. Colonial charters, Board
of Trade correspondence, and governors’ instructions all contained threats.
The Pennsylvania charter required that the proprietor keep an agent in
London to answer complaints and pay damages, or face loss of the province.
The Crown reprimanded governors who did not write frequently enough.
It threatened to withhold salary from governors who did not transmit their
colony’s laws or to remove them from office if they failed to return questionnaires
about colonial law and government.
Enticements to communicate about law were less obvious and require
teasing out. They often arose indirectly as a byproduct of trans-Atlantic
patronage and lobbying. Colonists who sent royal officials analyses of the
shortcomings of customs inspections along with suggestions for reform
might receive a position as an inspector. Those whose jobs depended on
Crown patronage, such as royal governors, would keep leading English
politicians informed about the state of colonial governance as a means of selfdefense
in local factional intrigues. Board of Trade investigations of unjust
colonial laws and official misconduct would lead complainants, defendants,
and their allies to provide considerable quantities of otherwise elusive facts
and opinions, along with supporting documents. Colonial interest groups
working through London contacts would supply the government with information
to secure influence over policymaking.
The review of colonial statutes by the Board of Trade, as advisor to the
Privy Council, provides a good example of the empire’s incentives to legal
communications. The Board and Council gained information by directly
questioning a wide range of sources about the origins and effects of colonial
laws. This much is obvious. Other effects were more subtle. First,
burdened with many responsibilities, the Board and Council might ignore
colonial laws for months or years at a time or be tempted to examine them
superficially. Knowing this, English interest groups and lobbyists favoring
disallowance or approval of laws provided the Board and Council with
their own analyses of statutes and colonial conditions. They hoped to influence
the outcome of the process and set the terms of the review, but also,
more fundamentally, to engage the attention of distracted administrators.
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108 Richard J. Ross
Second, the Board might hold off recommending confirmation or rejection
of statutes and allow them to “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
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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.
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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
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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.
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112 Richard J. Ross
III. COMPARISON OF LEGAL COMMUNICATIONS SYSTEMS IN
BRITISH AND SPANISH AMERICA
In the words of John Elliott, Spain maintained in America a “highly institutionalized
empire, with an elaborate bureaucratic system dedicated to
the vigorous assertion of the Crown’s authority.” This “intrusive (if not
always effective) state” involved itself “in many different aspects of colonial
life.” By the middle seventeenth century, Spain had dispatched approximately
400,000 cedulas (royal decrees) to its New World communities
and officials.4 At the top of the system were the Spanish Crown and the
Council of the Indies. The Council supervised and sanctioned officials,
drafted laws, and served as an appellate court in civil cases. No significant
expenditure of money or change in governmental policy could go
forward in the Spanish empire without the approval of the Council or the
Crown.5
In the Americas, two viceroys (one for New Spain and one for Peru) and
several governors represented the Crown in executing law, overseeing civil
and military affairs, and nominating the senior personnel of the church.
A series of judicial-administrative tribunals, the audiencias, served as the
backbone of the Spanish American bureaucracy. The audiencia heard civil
and criminal cases. It also served as the court of appeals in its district,
as an advisory panel for the viceroy or governor, and as a legislative body
for making local regulations. Ten audiencias operated in Spain’s sixteenthcentury
American empire; more were added later. University-trained civil
and canon lawyers (letrados) supplied the audiencia judges and a substantial
portion of the membership of the Council of the Indies. Alongside the
viceroys and audiencias stood a fiscal hierarchy that enjoyed coordinate power
in the business of overseeing royal revenue.
The ecclesiastical system further complicated the institutional structure
of the Spanish empire. Bishops reported to the Crown in matters of administration
and to the Pope in matters of faith. Though the viceroy or governor
coordinated the government of his territory and nominated most of the
lesser officeholders, audiencia judges and senior officials of the ecclesiastical
4 Clarence Haring claims that the seventeenth-century statutory compilation, the Recopilacion
de leyes de los reynos de las Indias (1681), distilled 400,000 royal cedulas down to
6,400 laws. Haring, The Spanish Empire in America (New York, 1963), 105. Prof. Mark
Burkholder (in a communication to the author) has suggested that the figure of 400,000
cedulas may be high. Still, the Spanish empire sent many times more metropolitan decrees
(laws, Crown orders, and administrative interventions) to its New World colonies than
did the English empire.
5 The Crown sometimes acted in the New World directly or through institutions other
than the Council of the Indies – for instance, the Council of Castile.
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and fiscal hierarchies received their appointments directly from the Crown
and exercised substantial autonomous authority. Like the viceroys and governors,
they enjoyed the right to correspond with and appeal to the Council
in Spain. John Leddy Phelan observed a half-century ago that the Spanish
Crown had created a “complex bureaucratic pyramid with multiple, partly
independent and partly interdependent hierarchies.”
The viceroys, governors, and audiencias oversaw smaller units of jurisdiction.
Corregidores or acaldes mayores, appointed by the Crown or viceroy, governed
towns and the surrounding countryside. These local officers exercised
political, administrative, and to a lesser extent judicial authority within
their districts. Within the towns, they worked with a municipal council
(cabildo), which heard judicial cases, distributed land, supervised communally
owned property and local infrastructure, and imposed taxes.
The Crown was suspicious of its distant officials in the Americas. A
steady stream of royal orders, decrees, and regulations sought to direct their
activities or, at least, lessen the boundaries of their discretion. The Crown
also designed residencia and visita procedures to scrutinize and control officeholders
by hearing complaints of malfeasance. At the end of a magistrate’s
term of office, an investigating judge collected and evaluated grievances
against the departing official in a residencia process. All Crown appointees,
from the viceroy down to the local corregidor and the municipal cabildo, went
through a residencia. From time to time, in a visita procedure, a specially
appointed judge heard evidence in secret in order to investigate the conduct
of an official or tribunal. The visita served various purposes: it assessed
the enforcement of particular laws, superintended troubled institutions or
wayward officeholders, re-inspired obedience among officials identifying
more with the local community than the Crown, and reported to the Council
of the Indies on the administrative or political situation. The judges
conducting the residencia or visita could advise, fine, suspend, or exile the
officials under investigation, although the Council might alter or reverse
sanctions recommended or imposed in the Americas. Through visitas and
residencias; through judicial appeals, correspondence, and complaints; and
through requests for adjustments in legislation and policy, the Council
received considerable quantities of detailed, if self-serving, information.
This sketch of the Spanish bureaucracy in the Americas can help highlight
distinctive features of English imperial governance and its system of
communications.We can see immediately that, in comparison with Spain,
England’s review of colonial legislation, judicial decisions, and official conduct
did not press down as deeply into the administrative structure and
into society. In his descriptions of Tudor government, G. R. Elton looked
for what he termed the “points of contact” between the Crown and the
localities (e.g., the Privy Council, Parliament, the royal court). In this vein,
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114 Richard J. Ross
consider the points of contact between the imperial center and the colonial
periphery. England maintained communications channels with officials
and institutions at the top of the colonial legal and political hierarchies.
The Privy Council heard appeals only from the highest court in the colony
(which might be the governor and his council). It would not accept an
appeal from intermediate colonial appellate courts, let alone from town,
county, probate, or orphans’ tribunals or from justices of the peace. Nor
would it second-guess jury verdicts.6 The Privy Council reviewed legislation
passed by assemblies, but not town ordinances, or local customs, or the
bylaws of corporations. England sent instructions to and required reports
from governors. No similar demands went out to assembly representatives,
town selectmen, or justices of the peace.
To be sure, England assumed that by focusing communication and review
at the highest points of the political and legal hierarchies, imperial priorities
would influence colonial society indirectly. Assembly legislation might
confirm or revise local ordinances and customs and, in so doing, bring them
before the Privy Council. Judicial decisions in a colony’s highest court,
which could be appealed to the Council, would take note of and shape the
activities of lower tribunals. The governor would serve as a point of contact
between the metropolis and lesser executive and judicial officials that he or
the Crown appointed (which, in some colonies, included the critical local
figure, the justice of the peace). The governor could pass on sections of his
instructions and collect information to forward to London.7
What stands out in this picture is how mediated and indirect communication
about law was between London and colonial society. The Spanish
empire, by contrast, encouraged direct communication between the Council
and a wide variety of officeholders at the bottom as well as the top
of its multiple bureaucratic hierarchies. By creating a variety of bureaucracies
with ill-defined and overlapping jurisdictions, the Spanish Crown
created conditions for rivalry. With rivalries came denunciations of opponents
and appeals to Spain for redress and instructions. The Council of the
Indies made sure that the viceroys and governors were not the primary conduit
for communications – 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.
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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.
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116 Richard J. Ross
Yet, the English and Spanish empires negotiated consent and achieved
decentralization in dissimilar ways. In Spanish America, the importance
of consent can be obscured by features of the empire’s emphasis on topdown
direction: the heavy reliance on royally appointed bureaucracies, the
absence of representative assemblies, the conversion of town councils into
self-perpetuating oligarchies, and the eagerness of the Council of the Indies
to legislate on so many minute aspects of colonial life. On closer inspection,
though, Spain’s governing apparatus and its communications system served
as a device for mobilizing consent (or at least acquiescence) and assuaging
dissatisfaction among Spaniards and creoles in America. Irritated colonists
did not protest Crown policies through assemblies, because they had none.
Rather, they sent petitions, letters, and agents to the Council of the Indies.
Or they set one section of the bureaucracy against another or played the
church off against the state. Or they pressed their opinions on administrators
informally, sounding out their willingness to accept a new tax or enforce a
proposed policy. Or when faced with troubling royal orders, they encouraged
officeholders to invoke the formula, “I obey, but do not execute.” Spanish
law permitted officials to suspend temporarily enforcement of an unjust
metropolitan order – 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
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steady stream of correspondence to leading statesmen, the Board of Trade,
and the Secretary of State for the southern department. There was even
a dim echo of the Spanish doctrine of “I obey, but do not execute.” In
1752, the Board of Trade demanded that governors not deviate from their
instructions unless faced with an emergency. Should the governor lay aside
his instructions, he must write to England and explain his reasons.
Yet on closer inspection, these apparent similarities mask critical differences
between the English and Spanish systems. The English empire
did not use royal bureaucracies as its primary device for negotiating consent
in a decentralized empire. The Crown did not aspire to be the direct
regulator of the settlers’ day-to-day affairs. It left this work to the governors,
assemblies, courts, and local officials, who collectively served as intermediaries
between the colonists and the metropolis. The English empire
focused on overseeing these intermediate authorities through such devices
as gubernatorial instructions and review of legislation and judicial appeals.
Although colonists did lobby in London, they principally expressed their
consent or opposition to royal policies through the intermediary authorities
that lay between the metropolis and themselves. In the English system of
political decentralization, the empire fastened its lines of communication
to these intermediary authorities, these points of contact. It connected to
the governors through instructions and through the trans-Atlantic minuet
of patronage. It connected to the assemblies through Privy Council
review of legislation and through gubernatorial instructions demanding
restraint of the legislatures. It connected to the courts through appeals to
London, through royally determined appointments to the chief justiceship,
and through assessment of colonial statutes establishing judicial organization
and procedures.
The English empire did not try to circumvent these points of contact and
create direct, vibrant communications routes downward into the counties
and towns and outward into the wider society. It seldom deliberately established
overlapping bureaucracies or provoked jurisdictional conflict as a way
of generating a flow of information to London. Instead, it tried, with partial
success, to route communications to and from the Crown through the colonial
governors at the expense of lesser officials and assemblies. These policies
sharply contrasted with Spanish insistence that officeholders beneath the
viceroy, from audiencia judges and corregidores to cathedral chapters and town
councils, enjoyed a legally protected “right” to correspond with the Council
of the Indies over the head of their superiors. Unlike Spain, England did
not build multiple, alternative channels of communications into the middle
and bottom of legal, social, and political hierarchies.
The nature and limits of England’s communications system emerged from
the economic and political conditions of its empire. Unlike Spain, England
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118 Richard J. Ross
did not require an extensive colonial state to organize the mining and
transport of precious metals. Indeed, only as staple crop exports increased
in value in the middle seventeenth century did England begin to establish
its more modest imperial structures. Nor did England need to supervise
the exploitation of the labor and tribute of indigenous peoples or try, in
any serious sense, to protect and Christianize them. England expected to
govern colonies of its own settlers who would engage, as they did at home, in
self-government under loose royal supervision. Finally, although the Crown
regulated and taxed overseas trade, it scarcely touched economic activity
within the colonies themselves (in contrast to Spain’s extensive system of
internal taxes and commercial controls).
The communications practices to which these circumstances and assumptions
gave rise were attended by important inadvertent effects. Seven particularly
notable features of the English system helped preserve a significant
measure of local control and diversity in the colonies’ legal systems even
amid tightening imperial oversight.10
Legal Regulation of Institutions Versus Individual Justice
The English empire displayed relatively little interest in providing justice
to individuals injured by colonial institutions and officials. It viewed itself as
a guarantor of justice in the NewWorld, but it upheld justice in much the
same indirect and mediated fashion as it conducted government – 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.
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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.
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120 Richard J. Ross
oversight of the empire’s legal system legitimated it, for the King had a
duty to listen to aggrieved subjects in the interests of justice. Although the
English monarch also had a duty to redress grievances, the empire did not
turn on an intensely personal and paternalistic understanding of kingship
in the Spanish style.
As a result of the Spanish empire’s political presuppositions, its American
subjects could find ways to approach the King and his Council of the Indies
despite the limitations on civil appeals from audiencias. First, one might
charge that officials in America acted contrary to religion and justice, the
two key concepts legitimating the empire’s legal system. Royal institutions
conceived of their mission less as following promulgated law (ley) than
as upholding justice (derecho) or giving subjects their due. Second, one
might assert that tribunals or officials in America acted corruptly. The
king and Council received frequent complaints about biased magistrates.
These petitions offered a way to review, under another guise, the validity
of an official’s legal decisions when a claim of interpretive mistake could
not be brought to the Council because of its restrictions on civil appeals.
Petitions sent to the king directly were not bound by rules limiting who
could apply, how, or why. If the king’s staff took an interest in a petition,
they would instruct the Council to consider it. These petitions abound
in the Spanish archives. Contemporaries did not take them at face value.
They knew that petitions demanding honesty, piety, and justice were often
a vehicle for pursuing feuds and institutional rivalries. Still, the king and
Council accepted, even encouraged, petitioning in order to uphold the
values important to the empire’s legitimation and to learn about the doings
of American officials.
In the English empire, a private individual could not petition the Privy
Council, Secretary of State, or the king himself by vaguely alleging the
catch-all categories of injustice and impiety. We have seen that the Privy
Council would hear appeals from the highest court of a colony and would
investigate complaints of misconduct by those able to navigate its lengthy,
formalized procedure and produce evidence authenticated by a colonial governor
(possibly the patron of the accused official). Aside from these limited
channels for hearing individual complaints, the English empire protected
justice in the New World by overseeing the structures and procedures of
colonial institutions. Consider a selection of the issues addressed in meetings
of the Board of Trade, reviews of colonial legislation, and instructions to
governors. Imperial authorities regulated colonial juror selection and qualifications,
but left intact the verdicts of particular juries. They reshaped
court organization, but did not consider the decisions of particular courts
beyond the very limited subset of appealable cases. They prescribed the
form of oaths, but did not ask whether officials, having taken the oaths, gave
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colonists their due. And they struck down colonial laws that gave judges
too much discretion, but did not investigate how the judges used their
discretion. The English empire’s preference for regulating the structures
and procedures of colonial institutions, rather than for assessing whether
individuals obtained justice, helped insulate colonial legal decision making
at the local level.
Strategies for Resisting Crown Authority
The dissimilar structure and purposes of legal communications in the
English and Spanish empires encouraged their inhabitants to emphasize
different strategies for resisting metropolitan oversight. Residents in Spanish
America used various forms of consultation – 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.
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122 Richard J. Ross
seventeenth century. Overt opposition faded in the early eighteenth century,
but litigants continued to face obstacles. Governors and court clerks sometimes
prevented the transmission of a written record to the Privy Council
or else provided a deliberately scanty one.
In general, over the course of the colonial period, the deliberate withholding
of information receded in importance as a legal and political tactic. From
the late seventeenth century onward, the growth of imperial institutions and
the increased density of trans-Atlantic ties through agents, merchant networks,
and interest groups made lobbying both easier and more valuable.
Increasingly, settlers and their London intermediaries tried to negotiate
with Crown officials and Parliament to shape or deflect metropolitan decisions.
Considered as one among a repertoire of strategies for dealing with
the metropolis, deliberate withholding of information underwent a relative
decline in importance.
Yet, the tactic never went entirely out of fashion. Deliberate withholding
of legal information continued to work well because the English empire
fastened its legal communications channels to the top of NewWorld legal
and political hierarchies. In comparison to Spanish colonial notables, local
elites in British North America tried more frequently to starve metropolitan
authorities of knowledge, rather than mislead and delay them by flooding
them with questions, missives, and requests for guidance. Not simply the
natural outcome of distance and irregular ocean crossings, English settlers
were better able to preserve autonomy by keeping information local because
of the structure of legal communications in the English empire.
Transatlantic Versus Intracontinental Orientations of Legal Communications
The English empire inadvertently promoted diversity and local control
by orienting legal communication more across the Atlantic (between
the metropolis and each colony) than continentally (among the various
colonies). Trans-Atlantic interactions dominated seventeenth-century
exchanges between England and the colonies – in commerce and the distribution
of news no less than in legal communications. By the late seventeenth
century, however, more intensive coastal trade, improvements in
the postal system, and the multiplication of newspapers facilitated the dissemination
of information and transfer of trade goods among the colonies.
As intracontinental exchanges intensified during the eighteenth century,
what was striking about law as compared to commerce or news circulation
was the extent to which trans-Atlantic communications links continued to
predominate over intracontinental contacts.
Why were legal communications distinctive in so heavily favoring trans-
Atlantic over intracontinental channels? First, Crown officials commonly
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directed metropolitan review and discussion of law toward individual
colonies, rather than toward regions or the continent as a whole. This
emphasis on the colony as the basic unit of analysis and interaction was
not a necessary feature of the English empire. By the later seventeenth century,
trade increasingly passed through regional and continental networks;
by the mid-eighteenth century, the empire often employed regional military
commands. The customs official and merchant thought in terms of trade systems,
the soldier in terms of theaters of operation (which cut across colonial
boundaries). Law, by contrast, operated within jurisdictions. Colonies, not
regions, served as the basic legal and political jurisdictions of the empire.
As a result, the empire’s major legal communications channels connected
London to individual colonies. The Privy Council subjected the legislation
of each colony to a separate review. It exercised its appellate jurisdiction, as
Joseph Smith observed, “not as a court for an empire, but as a court of last
resort for each particular jurisdiction.” The Board of Trade dealt with each
colony through its resident agents in London. It badgered those that failed
to send an agent, and it resisted the stationing of multiple agents representing
the governor, proprietor, or assembly alone, rather than the colony as
a totality. England placed royal governors, attorneys general and chief justices,
and vice-admiralty judges in given colonies, where they tended to stay
until removed from power or reassigned. Spain circulated Crown servants
by routinely and deliberately promoting officials from a lesser post in one
part of the empire to a higher post somewhere else, a policy that England
seldom followed before the nineteenth century.13 Spain’s posting of viceroys
in particular audiencias elevated these centers relative to other audiencias that
needed to stay in contact with the viceroy and take account of his policies.
England did not encourage regional interactions by making one colonial
capital the administrative center for its neighbors.14 Its officials focused
on the colonies in which they lived. Taken together, the English empire’s
choices downplayed intracontinental legal communications in favor of links
between particular colonies and the metropolis.
Legal knowledge traveled through other routes as well – 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.
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124 Richard J. Ross
primers for local officials). Apprenticeship within one’s home colony provided
the foundation of legal instruction, supplemented by the immigration
of learned practitioners from England and the occasional American who
attended the Inns of Court. The training of lawyers, like the dissemination
of law books, largely took place within colonies, rather than regions. This
would change. By 1820, universities and proprietary law schools (such as
Litchfield) took in students from all around the country. Massachusetts and
New York emerged as centers of law publishing, not only for their own
state materials but also for texts of national interest. But in the colonial
period, regional and continental law training and publishing, though not
unknown, were of far less significance. The pre-Revolutionary settlements
also lacked integrating mechanisms characteristic of the nineteenth century:
national legislative and judicial institutions, judges riding circuit across a
group of states, and courts engaging with decisions from other American
jurisdictions (a difficult matter before the routine publication of American
cases began in the Early Republic). In short, the patterns of colonial law
training and publishing, like the practices of imperial governance, disposed
Connecticut, Pennsylvania, and Carolina to exchange knowledge about law
more with England than with each other.15
Given the prevalence of trans-Atlantic over intracontinental channels,
what follows? From one perspective, this pattern facilitated the eighteenthcentury
“anglicization” of colonial law. The trans-Atlantic orientation of
legal communications in the English empire encouraged a convergence of
the diverse seventeenth-century colonial legal systems around metropolitan
norms. From another perspective, though, the trans-Atlantic bias in
communications inadvertently preserved local autonomy and diversity by
retarding the capacity of any one colony to emerge as a standard for the
others. Colonies might converge on the legal practices and values of the
metropolis or of each other. The prevalence of trans-Atlantic legal communications
facilitated the first of these possibilities (anglicization) while
15 As always, there were exceptions – institutions and practices that encouraged the exchange
of legal knowledge among colonies. The Board of Trade often standardized instructions
about legal affairs, sending the same ones to governors in a variety of colonies for years at a
time. The Customs Service appointed a surveyor-general who traveled among the colonies,
in the process sharing expertise about trade regulation. A few of the agents residing in
London served several colonies at once and learned to defend the legislation and judicial
practices of multiple jurisdictions. Colonies borrowed statutory law from one another.
Advocates preparing appellate cases for review by the Privy Council sometimes compared
the law of their jurisdiction to that of other colonies in search of commonalities. My argument
for the predominance of trans-Atlantic over intracontinental legal communications
is ultimately a relative one; it is a point about balances.
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discouraging the second (emergence of a colonial standard). Settlers knew
less about the activities and assumptions of each other’s legal systems than
they did about England’s. They constantly debated which provisions of
England’s law they should adopt, reject, or meld with their own, but they
did not need to adopt a position on each other’s legal practices – assuming
that they could learn about more than published statutes, no easy matter.
As a result, no colony served as the dominant clearinghouse of legal
information for the others. None obtained a heightened power to block,
redirect, or frame circulating legal knowledge. None provided the home
for institutions that reviewed and interpreted law for the others or taught
practitioners drawn from all over British North America. None emerged as
the standard for the others to mimic or define themselves against. The patterns
of communications in the empire, then, simultaneously encouraged
anglicization and preserved a measure of diversity by muting the pressure
on colonies to orient toward the legal cultures of their neighbors and
rivals.
The Position of Native Peoples Within the Legal System
The English empire’s relative lack of interest in the internal legal affairs of
Native Americans reduced metropolitan incentives to oversee the settlers’
laws vis-`a-vis the Indians. This reluctance to intervene, which stands out
strikingly in comparison to the Spanish experience, helped preserve local
control and diversity in the colonists’ legal systems. Native Americans
maintained a variety of relationships to the colonists’ law.16 These can be
placed on a spectrum. Indians who resided in colonial towns submitted to
the settlers’ legal system. Members of tribes that acknowledged English
sovereignty but lived collectively in an Indian community near or within
colonial borders maintained a more selective, ad hoc connection to the
settlers’ law. They commonly invoked or were forced into the colonists’
legal system in intercommunal disputes between Native Americans and
Europeans (typically involving crimes, sex and marriage, land sales and
boundaries, and commercial exchanges). Colonial authorities were eager to
expand the theoretical reach of their jurisdiction over Indian communities
in order to pull important disputes into their courts at their discretion,
but in practice they left largely untouched legal matters arising among
Native American themselves. Finally, beyond the frontier of settlement,
independent tribes exercised nearly unqualified sovereignty. They might
accept the conclusions of the colonists’ law in particular cases, such as
16 For more on these matters, see Chapter 2 in this volume.
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126 Richard J. Ross
intercommunal crimes or land transactions, but only as a result of diplomatic
negotiations.
Although the relationship of Native Americans to colonial law was highly
variable, what stands out is the relatively limited scope of English ambitions,
at least in comparison to the Spanish. English settlers aimed to define to their
own advantage the terms of social and economic interaction – in particular,
to regulate violence and oversee the dispossession or sale of Indian land. They
sought their own protection, enrichment, and aggrandizement. However,
settlers showed markedly less interest in reshaping the legal relations of
Native Americans among themselves. The colonists made no systematic
effort to anglicize the legal systems of Native American communities in the
backcountry or beyond the frontier on the analogy of the (largely ineffective)
campaign of Christianization.
The Spanish empire intervened more forcefully and self-consciously to
reorder the law of Indian communities. Demography, reinforced by an
ideological commitment to Christianizing unbelievers, proved decisive.
Although historians disagree about the size and distribution of the indigenous
and European populations, they agree that in the early decades of
the conquest, tens of thousands of Spaniards confronted tens of millions of
Indians. They also concur in finding that indigenous populations declined
drastically in the sixteenth century before stabilizing and slowly recovering
in the seventeenth or eighteenth century. In 1518, Central Mexico contained
ten to twelve million native inhabitants (or perhaps as many as twenty-five
million) before the population decreased to one or two million at the turn
of the seventeenth century. Approximately nine million Indians (perhaps
as many as eleven and a half million) lived in Peru in 1520. Only about
600,000 remained in 1630. Spaniards would remain a minority throughout
the colonial period. When they established the political and legal institutions
of their empire in the middle sixteenth century, they constituted a
tiny minority.
The colonists of British North America encountered far smaller indigenous
populations, which they supplanted in their core areas of settlement.
Perhaps 700,000 Native Americans lived along the Atlantic coastal plain
and in the Piedmont regions that provided a home to the European settlers.
Their numbers declined by 80 to 90 percent over the course of the
colonial period, falling from hundreds of thousands to tens of thousands.
Meanwhile, European populations rapidly increased from approximately
70,000 in 1660 to about 1,270,000 in 1760. The displacement of Native
Americans had not only a numerical but also a geographical component.
Only a minority of the surviving Indians continued to reside in the core
areas of European settlement. Most lived in the backcountry or behind a
porous and rapidly shifting frontier.
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Spread out in their vast American possessions and surrounded by large
numbers of indigenous peoples, the Spanish did not want to drive their
pool of laborers and potential converts beyond a frontier. Nor could they.
There were Indian nations beyond the effective reach of Spanish power
in the Americas, and in that sense, there was a frontier. But within the
sprawling territory under Spanish control the colonists did not think that
frontiers demarcated densely settled colonial areas from autonomous or
semi-autonomous Indian areas, as in English North America. Spaniards
and creoles instead expected native peoples to participate, if reluctantly, in
the new colonial society.
As a result, powerful social and political forces encouraged Indians
to learn to manipulate the settlers’ legal system and helped introduce
increasing knowledge of the colonists’ law into indigenous communities.
The Spanish empire replaced the upper reaches of the old native political
and administrative hierarchies, reorganized Indian towns, and used
legal institutions to mediate the colonists’ demands for land, tribute, and
labor. Although claiming to respect “good and just” indigenous customs,
Spaniards reserved the right to decide which customs should be upheld and
used this power to Hispanicize Indian customary law. In part to safeguard
Indians out of a sense of paternalistic responsibility, and in part to prevent
over-intensive exploitation by local settlers from interfering with more
sustainable exploitation by provincial and metropolitan elites, the Crown
set up institutions to protect the legal rights of native peoples. Viceroys
in New Spain and in Peru created special tribunals, employing simplified
procedures, to hear cases brought by Indians. They commissioned the fiscal
[Crown attorney] of the audiencia or the protector de indios to provide representation
in court to Indians and, in the process, teach principles of Spanish law.
Within two generations after the Spanish conquests, native communities
became adept and aggressive litigators over such matters as land ownership
and boundaries, labor and tribute obligations, water and grazing rights, and
succession to chieftanships. They challenged decisions of local officials by
appealing to higher reaches of the bureaucracy. Although they resorted less
frequently to the colonists’ law for resolving disputes within a community,
they did engage in repeated litigation against Spanish settlers, officials,
and other Indians groups. In the process, the Castilian laws, procedures,
and terminology used in the colonists’ courts and bureaucracy seeped into
native communities. The oversight of these communities by the alcaldes
mayores and corregidores only increased the importance of Castilian law. By
the beginning of the seventeenth century, native peoples were far along in
fusing their traditional customs with elements of the colonists’ law.
The situation in Spanish America highlights how seldom the English
tried, for all their use of law to tilt political and economic interactions in
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128 Richard J. Ross
their own favor, to reorder the legal folkways of indigenous peoples as an
end in itself. The English typically did not encourage Native Americans to
adopt the colonists’ laws in their internal affairs or to submit intracommunal
disputes to the settlers’ tribunals. (The “praying towns” of Massachusetts,
like other selected Indian groups embedded in the colonists’ territory, were
an exception to this generalization.) England’s relative lack of interest in
the legal transactions of Native Americans in the backcountry and on the
frontier was possible because, unlike the Spanish, they did not expect most
Indians to be enveloped within their empire under their paternalistic supervision.
Whereas the Spanish empire styled indigenous peoples as vassals
of the Crown whose “good and just” customs should be applied by the
colonists’ courts in intracommunal cases, the English considered Indians as
foreigners, absent an affirmative act that changed their status. The English
did not have a serious commitment to “civilizing” Native Americans by
reordering their legal systems. Perhaps most important, although English
settlers wanted Indian land, they did not live off the Native Americans’
labor and tribute.
The implications of all these differences from Spanish America were
significant. By Spanish standards, England had little incentive to project
metropolitan law into Native American communities or oversee how its
colonists’ legal systems dealt with Indians. In English America, the legal
system did not address in any detail the extraction of labor and tribute from
indigenous peoples or coordinate large-scale economic enterprises (such as
the mining and shipment of South American bullion) that drew on Indians
from numerous local jurisdictions. The legal system did not oversee
the “anglicization” of the Indians’ legal folkways or protect them from
heedless exploitation by local elites. As a result, one does not find institutions
and offices along the lines of the General Indian Court of New
Spain or the protector de indios. One does not see the empire purposefully disseminating
English law to indigenous peoples. Unless colonists recklessly
provoked Indian wars, the English empire saw little reason to intervene
as colonists set the terms on which their legal systems regulated, or left
alone, Native Americans. The scant presence of the metropolis in this critical
area helped preserve diversity and local control in the colonies’ legal
systems.
Variation in Legal Communications Channels
From the mid-sixteenth century onward, the same group of royally authorized
institutions were established throughout the Spanish empire’s core
regions of New Spain and Peru – viceroy or governor, audiencia, corregidores
or acaldes mayores, cabildos, the fiscal administration, and the residencia and
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visita procedures.17 The British North American settlements lived under a
much more diverse set of governing institutions. The leading agencies of
the English empire – 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.
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130 Richard J. Ross
statutes under review by the Privy Council, influenced Parliamentary legislation,
passed along and interpreted documents, and forwarded (or delayed
and undermined) colonial petitions and grievances. Assemblies in proprietary
and royal colonies struggled with governors imposed from outside
to make the agent their spokesman in London. Royal governors and
their Councils wrestled with assemblies over the appointment and funding
of agents and over control of communications to them. Royal governors
and assemblies sometimes maintained separate agents or obstructed
each other to the point where none could be appointed at all. Disputes
over agents became even more pronounced in proprietary colonies because
the people had no other reliable way to go “over the head” of the proprietor
and bring grievances before the Crown. More vigorously than royal
governors, proprietors opposed the selection of an agent they could not
control. In corporate colonies, in contrast, the agent did not become an
object of conflict. Governors were elected; hence constitutional tension
between prerogative (or proprietary) executives and popular legislatures was
lacking.
The type of colony that an agent represented and its changing internal
balance of power determined his London agenda, for agents favored the
views of those who selected, paid, and instructed them. An agent would
attempt to reconcile the perspectives of differing power centers or find
himself serving alongside competitors dispatched to discredit him. The
colonial agent, then, did not reliably play a single role – he was not necessarily
an ally of imperial administrators and royal governors, or a mouthpiece for
the Assembly, or a guide to and mediator among the divergent factions
of his colony, or the representative of a stable set of economic interests
or ideological commitments. He could play one or several of these roles,
his successor might play others, and the agents of neighboring colonies
might play still others. Imperial administrators knew that agents’ objectives
shaped their management and coloring of information. But the differing,
changeable allegiances of the agents made them an unpredictable vehicle
for legal communications.
The ability of the English government to shape colonial law through
governors’ instructions also varied by type of colony. The Board of Trade
used instructions to set forth its understanding of proper judicial organization,
legislative procedure, and executive prerogatives. It dispatched these
documents to newly appointed governors of royal colonies and updated
them from time to time. Unlike royal colonies, however, proprietary and
corporate colonies did not receive instructions as a matter of course. On
occasion the English government included proprietary and royal colonies
in circular instructions sent out to all American settlements. Sometimes
the Privy Council dictated instructions to proprietors for transmission to
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their governors. Overall, though, proprietary and corporate colonies did not
receive anything like the quantity and scope of instructions dispatched to
royal colonies.
The distinction among royal, proprietary, and chartered colonies only
begins to suggest the degree of variation in legal communications channels
running between London and America, for the labels obscure differences
among colonies in each group. Consider the two corporate colonies, Connecticut
and Rhode Island. Connecticut’s political culture disapproved of
appeals to the Privy Council and few occurred. Neighboring Rhode Island,
in contrast, favored appeals. As a corporate colony, Rhode Island was not
bound by Privy Council instructions to royal governors to prevent appeals in
cases involving less than, typically, £300. However, its legislation lowered
the minimum amount required in controversy to £150, which encouraged
its settlers to send more common law appeals to the Council than any other
jurisdiction.
Peculiar features of charters introduced further variability into Privy
Council review of legislation and appeals. Though the Pennsylvania charter
required submission of legislation to the Privy Council, it gave the colony
the unusually long period of five years in which to comply, which for a while
enabled the legislature to pass limited-term ordinances and then repeal them
before their disallowance. The charter also provided that a Pennsylvania
statute would be valid unless the Council rejected it within six months
of receipt (which made inertia and disorganization an ally of the colony).
Massachusetts’s 1691 charter also promised confirmation of statutes unless
the Privy Council disallowed them, in this case within three years rather
than six months. Both charters limited the Council’s ability to let submitted
ordinances “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
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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
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or creoles educated in civil and/or canon law in a university) made up the
corps of audiencia judges and Crown attorneys (fiscales) and supplied most
of the deputies to corregidores. They also served as legal advisors (asesores) to
governors, municipalities, local courts, and state-sanctioned monopolies.
Along with laymen, letrados acted as corregidores, alcaldes, and councilman in
town cabildos. They performed residencias and visitas and clustered around
the audiencia as advocates. Although laymen ran most of the ground-level
administrative and judicial systems, letrados heard appeals, guided lower
tribunals and officials, and made major policy decisions in the bureaucracy.
The power and prevalence of letrados at all levels of Spain’s extensive imperial
bureaucracy in the NewWorld only emphasize how small a role trained
lawyers played in governing the British North American colonies.18
What were the implications of the lack of trained lawyers for English
efforts to project metropolitan legal understandings in the colonies? It is not
clear that the multiplication of trained lawyers in American judicial and
administrative institutions would have facilitated better imperial supervision
of the colonial legal systems. Lawyers in the colonies sought less to
help the empire than to help themselves.With few patronage appointments
offered by London and the royal governors, lawyers turned to elective politics
to get ahead. Most allied themselves with popular, anti-prerogative
movements. Trained lawyers attended to the interests of the landowners,
merchants, and planters who employed them, advancing or redirecting and
undermining imperial policies as their clients’ needs arose.We should note
that Spain’s American letrados could also prove less than dependable in the
pursuit of imperial goals. Even those employed in the extensive imperial
bureaucracy, reliant on the Crown for position and advancement, proved
adept at deflecting or ignoring Castilian laws and royal orders in the service
of personal or local interests.
From the perspective of a history of legal communications, the central
consequence of the English colonies’ overwhelming use of laymen in the government
and judiciary may not have been a heightened propensity to disobey
metropolitan directives so much as a reduced ability to see the background,
context, and implications of the legal documents so critical to imperial
regulation.We have seen that England transmitted expectations and goals
to the colonies in a variety of forms, not least through legal documents. The
concepts on which the constitutional relationship between England and the
colonies was founded – for instance, the distinction between “conquered”
18 The size and political influence of the colonial legal profession began to grow in the
second quarter of the eighteenth century and accelerated in the third quarter. Even so,
the vast majority of administrative and judicial posts remained in the hands of laymen
on the eve of the American Revolution.
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134 Richard J. Ross
and “settled” colonies – 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
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of metropolitan expectations. Nor, in any case, did the Council give any
systematic attention to dissemination of its rulings. Orders were issued
verbally or in sketchy written form supplemented and explained orally. Few
were printed. Some circulated in manuscripts of uncertain distribution.
Most spread by word of mouth in distorted and incomplete retellings.
English government officials, let alone colonists, had trouble discovering
what the Council had resolved and even greater trouble learning why.
The haphazard dissemination of Council rulings provides an example of
two larger phenomena: (1) reliance on scribal and oral dissemination of law
and (2) the importance of written or verbal interpretations (or “framings”)
that accompanied legal narratives and texts as they moved from place to
place. Parliamentary and colonial statutes apart, only a tiny fraction of the
laws and judicial and administrative decisions that governed public life
were available in print. Most legal information circulated through handwritten
manuscripts, whether traveling across the Atlantic (Privy Council
rulings, governors’ instructions, customs service interpretations) or within a
colony (governor, Privy Council, and court decisions; responses to petitions;
directions for local officials). Unlike printed materials, manuscripts were
neither standardized nor generally available to the public. When the holder
of the manuscript circulated it, he had to decide whether to send it verbatim,
edit it, or combine it with other texts. He could add material that
explained, undermined, or reinterpreted the main document. At each link
in the circulatory chain, brokers of legal information could also add verbal
commentary that “framed” a manuscript (or printed document) with views
of its meaning.
A broker had to decide not only what to send but also to whom. He might
routinely transmit documents to recipients selected because of their office
(for instance, the secretary of a colonial assembly would routinely dispatch
session laws to county clerks). Alternatively, he might distribute an edited
and framed document only when politically or socially advantageous. He
would consider the consequences of providing a given audience accounts
of the Privy Council’s rulings, or portions of the governor’s instructions, or
recent interpretations of the customs regulations. In turn, recipients would
decide whether to circulate the document they received, to whom, and with
what inclusions, exclusions, and changes.
Political calculations and personal sympathies influenced not only the
dissemination but also the storage of legal information and governmental
records. Officeholders sometimes denied their political and social rivals
access to records. Given the incomplete separation of governmental and
personal roles, officials tended to mix state and private papers. On retirement,
they might take home public documents, compromising the institutional
memory available to their successors. The English administrator
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136 Richard J. Ross
most experienced in colonial affairs at the turn of the eighteenth century,
William Blathwayt, removed much of his vast correspondence with colonial
governors and deputy auditors after leaving office. Only slowly did officials
come to think of official papers as a possession of the government to be
housed in state repositories, rather than a form of private property. This
transformation was underway during the eighteenth century, but incomplete.
Throughout the colonial period, the preservation of legal knowledge,
like its transmission, remained highly personal, unreliable, and politicized
in British North America.
And not only there. Spanish and French America were only too familiar
with the untrustworthy storage of legal information, self-interested brokers,
and the haphazard dissemination of law through scribal or verbal chains of
transmission. In light of these common limitations and inconsistencies in
state administrative structures, social networks created by bonds of family,
friendship, loyalty, common origin, and interest played a critical role in
disseminating law.
Information moved readily between administrative and social pathways.
An interpretation of export regulations sent from the English Treasury to a
customs collector in New York passed through the empire’s administrative
system. But when the collector sent copies of the document to a lawyer who
represented him in land speculations, to his merchant cousin in Albany, to
a friend from church, and to an assembly representative sympathetic to the
prerogative party, dissemination instead began to follow social networks.
It is tempting to observe that administrative structures and social networks
fused at multiple points, but the observation would be misleading,
in that it implies that they were otherwise separate. In fact, structures and
networks were mutually constitutive. Early modern states expected and
required social elites to assume governmental positions, not least to draw
on those elites’ formidable authority with neighbors, clients, and dependents.
Officeholders competed for the favor of patrons whose approval won
them desirable posts and promotions. Successful administrators discussed
policy choices with the social and economic leaders of the community and
cultivated their support. These interactions encouraged levels of compliance
that could seldom be bought or forced, given the limited financial and
military resources of early modern states.
The tight integration of administration and society encouraged officeholders
to communicate law through social networks. They needed to
describe local legal cultures to distant patrons and, conversely, explain
metropolitan legal expectations to community notables. Officeholders also
needed to inform allies about legal interpretations and disputes in order
to prevail in the endemic factional disputes that spread from society into
government (as a result of the weak separation of official role from social
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position). Additionally, local clergy, military officers, university scholars,
and nearby gentlemen expected to be apprised of legal developments. Their
social status made them the natural rulers of society no less than government
officials. Political effectiveness and even continuation in office thus
depended on dexterity in brokering information.
The centrality of scribal and verbal (as compared to print) media only
reinforced the critical importance of social networks in shaping the patterns
of legal transmission. The recipient of a manuscript either asked for it or
held a place on the owner’s distribution list. Dissemination of law through
personal discussions, and verbal framings of manuscripts and printed documents,
occurred in face-to-face interactions. Colonial governments promulgated
statutes and proclamations through announcements at court day and
fairs; and one could purchase manuscript copies of records, such as charters,
statutes, and judicial rulings. But aside from state commands and a limited
class of public records, colonists could not obtain legal information as of
right or by the payment of a fee. Most knowledge about law moved through
the possessor’s networks according to the dictates of social obligation and
political calculation.
Social networks transmitted far more than the formal materials of Anglo-
American law, such as Privy Council Orders, court decisions, and parsings
of customs regulations. They also transmitted the mores and dispositions
that make up a legal culture: for example, commitments to particular types
of dispute resolution, presuppositions about the nature and sources of justice
and good government, opinions about imperial superintendence, and
favored styles of interpreting legal materials. Schoolmasters and college
tutors taught those under their charge how natural law constrained the
state’s positive law. Recently arrived Inns of Court barristers told their
American business and political contacts what English statesmen thought
the Glorious Revolution settlement meant for the colonies. Assembly representatives
returning to their towns confided to their allies the compromises
and limitations of newly passed legislation. Merchants recounted their
London brokers’ opinions about the Privy Council’s agenda for colonial governance.
Ministers advised their co-religionists about how to arrange their
affairs to avoid ungodly secular courts.
The importance of social networks to legal communications, broadly
construed, helped preserve local control and diversity in the colonial legal
systems. Metropolitan legal understandings could spread through colonial
social networks only after they were introduced in some fashion. The
English empire, compared to the Spanish, maintained fewer points of contact
from which diffusion could begin. Consider, first, the connections created
by the institutions of imperial governance. As we have seen, the Spanish
empire developed a multiplicity of alternative communications links that
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138 Richard J. Ross
penetrated deep into the colonial governing structure and society. England
maintained few points of contact outside the elites at the top of the legal
and political hierarchies and beyond the colonial capitals and port cities. It
lacked a robust inland bureaucracy.19
Metropolitan legal understandings could spread to colonial social networks
not only through imperial governing structures but also through
other institutions, such as universities and churches. Spanish colonists
rapidly built universities in the Americas. Six were founded in the first
fifty years of their empire and twenty-three by the middle of the eighteenth
century. Many of the Spanish American universities established chairs of
law and oversaw the study of Roman canon ius commune and of natural law
(also offered in the arts curriculum). During the sixteenth and seventeenth
centuries, the universities did not formally teach royal law. Their program
of ius commune and natural law served metropolitan purposes obliquely by
bringing a measure of unity to the legal culture of Spanish America and by
providing a counterweight to local diversity in lawmaking. By the early to
middle eighteenth century, universities began teaching royal law directly.
They added chairs in that subject under the encouragement of the Council
of the Indies. Knowledge of Roman, canon, natural, and royal law spread
beyond the universities’ students to the lettered segment of society, particularly
those linked to the government bureaucracy and judiciary. By contrast,
none of the handful of colleges in the English colonies offered a directed
course of readings in law. Nor did they maintain chairs of law. Settlers
who desired to learn law in an educational institution (rather than through
apprenticeship) traveled to the Inns of Court in London. Compared to the
number of Spanish America colonists exposed to Roman, canon, natural,
and royal law in New World universities or through diffusion from those
educational centers, they were few in number.
Churches and clergy could also introduce metropolitan legal understandings
into colonial social networks. Unlike the pluralistic and frequently
contrarian British North American denominations, the Spanish American
church devoted itself to upholding the Crown’s political and legal authority.
Special papal dispensations gave the Spanish king more extensive supervisory
powers over the church in America than any monarch enjoyed over the
church in his European territories. Under the system of Patronato Real, the
Crown nominated archbishops, bishops, and abbots directly and other clergy
indirectly and controlled ecclesiastical revenues and governance. Catholic
clergy dependent on the Crown for their positions and funding taught principles
of law and constitutionalism through sermons, private instruction,
19 I owe the phrase “inland bureaucracy” to a conversation with Prof. Charlotte Crane.
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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
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140 Richard J. Ross
occurred within a theoretically integrated organization committed to the
support of the Crown’s government.20 A parish in Peru and another in the
valley of Mexico might disagree somewhat about the principles of justice
and government. But how much more would opinions about justice and
proper government differ between a Puritan gathered church and a Virginia
Anglican parish, between a Sephardic Jewish congregation and a Philadelphia
Quaker meetinghouse, between a German Pietist pastor and a Catholic
priest in Maryland or a Dutch Reformed minister and a Baptist itinerant
preacher? One need not claim that the Spanish American church aimed
at or achieved a single, cohesive body of religious and legal principles to
acknowledge that the variation among its constituent parishes, missions,
and priests was less than among the strikingly diverse churches and clergy
of British North America. The pluralistic theology, denominational structure,
and ethnic foundations of the British colonial churches made them
unreliable conduits for introducing metropolitan legal understandings into
colonial social networks. In contrast to the Spanish American church, they
stood outside the imperial apparatus, spreading inconsistent messages about
jurisprudence, constitutionalism, and the proper relationship of colonies to
the metropolis.
Considered together, the churches, universities, and royal bureaucracies
offered the Spanish empire multiple and widely dispersed points of contact
for introducing metropolitan legal understandings into colonial social networks.
Each neglectful and self-interested social network decided how to
reshape and explain what it chose to circulate. But the diversity of overlapping
transmission routes reduced the power of each network to bury
or alter beyond recovery the Crown’s messages and outlook. How much
less was this true in British North America. The churches and sects were
unreliable allies of the empire. The handful of colleges played a far smaller
role in disseminating law than their more numerous Spanish American
counterparts. The English imperial administrative system maintained few
points of contract outside the port cities and the elites who headed legal
and political hierarchies.
The relative scarcity of points of contact gave local notables and social
networks in British North America considerable power to influence the dissemination
of metropolitan legal understandings. A small group of imperial
appointees concentrated in colonial capitals and major ports (about twenty
officials in a royal colony, fewer in a corporate or proprietary colony) spread
and endorsed metropolitan legal understandings as a matter of duty. Most
20My emphasis here is on the political, social, and legal teachings of the Spanish American
church. Parishioners, of course, interpreted those teachings in diverse ways, as the studies
of indigenous peoples’ “syncretic” religion have emphasized.
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brokers of legal information did not. Assembly representatives, justices of
the peace and sheriffs, vestries, merchants, clergy, lawyers of various degrees
of training and professionalism, gentlemen who dominated their counties
– these brokers, motivated by their interests and ideological commitments,
screened or transformed metropolitan legal understandings while circulating
them through social networks. If local brokers and networks were disinclined
to cooperate, the English empire encountered real practical difficulty
in projecting imperial versions of law. More often than not, metropolitan
legal understandings reached colonists in fractured and competing forms.
They did not enjoy the widespread presence and the perceived solidity
and certainty that legitimates unfamiliar or unpalatable law. The empire’s
dependence on self-interested and unreliable colonial brokers and social
networks helped preserve a measure of local control and diversity in the
colonial legal systems.
CONCLUSION: AN “INDIVIDUALIZING” COMPARISON
My purpose in comparing English and Spanish America is not to assess their
relative degree of obedience to royal directives or the relative degree of local
control and diversity on the ground. To emphasize the many ways in which
Spain created more varied and extensive means for legal communications
with its American empire than England should not, in other words, be taken
to mean that New Spain and Peru were more obedient to metropolitan
directives than the British North American colonies. Indeed, historians
of colonial Spanish America have long pondered why an empire with so
elaborate a governing bureaucracy encountered such difficulty in getting
NewWorld officeholders and local elites to follow Crown policies.
Instead, I have used Spanish America as a contrast case. It sets up what
Charles Tilly has called an “individualizing comparison,” where one case
brings out the distinctive and peculiar elements of the other. Contrasting
the two NewWorld empires highlights important features of legal communications
in British North America whose existence or significance would
not be apparent if examined in isolation.
This approach can shed light on early American politics and society as
well as law. Historians have long wondered to what extent, and why, the
colonies preserved a measure of local control and diversity despite oversight
by the English empire and pressures to assimilate. One strand of scholarship
has explored the foundations for resistance to overreaching prerogative
and unwelcome imperial programs. Its themes are familiar. The growing
authority of assemblies constrained the influence of royal governors and
imperial administrators short on patronage and coercive power. Colonial
notables (not metropolitan officials) staffed almost all administrative and
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142 Richard J. Ross
judicial bodies, which could not function without active participation from
local communities. Colonists valorized English freedoms and customary
and consensual notions of authority while cultivating intense suspicions of
prerogative (even when they were benefiting from it). The English empire’s
political divisions and modest fiscal, military, and administrative capacities
inclined it to negotiate with colonial elites, rather than vigorously confront
resistance.
Another strand of scholarship depicts pressures toward integration into
the English empire. The first two generations of the imperial school charted
the growth of the empire’s administrative structures, and their successors
explored the social and political developments that this apparatus inspired,
from the elaboration of an Anglo-American patronage system to the mobilization
of interest groups. Students of anglicization have noted the growing
resemblance of the colonies’ elite culture, legal and military structures, and
consumption patterns to those of the metropolis, and their formation of a
deeper, more self-conscious English identity. Recent studies of early American
communications emphasize how improvements in the diffusion of information
helped integrate the English Atlantic politically and culturally.
Both strands of scholarship capture essential features of colonial life. Historians
have labored to bring the two together and explain their interaction.
This study of the double nature of Anglo-American legal communications
introduces another way to bridge them. At first glance, one sees the importance
of legal communications in the administrative, political, and judicial
structures of the empire. Imperial school historians a century ago began the
exploration of this theme. Comparison with Spanish America provides a new
perspective and reveals the particularities, omissions, and limitations that
made Anglo-American communications practices anything but a reliable
agent of imperial centralization. The Spanish American experience brings
into sharper focus the English empire’s preference for regulating governing
structures, rather than assuring individual justice, and the colonists’ ability
to withhold legal information for strategic advantage. It underscores
the trans-Atlantic (rather than intracontinental) orientation of the English
empire’s variegated (rather than uniform) legal communications channels
and the relative scarcity of points for inserting metropolitan legal understandings
in colonial social networks. And it suggests the implications of
the colonists’ reliance on lay (rather than legally trained) judges and administrators
and the English empire’s relative disinterest in the internal legal
affairs of Native Americans. These are different types of observations. Some
are about social and political strategies; others about institutional design,
staffing, and priorities; and still others about the cumulative patterns of
information exchange. Collectively, however, they reinforce one another.
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Legal Communications and Imperial Governance 143
Where the imperial school and its successors emphasized the centrality
of legal communications in building an administrative apparatus and
tying together the English empire politically and intellectually, the Spanish
comparison brings out how and why these developments were incomplete
and uneven. In particular, the study of communications reveals how
decisively local notables and social networks controlled the dissemination
of legal knowledge and commands. Scholars have long observed that the
large degree of local control of legal institutions significantly influenced
the shape of colonial politics and the Revolutionary movement. Yet, as we
have seen, local notables exercised substantial control over the means of
communication as well as the means of administration. They influenced which
audiences would know what about imperial directives and about the legal
heritage that supposedly united colonies and metropolis. They shaped the
meaning of the shared heritage and of imperial directives in the process
of disseminating them. Understanding the dynamics of Anglo-American
legal communications (as well as legal administration) helps explain the
persistence of a significant measure of local control and diversity in the
colonial legal systems amid pressures toward integration into the English
empire in the eighteenth century.
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5
regionalism in early american law
david thomas konig
Early Americans created regionally particular legal systems. Two centuries
of nationhood have since brought a great measure of uniformity in certain
areas of American law – 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
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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
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146 David Thomas Konig
from those of other mainland colonies. This was especially true of their law
courts. The main business of courts was the protection of life and property,
which rarely brought them into contact with courts in other colonies. Trade
took people beyond the borders of their own colony, but most commonly
brought them into contact not with fellow North Americans but with
merchants doing business out of London or Glasgow, or perhaps the West
Indies. The broad expanses of ocean seemed to stand as the real borders of
legal cultures. When Parliament in the mid-eighteenth century began to
impose more uniform legal rules in North America, therefore, Americans
saw the contest as between two political and legal cultures – 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
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Regionalism in Early American Law 147
purity of a mythic Saxon past to extol a purer, simpler American system of
law. Excusing the general American colonial practice of granting fee-simple
tenures to land as “an error in the nature of our landholdings, which crept
in at a very early period of our settlement,” for example, he contrasted the
allodial tenures of his Saxon ancestors to the feudal and “fictitious principle
that all lands belong originally to the king.” In so arguing, he laid a basis for
perpetuating the idea that the legally inexpert “farmers, not lawyers,” who
colonized North America had been incapable of duplicating the technical
niceties and fictions of English law and that a generalized rustic simplification
guided early American law and reduced it to its common elements.1
Out of that process emerged a shared foundation of truly American law, rid
of its English corruptions and based on the universal “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.
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148 David Thomas Konig
problem of defining legal relationships between and among the newly independent
states. Constitutional relations are, fundamentally, matters of competing
sovereignties: as the sovereignty of King-in-Parliament was about
to end in 1781 Jefferson revealed his own ambivalent identity, simultaneously
“[a]s an American, as a Virginian.”4 Many times he had used the term
“country” to describe both Virginia and the United States, but what seemed
to augur a consolidation of law under the federal government drove him
and others to emphasize the singularity of their own states’ laws and legal
systems. “Before the Revolution,” he wrote to his future attorney-general,
Edmund Randolph, “the nation of Virginia had, by the organs they then
thought proper to constitute, established a system of laws. . . . ” By contrast,
he continued, “[b]efore the Revolution there existed no such nation as the
United States,” and thus no common legal system.5
Replacing the simplified natural uniformity of the first settlements with
the more highly developed particularism of American state law, Jefferson
joined a chorus of politicians and jurisprudents who acknowledged the distinctiveness
– 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.
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Regionalism in Early American Law 149
gain pride of place as defining American identity.With the successful ouster
of the imperial power against which all the colonies could unite in common
cause and common identity, Ayers and Onuf point out, the “awareness of
other regions in a competitive political context” finally led Americans to
acknowledge – 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
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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
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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.
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152 David Thomas Konig
Star Chamber procedures reflected the impulse to escape the rigidity of
the common law, and such departures – 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
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Regionalism in Early American Law 153
conducting its activities in the home of the chancellor or bringing justice
to the provinces by delegating to rural gentry the authority to try causes on
commission outside of London. It allowed pleadings in English and offered
relief in the form of direct in personam orders, such as compelling the production
of a deed or enforcing an oral contract. Out of Chancery grew another
court, the Court of Requests, originally established to provide justice for
the poor and serving as a sort of small claims court. Its subsequent use
by substantial parties who exploited its procedural simplicity should not
obscure its origins nor the template of legal development that it and other
courts would provide for English subjects beyond the seas.
Not all English suitors appreciated Chancery, and like many other courts
and legal practices it was the target of legal reformers, especially Puritans
and radicals, who saw it as an agent of prerogative power and an obstacle
to further reformation. Chancery, for example, was so slow that one critic
in the 1650s estimated that causes there averaged twenty-three years to
complete. John Selden called equity “a roguish thing,” an arbitrary system
that followed the “uncertain measure” of the chancellor’s personal sense of
justice, “as if they should make the standard for the measure we call a ‘foot’
a Chancellor’s foot.” So, too, the ecclesiastical Court of High Commission,
created in the sixteenth century to punish religious heterodoxy, was not
bound by common law rules and provoked loud opposition when the Stuarts
vastly expanded its jurisdiction to persecute Puritans.
But the common law, though it had many champions, also had its critics.
It, too, was used to punish religious nonconformists. In civil matters the
central courts of common law atWestminster could frustrate justice. Often
painfully slow, the common law, with its mystification, technicality, and
great expense, provoked widespread calls for its wholesale overhaul and simplification.
The turn to the law accentuated the need “to bring justice home
to every man’s door” with less technical and less expensive pleading, and led
to calls for compiling laws into “the bigness of a pocket book.” Reformers
assailed pleadings in Law French – 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
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154 David Thomas Konig
early modern England. It served too many masters to allow any particular
attempt to impose conformity to succeed – 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.
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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.
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156 David Thomas Konig
between generations. English local governance depended on a small army
of lay officials and personnel to staff its courts and execute the commands
and protections of the law. It needed viewers of fences and roads, wardens to
report nuisance violations of many sorts, and reeves and constables to impose
order. Churchwardens bore the responsibility to watch and censor moral
offenses, an area into which community intervention became increasingly
important with the rise of Puritanism.
Manorial bylaws conferred the legitimacy of collective agreement, but so,
too, did the actual enforcement of rules and the resolution of conflict succeed
best when decisions and orders were made by groups acting collectively.
To mobilize this authority, the English legal system constituted a wide
variety of institutionalized community norms. Most prominent of these
was the jury, a body of laymen assembled to assist the court on factual
questions. The use of lay groups of residents familiar with local matters
reached far back into pre-Conquest England, and their durability attested
to the importance of local norms and a community of awareness. Jurors
were not judges; their role was to assist the court in determining matters of
fact, and courts depended on their knowledge of the parties and witnesses
to assess credibility and to consider reputation and the general beliefs of
the community in making decisions. In criminal matters, especially where
itinerant justices handled serious felonies, the personal knowledge of petit
jurors was indispensable to legitimizing justice as meted out. They might
be called on to inquire about a death to assist the coroner or to inquire into
so mundane a matter as the adequacy of fences or the proper width of a sow’s
yoke. So valuable was the voice of the community that specialized jury-like
bodies were entrusted with factual inquiries unrelated to judicial matters,
such as taxation, where their knowledge of a neighbor’s wealth provided
a court with information necessary to assess a rate. Three thousand miles
from England, distant from the crown and required to settle the questions
that Blackstone referred to when he wrote of questions on which the laws
of England were “uncertain, and perhaps indifferent,” these men would not
only wield their authority and articulate local norms as jurors but they
would also do so as judges and legislators.
III. REGIONALISM AND LEGAL DIFFERENTIATION IN THE
TRANSIT OF LAW TO NORTH AMERICA
The historical moment of English colonization in an age of legal response
to crisis mixed these contingencies of context and timing with the determinisms
of regionally different colonial impulses and circumstances to
produce enduring regional patterns of consciousness and behavior. The historic
legal template of localism, creative institution building, and reformist
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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.
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158 David Thomas Konig
In neither colony were ecclesiastical courts established, though for different
reasons: a lack of Anglican clergy in Virginia and a Puritan hostility
to church courts in Massachusetts. The same reasons forced changes in the
way marriages were solemnized: a lack of clergy in Virginia and a Puritan
theological insistence on civil ceremony. Though the colonists might escape
the bishop and his courts, they could not escape death, and both colonies
vested probate authority– 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
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land transactions but also record the earmarks of their cattle or the terms
of a bill of obligation.
The justices of the peace who controlled the colonial county courts were,
like those who conducted quarter sessions in England, the men of affairs
of the county. Lacking the social differentiation and long-established institutions
that had made English local justice a patchwork of competing and
parallel jurisdictions, the colonists had little choice but to concentrate control
in institutions and in persons who could command respect. But as the
products of the colonization process that had created them, the county elites
of Virginia and New England embodied the differences behind the impulses
and circumstances of the two colonies. In Virginia this elite emerged from
the competitive race to control the tobacco boom. They were “winners in
the servant sweepstakes” that ousted those chosen by the Company and successfully
exploited those whose labor produced the wealth that supported
the new planter aristocracy, and they guided legal affairs toward protecting
their regime of acquisitive individualism. At Massachusetts Bay, the
ruling elite was an imported phenomenon: the earliest colonization of the
“Great Migration” resembled more a series of group migrations than a trek
of individuals, and the distinctive coherence of the Puritan utopian vision
preserved an acknowledgment of authority in the “godly.” That vision also
carried with it a distrust of human authority, following the Calvinist fear
of “what desperate deceit and wickednesse there is in the hearts of men.”
For that reason, “well ordered liberty” meant “well-balanced authority in
the magistrates” and further “that all power that is on earth be limited,
Church-power or other.” Before the founding generation died, they had
devised a “Body of Libertyes” and then a frame of “Lawes and Libertyes”
that specified limits on government as well as on personal behavior. They
provided clear procedures to be followed in court, for example, and reduced
England’s list of more than 100 capital offenses to 15.
The pattern of rule by a hierarchy of status and wealth continued in both
colonies, with power concentrated in a manner “which all men respect,”
remarked John Adams about Massachusetts, “and all men deride.” Adams’s
comment reflected another colonial reality, one that reproduced an English
reality in local courtrooms of both Massachusetts and Virginia: namely,
that the practical needs of governance meant that local oligarchs had to
share control with lesser men of the middling sort. If the county elites
did not govern unchallenged, neither did they govern unassisted. In that
respect activity at Virginia’s county courthouses differed little from those in
Massachusetts, where, as Adams noted of his own experience, “the practice
of Law was grasped into the hands of Deputy Sheriffs, Pettyfoggers, and
Even Constables, who filled all the Writts upon Bonds, promissory notes
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160 David Thomas Konig
and accounts, received the Fees established for Lawyers and stirred up many
unnecessary Suits.”10
Wide participation in legal institutions was exceeded by an even wider
participation in the market for land and other property in which emerging
legal practices expressed local goals. The broad distribution of freehold
meant that a much larger segment of the population enjoyed the advantages
of property ownership. Colonists were thus able to buy, sell, mortgage, or
rent their land much more freely than any generation of Englishmen could
remember, but with that liberation of property came a greater need to secure
it. Participation in a market economy brought with its advantages the risks
not only of loss but also of fraud or otherwise unrecoverable obligations. John
Locke was surely correct when he wrote that “in the beginning all theWorld
was America” in its abundance of property unprotected by government,
but once America became an English property-holding society it became
necessary to provide for “the preservation of their property,” and it was through
the creative and synergistic reconstituting of English legal arrangements
that they accomplished this objective. Laws that seem the sudden product
of immediate action, wrote Sir Matthew Hale, actually reflect a process he
observed in his study of English law; namely, that of “time, which as it
discovers day after day Inconveniences, so it doth successively apply new
Remedies; and indeed it is a kind of aggregation of the discoveries, Results,
and applications of ages and events.”11
Ordinary but extensive dealings in property over time thus led colonists
in Virginia and Massachusetts to reach back to procedures from their experiences
at church or manor courts for the legal mechanisms needed in a new
land of property, presenting another example of Julius Goebel’s observation
that many colonial legal practices drew from “the backwaters of the
mainstream of the common law.” That these practices usually began as the
responses of erstwhile tenants transformed into cautious smallholders must
not obscure the legal knowledge behind them nor the way that intelligent
assessment and calculation of possibility move legal change. The new
bourgeoisie of landed settlers knew enough of the law to know that oral
agreements or implied promises might not suffice in court to protect their
interests. It was for this reason that a Virginia county court in 1682 prudently
advised two men to convert their “verball agrement” into a written
lease. Servants promised their freedom knew enough law, too, to insist that
10 The Diary and Autobiography of John Adams, ed. Lyman H. Butterfield (Cambridge, MA,
1962), III: 274.
11 Sir Matthew Hale, Of the Alteration Amendment or Reformation of the Lawes of England
[1665], cited by Howard Nenner, By Colour of Law. Legal Change and Constitutional
Politics in England, 1660–1689 (Chicago, 1977), 15.
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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.
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162 David Thomas Konig
economy based on its most significant “departure from the principles of the
common law . . . in the establishment of slavery; a measure not to be reconciled
either to the principles of the law of nature, nor even to the most
arbitrary establishments in the government at that period.”13
These two regionally specific patterns had formed even before England
established colonies in the territory between them, where a later and different
historical moment provided forces that would create a third legal
culture in the Middle Colonies of New York, New Jersey, Pennsylvania,
and Delaware. There, the remnants of Dutch and Swedish colonization and
a rapidly increasing flow of non-English immigrants introduced an element
of social diversity unknown to the north or south, where sharply reduced
rates of white immigration left society more homogeneous. Although the
English largely succeeded in imposing the formal legal institutions of the
common law in these new colonies, they quickly discovered that they could
not obliterate strong cultural legacies, especially skillful use of the law
and defiant attitudes toward authority. The combination of forces that had
shaped the older colonies not only continued but also gained momentum
from the economic opportunities that had led English imperialists to covet
the mid-Atlantic region and establish new colonial ventures there.
English attention had been drawn to the mid-Atlantic by the enviable
success of Dutch interlopers using the port ofNewAmsterdam as a base from
which to penetrate England’s colonial markets to the north and south. The
conquest of New Netherland (which had absorbed New Sweden) required
three wars between 1664 and 1674, but it proved easier than establishing
political control, as England’s first governors found a diverse and uncooperative
population of Dutch, Swedes, and Finns, as well as Jewish and Muslim
religious refugees welcomed by the tolerant policies of the Dutch republic.
Despite the efforts of military governors to impose autocratic rule there, the
Dutch republic’s tradition of political decentralization had left the colony
with a legacy of independent-minded local settlements unwilling to yield
to their demands. The Dutch, in fact, were a minority in their own colony,
whose population was the most diverse of any in North America and also
included a large number of Puritan emigrants from New England, who
quickly dominated Long Island and defied Dutch control.
Dutch New Netherland, like its parent country, had thrived by encouraging
trade and recognizing the contributions that a diverse population
brought to a modern market economy. When Governor Peter Stuyvesant
joined the Dutch Reformed Church’s efforts against nonconformists, the
Dutch West India Company overruled him. “Jesus Christ is good,” so it
was said, “but trade is better.” The traditional usury limit of 6 percent was
13 Ibid., 323 (slavery), 331 (parent).
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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
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164 David Thomas Konig
were known for their legal adroitness, and “were thus hardly legal primitives
when they contemplated settling the Delaware valley,” writesWilliam
Offutt; “instead, they possessed a well-considered legal agenda grounded
in both reform theory and personal experience.”
Penn’s colonial law reforms, which he introduced first in the Quaker
West Jersey settlement in 1676, would reflect this past with their many
protections of due process, leading Thomas Jefferson to call him one of the
great lawgivers of all time. Penn’s “Laws Agreed Upon In England” for
Pennsylvania required “That in all courts persons of all persuasions may
freely appear in their own way, and according to their own manner, and
there personally plead their own cause themselves, or if unable, by their
friends. . . . That all pleadings, processes, and records in courts, shall be
short, and in English, and in an ordinary and plain character, that they may
be understood, and justice speedily administered.” In practice, moreover,
juries decided law as well as fact, and judges inWest Jersey had no authority
to overturn verdicts.
By the end of the colonial period, this Quaker tradition of shrewd litigation
had produced the image of the “Philadelphia lawyer.” It also left a
powerful anti-authoritarian streak that fueled quarrelsome rivalries and suspicions,
especially among the many different ethnic groups Penn recruited
for his colony. He proudly observed that Pennsylvania was “a Collection
of divers nations in Europe: As, French, Dutch, Germans, Sweeds, Danes,
Finns, Scotch, Irish and English. . . . And which is admirable,” he added
wishfully, “they live like People of One Country. . . . ” Penn’s ideals, unfortunately,
could not erase ethnic rivalry and distrust, and diversity left the
colony beset by “scurvy quarrels that break out to the disgrace of the
province.” Quaker replacement of oaths with affirmations did not satisfy
suspicious Anglicans, who refused to honor them. Anglican court officials
met with contempt from Quakers. Quakers regarded Pennsylvania’s three
Lower Counties as a “Frenchified, Scotchified, Dutchified place,” and they
had few regrets over the counties’ decision to secede and become the separate
colony of Delaware. “Be not so governmentish,” Penn had urged his
squabbling settlers, but to little avail. Ironically, they were taking his libertarian
goals to a logical but unanticipated result. After his death, in fact,
as the Quakers became a minority in their own province, they transformed
their religious millennialism into a legalistic protectiveness of minority
status that remains one of the Middle Colonies’ most significant regional
contributions to American law.
IV. THE ACHIEVEMENT OF REGIONALISM
In 1696 the Crown and Parliament cobbled together a system of imperial
administration that they hoped would produce, among other positive
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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.
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166 David Thomas Konig
may be extremely nice.”15 With independence Americans suddenly had to
confront such variety too, in their halting efforts to create an unprecedented
federal system – 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.
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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.
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168 David Thomas Konig
Those who settled Massachusetts Bay, “[o]n the contrary,” represented a
dissenting tradition in all aspects of their life. They “fled from what they
accounted tyranny, both in church and state” and established a veritable
counterculture based on a “prejudice against the laws and government of
the parent state, which would induce a general rejection of all such as were
inimical to those principles, which prompted them to migrate.” The result
was a reformist legal culture far removed from the legal conservatism of
Virginia. “And as two strait lines, which diverge from each other at the
same point, can never after meet or become parallel, so the institutions of
two countries, founded upon such discordant principles, could never after
be assimilated to each other.”19 The rivalry between the Chesapeake and
New England was a staple of the culture of the early republic, and Tucker’s
contrasts, though perhaps overdrawn, nevertheless reflected the cultural
self-awareness of regional divergence that had driven the two apart and
produced legal cultures differing in lesser degree in the colonies located
between the two. Tucker’s observations were not merely casual ruminations,
but rather the product of careful research and inquiry, or what Ayers
and Onuf would include in their general model of “reciprocal definition”
or even mutual hostility – 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.
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Regionalism in Early American Law 169
New World by the Laudian policy that had driven them there in the first
place. Moreover, partible inheritance promoted the Puritan goal of communalism
by providing land and thus community membership within a
broadly inclusive society. By contrast,Virginians, seeking to recreate a traditional
hierarchical social order based on more concentrated land ownership,
interpreted the clause to establish primogeniture. Protecting a regime of
property holders who could jealously suppress and punish rivals, they also
“adopted in its fullest latitude” the English law of forfeiture for treason
or felony.”21 Memories of England’s recent past thus provided the earliest
colonists not only with the cautionary experiences of crisis but also
with different agendas for the type of legal regime that would further their
goals.
Those agendas shaped policy of land use and provided different instrumental
designs for law. In Virginia from the beginning, land use had an
economically instrumental purpose: the personal benefit of those individuals
who owned it. Initially, this meant those investing as stockholders in the
Virginia Company of London; with the collapse of the Company, land and
its profits became the prize for those who gained control of the colony in
Virginia. In Massachusetts land use adhered to more distributive impulses
consistent with Puritan goals of a consociational godly community. A town
was founded only after a congregation had been gathered, and all dwellings
were to be built within a half-mile of the meetinghouse. The “fathers of
the towns” were the legal proprietors of all undistributed land, and they
granted it according to the godly goals of the gathered community. This
took the form of favoring church members with larger lots and awarding
land proportionally to the existing hierarchy of wealth – 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.
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170 David Thomas Konig
Maryland courts, in fact, prosecuted only one case of fornication in the
seventeenth century.
The common pursuit of legally defined paradigms of social restoration,
therefore, embraced competing agendas. For the Virginia Company of
London, the model of the colonizing joint-stock enterprise provided a template
for efforts to use employees to wrest profits, through commercial
and extractive enterprise, from a hinterland inhabited by a hostile population
perceived to be alien and intractably savage. Replicating the model of
marchland conciliar rule, the Company provided a blueprint for exploitative
control of a local laboring population. But even before the Company
collapsed in 1624 its colonists had established their own conciliar rule
through control of the council at Jamestown and had embarked on constituting
themselves an English landed gentry governing through a legal
system suited to their acquisitive ambitions. The Company’s first councilors
employed their powers to the fullest in protecting the financial interests
of investors (including themselves), and their successors used them no less
sternly to guard their own, now individual, self-interest. Sir Thomas Gates
took literally his charge to govern “rather as a Chauncelor then as a judge”
and to appoint lesser officials with unspecified and discretionary power as he
wished. Gates made the fullest use, too, of the now infamous code known as
“Dale’s Laws,” which conferred the powers of martial law when needed. A
rival councilor was shot, allegedly for treason, and protests against Gates’s
rule were brutally punished. Though the martial code was terminated, it
had set a pattern – 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
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Regionalism in Early American Law 171
slavery there. The brutal regime of the first Virginia planters could draw
on a tradition of martial discipline to compel work and to punish with
discretion. Africans were bought and sold, treated more harshly than white
indentured servants, and held to longer terms of servitude. Explicit legal
distinctions between blacks and whites began to be made before the Civil
War, and by the Restoration slavery existed in law inVirginia and Maryland.
Within a generation, slavery would become a central feature of life in the
new Carolina colony to their south, where ´emigr´e planters from the West
Indies brought with them experiences and legal precedents of the islands,
which they amalgamated with what they found on the mainland. “Colonial
lawyers were analytically opportunistic,” writes Jonathan Bush, in creating
slave laws, adopting rules that had governed villeins, apprentices, and
indentured servants, as well as property under the common law. While
the common law for whites moved inexorably toward more freedom, the
common law principle of legal thinking in favorem libertatis was reversed
for blacks. Continental civil law also provided legitimacy for change where
needed, making descent of status follow that of the mother, thus providing
legal support to the social reality of white owners impregnating their
female slaves. Civil law principles of slavery thus survived not only in those
colonies settled by Continental kingdoms in New France and New Spain
but also in that of New Netherland, where a “half-free” status obtained,
in which slaves owned by the Dutch West India Company owed yearly
dues and a specified amount of labor to the Company but worked for other
masters and were entitled to keep part of their earnings, a relic of civil law
peculium.
Though it is easy to ignore differences between Protestant Virginia and
Roman Catholic Maryland, legal change in the Chesapeake thus moved
along parallel lines guided by the needs of a plantation society and by the
peculiar pressures placed on it. One especially notable pressure was the
frightful mortality rate brought on by the climate and environment and by
the demanding work regimen of tobacco cultivation, but aggravated by a
persistent malarial pestilence imported from the Kentish lowlands. Early
death combined with the sexual imbalance of an economy that attracted
far more men than women as emigrants to drastically alter the shape of the
family there. With sex ratios ranging from 3:1 to 6:1, it was difficult for
families to form, and with mortality rates that usually killed one spouse or
the other within seven years, Chesapeake society was one of orphans (defined
as a child with one surviving parent) and widows or widowers, in which,
Carr andWalsh have told us, “dying husbands were understandably anxious
about the welfare of their families.”
Colonists in the two Chesapeake colonies afflicted with such misery
looked to their legal systems for support. The peculiar demography of the
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172 David Thomas Konig
Chesapeake left a population of widows who could remarry more easily and
more often than widowers; on reaching the age of forty-five or beyond the
age of reproduction, moreover, they were likely to outlive their husbands.
At common law, however, widows were not the heirs of their husbands; to
a far greater extent than their brothers in England, therefore, Chesapeake
husbands often left their entire estate by will to their widows – up to 20
percent of them in Maryland by the 1660s. Other men in both colonies
named their widows as estate executors, allowing them to keep control
of family assets as long as possible. On remarriage, women sought legal
protection of the property they brought with them to their new marriages.
Although the doctrine of coverture, with its corollary of the unity of person,
had invalidated contracts made by women before or during marriage, courts
in the Chesapeake tended to honor them as expedients to assure property
to a widow. In Anglicized New York, by contrast, where such demographic
patterns did not exist, the strict application of coverture and other common
law rules reversed Dutch practices on female property holding.
Chesapeake courts took a more active role, too, in protecting the assets
of orphans. Though a widowed mother was legally the guardian of her children,
she had no authority over property bequeathed to them; they were
“orphans.” In Maryland, where half of all children in the seventeenth century
spent some part of their childhood under the care of a stepfather or
other guardian, the English bishop’s “ordinary court” served as a model
for the creation of orphans’ courts that examined and audited the arrangements
made for orphans. Other powers designed to protect orphans, initially
entrusted to the proprietor’s Prerogative Court, devolved on county courts.
In Virginia, too, the regular county courts assumed similar responsibilities.
The centrality of the family unit placed enormous pressure on the courts
of both colonies to assure its survival amid relentless destabilizing forces.
But the differing legal responses of the two regions throw into sharp relief
the emergence of two regionally different legal cultures. The utopian religious
impulse of the Puritans had made the family a cornerstone of their
new godly commonwealth, and to make it so they revolutionized domestic
relations. Though they never completely replaced the gender hierarchy of
English society, they supplemented it with one of godliness. Though the
male head of household would not be supplanted, his paternalistic control
was to be directed to providing godly attention and concern. Marriage was
to be a meeting of hearts before a meeting of hands, so went the axiom
of companionate marriage, and husbands were assumed to be caring and
protective of their wives. Where environment had produced in the Chesapeake
a range of legal protections for a wife’s individual property rights,
Puritan social philosophy rejected the individualism inherent in such property
arrangements. As a result, the Puritans saw less need to provide what
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Regionalism in Early American Law 173
they regarded as intrusive and protective legal rules that would diminish
the paternal capacity of a husband and weaken the family bond. The ironic
result of this philosophy was to entrust husbands with a much greater control
over family property and to limit legal methods that wives might use
to assure their own control over their own property. Connecticut, the most
Puritan of the colonies, provided little or no protection to married women’s
property rights until well into the eighteenth century. On questions of
female property rights, therefore, radical religious tradition refused to provide
the protections seen in Virginia and her southern neighbors. Quaker
ideals of marriage followed the Puritan tradition, for example, and Penn’s
laws retained strict rules of coverture.
Nowhere is this distinction illustrated more clearly than in the matter
of dower, the common law right of a widow to a life estate in one-third of
her late husband’s real property, and a portion of his chattels. A husband in
Virginia was barred from alienating any real property owned during marriage,
as the income from that property (or the use of a part of a home) was
assumed to serve as a type of pension for his widow. To sell land, therefore,
a husband had to have his wife questioned privately by a magistrate to provide
an uncoerced approval of the sale. Virginia and its southern neighbors
adhered to the requirement of private examination to a far greater degree
than Massachusetts or its New England neighbors, and more so than Pennsylvania
or New York too. Maryland courts peremptorily rejected acknowledgments
they deemed inadequate. The property subject to dower might
be reinterpreted too: though generally dower applied to any land held at
any time during marriage, Connecticut limited it to property held by the
husband at his death and until 1723 wives lost all separate property rights
in land they brought to the marriage. To the south, by contrast, Virginia
went so far as to treat chattel slaves as real for the purposes of adding them
to dower, assuring widows the labor needed to cultivate crops. Whereas the
Chesapeake colonies were generally expanding and giving greater assurance
to widows’ dower rights, therefore, the New England experiment –
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
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174 David Thomas Konig
supported radical English reform of the law, had no such tradition of resentment.
Indeed, the need to protect wives from negligent or wasteful husbands
drew on equity’s long tradition of guarding the interests of the weak and
vulnerable. The Chesapeake colonies, therefore, used equity to enforce separate
estates and private separation agreements. To overcome the disabilities
created by the common law doctrine of coverture and advance married
women’s property rights, therefore, English colonists had to resort to noncommon
law practices, whether through equity or statutory modification.
Legal alternatives to the common law appear most clearly, of course, in the
Dutch, French, and Spanish colonies. In following the Continental civil law
tradition – 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.
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Regionalism in Early American Law 175
peculiarities of the two regions “grow weaker and weaker by gradation from
North to South and South to North.” In Pennsylvania as well as in New
York, hostility to equity courts rested not so much on ideology as on a practical
aversion to their complexity and to the potential abuse by a proprietary
government. “[A]s for the Court of Chancery,” argued its opponents in the
Pennsylvania assembly in 1736, “when well Manag’d is the finest in the
world so on the other hand if managed by ignorance, prejudice, or Interest
must be the worst.” Penn’s charter gave the governor and council authority
to establish equity courts, but they did so only with the concurrence of the
popular assembly, which chose to confer equitable authority only on locally
controlled courts and gave the governor the authority of a chancellor only
when it trusted him. Similarly, New Yorkers so distrusted their governors
that they resisted their chancellor-governors and fought them relentlessly
until the 1750s.
The reach of equity extended beyond matters of family and touched many
aspects of life. Historically, direct attacks on equity usually identified postjudgment
interference as the most irritating grievance. Josiah Quincy, Jr., a
Bostonian visitingWilliamsburg, Virginia’s capital, in 1773, responded in
amazement when told how judges of the superior court constituted themselves
as a court of equity (sitting without a jury) and reversed the outcome
of a case. “I am told that it is no uncommon thing for this court to sit one
hour and hear a cause as a Court of Law; and the next hour, perhaps minute,
to sit and audit the same cause as a Court of Chancery and equity: and if
my information is good, they very frequently give directly contrary decisions.
Voltaire, his Huron or Pupil of nature might here exercise their talent
of wit and sarcasm.”23 Quincy’s objections gave voice to a New England
legal culture that favored creditors over debtors and regarded equity as an
ill-conceived boon to the indebted. By the middle of the eighteenth century,
Massachusetts courts relied heavily on the participation of juries to
obtain a community sense of just obligation, and Massachusetts creditors
were accustomed to bringing actions in assumpsit or case, where equity was
barred. Their notion of a just obligation was incompatible with what Charles
Gray has described as equity’s help for “imprudent or unlucky debtors.”
Massachusetts showed little sympathy for debtors who tried to exercise their
equity of redemption to stop foreclosure on mortgaged property and led
the way in making it easier for a lender to recover such property. In a departure
from the common law in property matters as significant as its turn to
partible inheritance, Massachusetts allowed judgment creditors to take real
property not secured by mortgage in satisfaction of private and public debts.
23 Josiah Quincy, Jr., “A Journal, interspersed with observations and remarks” [1773],
Massachusetts Historical Society Proceedings, 49 (1915–16), 465–66.
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176 David Thomas Konig
In Massachusetts, the writ of assumpsit suited a culture that saw a bargain
as a bargain and stressed obligation to one’s neighbors. Assumpsit,
in its various forms, appeared in Massachusetts writs as “case,” suggesting
a generic simplification and obscuring from historians its more sophisticated
content. It dominated the legal recovery of moneys lent and goods or
services had and received in Massachusetts, and did so to protect lenders.
By contrast, a very different legal culture drove Virginia suitors in another
direction, that of putting limits on the claims of creditors. Instead of the
written notes or contracts basic to assumpsit, it was more common for
Virginia debtors to secure their obligations by giving a bond – a sealed
instrument that admitted of no defense other than to deny its validity or
plead performance. Virginia creditors were usually debtors too, and this
system provided a legal mechanism consistent with a political and moral
economy different from that of New England. As creditor-plaintiffs they
rarely put their suits before a jury but preferred to allow the bench to assess
damages, which in the writ of debt (used to recover on bonds) were calculated
more strictly on the value of the undelivered amount and excluded
any special damages related to the non-delivery. By contrast, damages in
assumpsit might take into account the norms of New England, where juries
more commonly heard civil litigation, and as John Adams learned from his
practice, they might allow recovery “for more or less.” New York, which
fell under the economic influence of Boston, adopted this preference, but
usually only for relatively small sums; it continued to follow the Dutch
use of sealed obligations when larger sums were owed, thus demonstrating
once more the meeting of North-South regional differences in the Middle
Colonies.
CONCLUSION
It is worth emphasizing the legal precocity of the colonies and the particularities
of their legal forms in order to underscore how deeply the process of
legal change advanced ideological goals and to justify the claim that what
appears to be inexpert rustic degeneracy in the law actually represents a more
sophisticated eclecticism. The great changes in English commercial law at
roughly this same time period are not seen as crude or rustic, though some at
the time might have denounced such innovations as unwarranted: Sir John
Holt’s disapproval of legal innovation being “invented in Lombard Street”
parallels the process of legal innovation in the courts of distant provinces,
which anticipated changes later adopted in England. The “Duke’s Laws”
issued by the Duke ofYork (later James II) after the conquest ofNewNetherland,
for example, accepted Dutch rules on the assignability of obligations
well before English courts did.
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Regionalism in Early American Law 177
Ultimately – 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.
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6
penality and the colonial project: crime,
punishment, and the regulation of morals
in early america
michael meranze
American criminal law was forged in the crucible of the colonial enterprise.
Part British transplant and part American construction, the criminal law
gave vivid and physical form to the effort to turn the Americas into an
offshoot of Europe. Courtrooms and courthouses, gallows and whipping
posts, jails and prisons all marked the American landscape with the material
imprint of European institutions. In transporting British legal forms
and traditions, colonial authorities aimed to maintain their own claims to
civility on the borderlands of their cultural world while establishing their
authority over natives and settlers. But no simple transfer of legal culture
and practice was possible in the colonial world. Whatever the intentions
of imperial officials or initial settlers, the process of colonization and the
construction of unequal colonial societies produced legal systems that selectively
appropriated and distorted tendencies unfolding in the metropolis
itself.
During the seventeenth century, the crisis of the British state allowed disparate
colonial legal systems and cultures to develop. The highly decentralized
nature of British expansion, combined with the multiplicity of British
legal traditions, led to a pronounced juridical diversity in early American
law. Despite a shared acknowledgment of English sovereignty and the common
law, British colonialism produced not a centralized system of criminal
law but a variety of penal cultures. The religious conflicts that plagued the
seventeenth-century English polity only exacerbated these developments
as the founding of settler colonies during the post-Reformation struggles
over religion and the pursuit of religious utopias charged the criminal law
with particular sacred meanings. Combined with the British suspicion of
political centralization, the lack of effective imperial oversight allowed local
elites to turn the law to their own purposes, while the absence of meaningful
police intensified the importance of publicly imposed corporal penalties.
The fragmentation of the English polity was inscribed on the juridical culture
of British colonial world.
178
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Penality and the Colonial Project 179
During the eighteenth century, the growing power of the imperial state
challenged the relatively autonomous and disparate character of colonial
criminal law. The expansion of penal transportation after 1718 and the
spread of vice-admiralty courts and imperial bureaucracies underlined the
mounting presence of imperial authorities in colonial legal institutions.
Imperial officials displayed an increasing assertiveness in their review of
colonial legislation. The extension of British colonization itself meant that
the reach of British law was extended throughout the North American
seaboard, as colonial desires to mimic British gentility aided the spread
of more complex legal forms, practices, and institutions. Colonial penality
became more of a piece. To be sure, the reality of different colonies and
legal cultures precluded a uniformity of law and practice. But compared
to the seventeenth century, the eighteenth century witnessed an increasing
imperialization of the criminal law throughout the mainland colonies.
Colonists’ relationship to metropolitan power, however, was only part of
the story of penal culture and practice; the colonial world and the contests
of colonization played an equal role. Beginning in the seventeenth century,
the criminal justice system became a forum for the adjudication of conflicts
between settlers and Native Americans and a system for the assertion of
colonists’ authority. During the same period, the criminal justice system
rapidly became embedded in the regulation and production of colonial labor
systems and labor discipline. Whether enforcing the expansion of bound
labor, or supplementing a father’s power to demand family labor, or reinforcing
the infliction of punishment aboard ship, the criminal law provided
sanction for the labor coercion that made colonial expansion and maritime
integration possible. Nowhere was the relationship between colonial law
and labor organization more striking than in the ways that the criminal
law echoed the spread of racialized chattel slavery in the late seventeenth
and eighteenth centuries. The criminal law not only supported the master’s
right to physical punishment but through the development of dual systems
of courts and dual practices of punishment, it also made material the reality
that there was one law for free people and another for bonds-people.
All these systems – 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
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180 Michael Meranze
the courts and the places of punishment were open to the community and
spoke in its name.
The revolutionary crisis transformed but did not transcend these colonial
patterns. The imperial reorganization that followed the Seven Years
War included, among many other elements, a program to weaken the reach
of local juries even as the violence that accompanied colonial resistance
ultimately found its place in courtrooms. The result was a rapid politicization
of the penal world on land and sea. During the 1760s and the 1770s
British colonials and imperial officials debated the appropriate forms of
criminal law and punishment, while independence spurred a search for new
“republican” forms of penality. Paradoxically, the revolutionary upheaval
fused penality and the American relationship to imperial culture even more
tightly together.
The end result was a selective appropriation of colonial practices and
legacies. During the Revolution and into the Early Republic, the diversity of
local practices was not lost, but the larger milieu changed dramatically. Most
obviously, the imperial context disappeared. As a result, criminal justice
became even more the purview of individual states. But at the same time,
critics building on a transatlantic genteel critique of public punishments
overthrew the elite consensus behind publicly inflicted punishments of pain,
shame, and death. The emergence of reformative incarceration, growing
opposition to capital punishment, and efforts to simplify and moderate penal
codes all combined to call into question criminal punishments throughout
the new nation.
Contending penal theories and practices divided the new nation regionally.
In the slave South, despite the emergence of penitentiaries, penality
continued to parallel the colonial world of the British West Indies; in the
North, penal practice identified itself with the bourgeois and religious
reformers of metropolitan England. Equally significant, the different trajectories
of reform, combined with the erosion of northern slavery, meant
that criminal punishments not only divided according to region but also
became a source of division among regions. In new and important ways,
the ideologies and practices of punishment became linked to the dominant
economic forms of the North and the South in the aftermath of revolution.
I. THE IMPERIAL BRITISH CONTEXT
Despite the variety of colonial settings and the vagaries of colonial encounters,
English forms and imperial authorities determined the parameters
of criminal justice in early British America. Although the peoples of the
colonial periphery (Europeans, Africans, and Americans) were disparate,
English standards defined legality and illegality in the colonies. In that
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Penality and the Colonial Project 181
sense at least, criminal justice in the British colonies was one imprint of
the power of Britain’s imperial power itself. Whatever alternate systems
of punishment people brought to the colonies, once incorporated into the
British colonial order, the peoples of America faced penal practices modeled
on English ways. In particular, criminal justice in early America partook of
England’s distinctive emphasis on corporal symbolism. Famously lacking
a “continental”-style police force, the English relied on the public display
of state violence to assert the supremacy of the law. Their North Atlantic
colonies would follow suit.
Throughout the seventeenth and eighteenth centuries, capital punishment
stood at the heart of the British penal system. The English criminal
code possessed an extremely long and continually increasing list of capital
crimes – upward of 200 capital offenses by the eighteenth century. Not only
murder, rape, petty treason, and serious crimes against property could lead
to the ultimate penalty; British lawmakers extended the reach of capital
sanctions in bewilderingly complicated directions. To be sure, many capital
offenses were highly particular, such as offenses against particular forms
of property or even against the property of specific companies. And their
actual deployment was irregular. But the continued expansion of capital
punishment points to an essential fact of British criminal law: the physical
and symbolic center of punishment in Great Britain was the gallows.
Punishment stood at the intersection of political and moral authority in
early modern Britain. Whether at the ,whipping post, the pillory, or the
gallows, state-inflicted physical degradation of the body was a crucial site
for the articulation of authority and for the fusing together of religious
and political symbolism. England remained, however diffusely, a Christian
country. The body under duress drew on powerful Christian symbols and
narratives. As countless Divines reminded their listeners, magistrates were
expected to “Beareth Not the Sword in Vain.” Punishments maintained
the social order; indeed they partook of the hand of God. In this world, the
state stood in for the Divine and the Divine stood as justification for the
state; the body itself stood as a crucial representation of the social order.
The condemned body, in particular, figured in a wider political symbolism
that imagined society itself as a great corporeal unity. Its sufferings were
a microcosm of the sufferings the social body underwent through crime.
The distresses of physical punishment thus achieved their great power not
simply by virtue of the universal experience of pain; the body at the scaffold
drew on some of the most powerful symbols of British culture.
Nonetheless, there were certain countervailing tendencies. The widespread
availability of benefit of clergy and the frequent recourse to “pious
perjury” (that is, the jury practice of devaluing stolen property so that theft
did not reach the threshold of a felony) restrained the actual use of capital
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182 Michael Meranze
punishments. On the recommendations of the judges and prosecutors, the
Crown frequently granted pardons. Throughout the eighteenth century –
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.
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also the whole system of vice-admiralty courts. Perhaps most important, the
simple fact of empire systematically affected the social contexts of colonial
justice. Colonial societies did not exist in isolation and could not ignore the
geopolitical realities of intermittent warfare or the demographic realities of
constant immigration. The cultural and social diversity of colonial societies
existed because of empire, not despite it. Though local structures and interests
guided the day-to-day operations of criminal justice in the colonies, the
terrain on which the criminal law operated could never be fully separated
from its imperial context.
II. CRIMINAL LAW, COLONIAL VIOLENCE
If the imperial context shaped the criminal law, the law itself played an
ambiguous role in the process of colonization. Throughout North America
the English sought to subject the native populations to English legal forms
and institutions. Not surprisingly Indians, with their own very different
senses of justice, did not always share the colonists’ enthusiasm for English
law. Whereas the English assumed that criminal justice was a state activity
to determine and punish individual responsibility, Native Americans
placed a far greater emphasis on community-based reconciliation and recompense.
English notions of responsibility could conflict with native notions of
responsibility; what determined justice in those instances was the balance of
forces. As a result, the question of jurisdiction and of appropriate practice
loomed large in the penal relationship between colonists and natives. In
its very existence the law became a terrain of conflict between settlers and
natives. To be sure, Native Americans did actively participate in colonial
legal proceedings, often with great success. But of greater importance than
individual cases or punishments was the larger colonial setting of legal
practice and culture. And in that larger setting the colonists eventually
determined the rules.
In the earliest years of settlement the reach of English law and the capacity
of Englishmen to subject natives to their punishments and disciplines were
limited. As they had demonstrated in Ireland, English elites were quite
happy to subject dependent, or legally foreign, populations to practices
unsuited for a “freeborn Englishmen.” Within the limits posed by their
relative military and political weakness, Virginia authorities, for example,
were willing, when able, to subject Native Americans to coercive legal punishments.
In both Massachusetts and Plymouth, colonial authorities aimed
to ensure that natives would be brought before English courts and punished
according to English law. Their success was mixed. Given the power
of neighboring native groups, the English were not always able to ensure
the delivery of natives they suspected of criminal offenses. Moreover, the
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184 Michael Meranze
English authorities recognized the practical necessity of punishing colonists
accused of crimes against Indians. But even in the earliest years colonists
were able to make greater demands on the natives than the natives made
on colonists. And the inequality of legal cultures would only grow.
Colonial authorities had to balance their desire to control the native populations
with their equally strong desire not to provoke native violence. The
result was to create a formally equal if contextually unequal criminal justice
system. In New England, at least prior to King Philip’sWar, treatment of
indigenous defendants was largely the same as treatment of colonial defendants.
Punishments were not systematically different, the range of crimes
that brought natives to the bar was for the most part similar, and both
colonists and natives were subject to the same procedures. But the courts
and juries rarely included native members, and the larger tendency of the
legal system was to impose English institutions, laws, and regulations on
the native populations. In this trajectory the criminal law replicated and
reinforced the inequalities of the colonial relationship.
Coercive violence against Native Americans was recurrent in the seventeenth
century. However, most violence took place in venues outside the
criminal law. It does not appear, in other words, that the criminal law was
a central tool for colonizing the native populations. To suggest that the
criminal law played a marginal role is not to deny the everyday violence of
the colonization process nor to ignore the incidents when Native Americans
were subject to the punitive sanctions of the law. Nor is it to deny the manifold
ways that the rhetoric of the law and its claims could be mobilized
to cast the natives as savage. It is to suggest merely that relations between
natives and settlers in the seventeenth century took place largely outside of
the criminal courts and hence that the business of the criminal courts was
not significantly concerned with Native Americans.
Still, colonists did deploy the rhetoric of the law and social discipline
against the indigenous populations. Indeed, the spread of colonial power
meant that over time the law did become a more important tool for colonizing
the peoples of early America. In New England, to give but one
example, colonial authorities in the latter part of the seventeenth century
increasingly passed and enforced laws that regulated native access to alcohol
and guns. And in the years following King Philip’sWar colonists took
active steps to regulate and confine Indian populations. The increased control
following King Philip’s War was, in fact, the most dramatic example
of the changing relationship between law and power. In the years following
the war the Massachusetts government restructured Indian governance, created
means for intensified oversight of the native population, and took steps
toward limiting and defining Indian space. These actions were only the most
concentrated moment of a much larger process: the ongoing reduction of
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autonomy for those native groups closest to the English. From that point on,
everywhere that colonists and natives met the criminal law became a source
of conflict as well as conflict resolution. By the eighteenth century, along
the seaboard at least, those conflicts had been settled in favor of English law
and English punishments. Natives and newcomers might be tried in the
same way, but more and more that way was English.
III. THE PUBLICITY OF PUNISHMENT IN COLONIAL
BRITISH AMERICA
For the most part, Britain’s American colonists did not engage in any
radical experimentation in the criminal punishments they imposed on the
condemned. As members of the empire, they quite faithfully reproduced
the repertoire of punishments in place in Britain. The number of capital
offenses was not as great in the colonies as in the mother country, but
the gallows anchored criminal justice in America as it did in Great Britain.
From the earliest settlements inVirginia, Plymouth, and Massachusetts Bay,
through the Restoration colonies from Pennsylvania to the Carolinas, and
on to the utopian experiment in Georgia, capital punishment was a constant
presence in social life. With the brief exception of early New England and
Pennsylvania, hanging was imposed for crimes against property as well
as persons. To be sure, in quantitative terms, the death penalty was not
deployed on the same scale as in England. It was possible for counties, and
even colonies, to go several years without witnessing an execution. Colonists
imposed secondary corporal punishment and fines far more frequently than
they imposed death. But as a threat the death penalty hung over the penal
practices of the British in America as it hung over England itself. It was,
after all, the point where power over life and death, the intersection of
the state and the Divine, assumed its sharpest relief. Not simply as a legal
category, then, but as social reality, the death penalty took up a settled
position in the landscape of colonial British America.
Throughout the British colonies criminal punishments operated in a fundamentally
public manner. Not only was justice imposed in the name of the
public, it took place before the public and through the medium of denizens
of the district. Courts were primarily situated in local communities, and
their proceedings were open to the local population. Sentences were, for the
most part, handed down by local notables and juries. For the free inhabitants
of the colonies, criminal justice took place in public venues modeled
on England. Although justices of the peace could hand down summary
judgments for minor offenses, most criminal penalties against the body
were inflicted under the authority of courts of Quarter Sessions or their
equivalent. Capital cases took place in even more rarified surroundings.
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186 Michael Meranze
The leading magistrates of the colony would oversee the trying of capital
offenses in courtrooms marked by special ritual and pomp.
To be sure, these trials were often ramshackle affairs. Courts, especially
in the early years of the colonies, frequently sat in commercial places (taverns,
inns, etc.). Justice was both swift and decisive. Many sessions handled
multiple cases in a day, trial testimony was brief, and the defendant stood
at a grave disadvantage if he or she lacked support in the community.
Procedure, though modeled on the English forms, was simplified. This situation
meant that, like punishment itself, the process of criminal justice was
eminently public. The community – 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.
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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.
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188 Michael Meranze
also employed a varied repertoire of secondary corporal penalties. Colonial
authorities aimed to inflict pain on the bodies and humiliation on the souls
of criminal offenders. They inflicted whippings (sometimes at a whipping
post and sometimes at a cart’s tail), imposed time in the pillory (with or
without additional duress from onlookers), branded, bored holes in tongues,
defaced, and cropped ears. If the death penalty most dramatically imposed
death, the more common public punishments wracked the bodies of offenders
and did so with the intent of display. Whippings, after all, were not
simply painful; they were public. In 1736, for example, the Philadelphia
authorities made certain that one woman convicted of picking pockets during
a market day was “exposed during the Market upon the Balcony of
the Court-House with her Face towards the People, that every Body might
know her; after which she received a Whipping.”5 Some sense of the disgrace
a whipping entailed can be seen in a Dutch father’s reaction to his son’s
sentence of a whipping for fornication in 1662. In his request to the New
Haven magistrates to change the sentence to a fine he explained that the
Dutch thought that “to be corporally punished was such an infamy . . . that
they looked upon such noe better than a dog & not fit for Commerce with
them & soe his sonne would be undone Thereby.”6 Humiliation and pain
were the coin of this particular penal realm.
As in England then, public punishments operated on manifold levels.
Clearly they imposed both pain and death. But they also turned the body
into a symbol: of the power of the law, of God’s love and anger, of the severity
and mercy of the authorities. The body of the condemned was the meeting
point for both sacred and secular authority, and reactions to it moved from
the grimly satisfied to the indifferent through the mournfully sympathetic
to the emotionally overwhelmed. Despite their relative infrequency, public
punishments were central rituals to colonial authority and to the colonial
imagination. In the NewWorld setting, English forms of punishment may
have been especially important. Through their violence to the body of the
condemned, the authorities sought to reaffirm the community’s commitments
to the demands of God and of civilization.
Paradoxically, the intermittent and peripatetic nature of punishments
inscribed criminal justice more widely on the social landscape. Lacking
distinct and isolated penal institutions, early Americans witnessed punishments
and judicial proceedings in a wide variety of venues. Spaces normally
taken up by trade or recreation could be seized temporarily for the purpose
of criminal justice. If the law lacked the majesty that it possessed in the
5 Pennsylvania Gazette, October 21–28, 1736.
6 Franklin B. Dexter, ed., New Haven Town Records, 1649–1684 (New Haven, 1917–1919),
2: 12.
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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
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190 Michael Meranze
investigations, and established a simplified system of courts (at the county
and colony level) that assumed the myriad functions handled by the diverse
judicial institutions of the mother country. The authorities certainly hanged
offenders – 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.
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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
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192 Michael Meranze
critique of England’s corruption. On the one hand, Massachusetts Bay and
its offshoots constructed dual systems for the enforcement of law and morals:
both church and state had important responsibilities to ferret out and punish
sin and crime. On the other, they transformed their criminal justice systems
in accord with their reading of biblical precedents: New Englanders
significantly modified dominant English practice in the areas of evidence
and statutory definitions of crimes.
The direct influence of religious doctrine on legal practice would not
survive the seventeenth century. Nevertheless the importance of religion
was unmistakable in the ways that the New England colonies dealt with
crime, immorality, and transgression in their early decades. New England
churches practiced a detailed surveillance over the lives of their members and
regulated their morality through chastisement and excommunication. In
New Haven the mechanisms of Puritan surveillance were especially strong.
Under the leadership of Theophilus Eaton, New Haven authorities imposed
a highly personalized and religious form of legal authority. Due partly to
its small size and partly to its powerful patriarchal magistracy, New Haven
produced a society remarkably free from violence. In Massachusetts, matters
were more complicated. Early settlers may have hoped to create God’s kingdom,
but as the gradual expansion of the criminal code demonstrates, any
expectation on the part of the colony’s founders that they would govern an
immaculately God-fearing and law-abiding populace diminished rapidly.
Throughout the century, both churches and courts remained deeply
involved in the regulation of morals and crime. From violations of sexual
propriety to crimes against persons and property, the importance of
religion intersected with the law in a variety of crucial ways. Under normal
circumstances, a parallel system of moral regulation existed: churches
would probe into the moral behavior of their congregants, whereas magistrates
would pursue and discipline violators of the colony’s legal codes. But
at times, as in the Antinomian crisis of the 1630s, the struggles with Quakers
in the 1660s, or the witchcraft trials throughout the century, enforcing
law on behalf of both the Divine and the human could prove explosive.
Under these circumstances, the Puritan commitment to dual regulation
meant that theological and religious differences intersected with political
structures in ways that threatened the existence of the colony itself. In the
aftermath of the revocation of the Massachusetts charter and the legal and
cultural fallout of the witchcraft trials of the 1690s, criminal justice and
religious orthodoxy would take separate paths. But that the criminal justice
system of Massachusetts Bay should remain devoted to the policing of God’s
way was never in doubt.
Connecticut steered a course closer to Massachusetts than to New Haven.
In fact, when the New Haven colony was absorbed into its larger neighbor
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the early emphasis on magisterial piety faded away. But in whatever variation,
the Puritan emphasis on intrusive surveillance and magisterial inquisition
was strong – 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
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these trends (outside of New Haven at least) were never unchallenged, in
the orthodox colonies of New England magistrates retained a firm control
over the mechanisms of criminal punishment and social discipline. This
control was largely in keeping with the growing English emphasis on summary
judgment, but the Puritan emphasis on a patriarchal magistracy fused
legal practice with the larger structure of authority in a particularly powerful
way. Indeed, the magistrates had such authority in the early years of
Massachusetts Bay that the question of magisterial discretion in criminal
punishments was an ongoing – 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.
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Sexuality marked a further legal intersection between religious scruple
and colonial labor systems. Fornication, rape, and adultery were all punished
severely throughout the New England colonies (rape often with capital punishment,
the lesser offenses with some combination of whipping, fine, and
admonition). Fornication especially marked a point of intense contestation.
The seriousness with which authorities dealt with fornication bespoke not
a shared cultural attitude but rather the extremely diverse practices and
attitudes of the colonists (both Puritan and otherwise). Indeed, it was in
the realm of sexuality (and in the case of fishing towns the issue of drink),
that the reality of criminal justice as an argument appeared most regularly.
The sanctions of the law represented one side in an ongoing, and perpetually
unresolved, cultural conflict.
One striking component of criminal justice in seventeenth-century New
England was its relative openness to women. In this regard, New Haven
led the way. During this colony’s years of independence, women frequently
found their way to its courts to register criminal complaints. The New
Haven authorities responded to these accusations and punished men for
sexual assault rigorously and severely. By the same token New Haven’s
leaders were intolerant of fornication. But here the interesting point was
that men were punished more severely than women. For both crimes, the
whipping post was the favored penalty. But ifNewHaven was extreme it was
not alone. The commitment of Puritan authorities to suppress transgressions
of sexual codes combined with the Puritan commitment to overcoming the
double standard in sexual matters meant that women’s words were taken
seriously and men’s sins were punished openly. Still, even in this realm
the power of the patriarch was foremost. Adultery after all was defined by
illicit sexuality on the part of married women. Even rape appears to have
concerned Puritan magistrates most when it involved wives. In both cases,
although the crime was illicit or coercive sexual behavior, an important
issue seems to have been the damage done to the husband’s rights.
In the seventeenth century, then, the North American situation made
possible a selective intensification and adaptation of the practices of English
criminal law in light of specific colonial projects. Seventeenth-century colonial
leaders drew on the Tudor intensification of the power of justices of the
peace to further particular religious and labor systems. In New England,
religious critiques of church courts and hierarchies meant that the criminal
law was separate from religious discipline, while the importance of fathers
in the family, economy, and society meant that the law reinforced the patriarchal
power of Puritan gentry. In the Chesapeake, the widespread early
modern concern with “masterless men” reinforced the capacity of Chesapeake
planters to deploy the law in the interests of labor discipline. In both
areas, colonial efforts to regulate sexuality in the interests of production
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and property placed the regulation of desire at the center of court practices.
The primacy of the colonial situation was, in turn, a manifestation of both
the diffuse nature of English jurisdictions and the relative weakness of the
Crown to assure uniformity in colonial practice.
V. IMPERIALIZATION: GENTILITY, COMMERCE, AND SLAVERY
The changing structures of the empire and the changing system of criminal
law mirrored each other during the eighteenth century. If religious
utopianism and coercive labor relations helped shape the meanings of
seventeenth-century criminal law, the eighteenth-century law manifested
the values of gentility, property, and commerce. Whether in the increasingly
secular culture of New England, the increasingly civil culture of the
Chesapeake, or the manifestly bourgeois cultures of the middle colonies,
more elaborate legal forms intersected with the repertoire of public punishments
to create a more genteel penal realm. Equally important, the
expansion and consolidation of systems of slavery heightened the everyday
presence of force in colonial societies while transmuting the notion of dual
legal systems in a new direction. At the same time, an increasingly powerful
British state extended the reach of its criminal law through transportation
and the expansion of the imperial bureaucracy. The diversity and localism
that marked the seventeenth-century colonial project did not disappear,
but it became submerged within an increasingly uniform imperial world
of culture, force, and property.
From one perspective, little changed in practices of punishment during
the eighteenth century. Courts continued to impose the same range of
financial, shaming, corporal, and capital penalties. Fines and whippings
remained the most frequently imposed penalties, although, not surprisingly,
the numbers of hangings increased. As in the seventeenth century the vast
majority of convicts were men.
As new colonies were established and consolidated, the English criminal
law expanded with them. Whereas the reach of the law in the seventeenth
century was as intermittent as English colonial holdings, by the eighteenth
century English legal forms and practices held sway from Maine to Georgia.
Throughout the colonies quarterly courts of record were held; sheriffs, coroners,
and justices of the peace identified criminals and criminal activities;
printers distributed English legal forms and writs; and appellate courts met
regularly. As each colony matured so did the hierarchy of courts as legal
officials mimicked the mother country. Closer connections with Britain also
meant expansion of capital codes. Pennsylvania may have been the extreme
case. Having begun with a single capital offense (murder) in the late seventeenth
century, eighteenth-century legislators regularly added to a basic
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list of nearly twenty offenses. But if extreme the Pennsylvania story was not
unique. Throughout the colonies the list of capital offenses grew across the
late colonial period as the laws of England made their presence felt in the
colonies.
Finally, across the century courts and magistrates remained focused on
offenses against property and persons. Though nothing approaching a complete
accounting of prosecutions in the eighteenth-century colonies exists,
certain general propositions seem clear. For one, although the numbers
of offenses varied widely in time and place, minor crimes against persons
and property were ongoing issues throughout eighteenth-century British
North America. In New York, to name only one example, the most prevalent
problems facing the courts were crimes of violence and crimes against
public order. Pennsylvania had a rate of personal violence that exceeded
that of England. So did the southern colonies. Crimes against property
were not, to be sure, on the scale of London, but colonial crime certainly
was comparable to the rest of England. New England was the exception
to this overall situation. New Englanders sustained a remarkably low level
of crimes against persons and property. The same could not be said of the
range of colonies south of the old Puritan enclaves.
Still, there were also departures from the seventeenth-century situation.
For example, the colonial legal regimes and the English legal system were
becoming more interconnected. From the earliest days of colonization,
English judges and ministers had intervened in the legislative and judicial
processes of the colonies. Beginning in 1718, h,owever, the English
government made the colonies an actual appendage of British justice. From
that point on, the transportation of convicts from the British Isles to the
American colonies was systematic and continuous. Over 50,000 convicts
were transported between 1718 and the Revolution, most to Maryland and
Virginia. Whether or not colonial fears that Britain (mostly England but
Scotland and Ireland as well) was simply dumping its criminal problems
on the colonies were borne out in practice, transportation did mean that
British criminal justice directly impinged on colonial society. The spread
of vice-admiralty courts through the eighteenth century, although of less
importance to colonial society than transportation, was another example
of increased imperial intrusion into colonial justice and colonial society.
The seventeenth-century colonial legal systems had developed in relative
autonomy. The same could not be said of those in the eighteenth century.
Even within colonial criminal justice there were changes in context and
emphasis. For one thing, New Englanders’ desire that the criminal law
manifest a sacred drama of sin and its punishment declined. The famous
epidemic of executions at Salem during the 1690s proved to be the last
systematic deployment of the penal law to uproot witchcraft. In the longer
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term, the effort to control morals offenses through the criminal law moved
from center stage of the penal theater. It was not that in the eighteenth
century courts ceased to prosecute and punish individuals for adultery, fornication,
prostitution, and like offenses. In quantitative terms violations
of moral regulations consistently took up a significant amount of the time
of county courts and justices of the peace in all of the eighteenth-century
colonies. In Massachusetts, to name only one, fornication predominated
among prosecutions until the Revolution itself. But across the colonies
morals offenses no longer stood at the center of penal concerns. In Connecticut,
men were rarely prosecuted for fornication by the middle of the
eighteenth-century. Women, it is true, were still brought before the magistrates
and their names publicized, but the idea that the courts enacted the
public reaffirmation of a common ethical condemnation of fornication had
passed.
A related transformation occurred concerning sexual assault in New England.
Rape and other sexual assaults continued to be punished severely across
the century, but it became increasingly difficult to gain convictions for
those crimes. Whereas prosecutions for rape were almost always successful
in seventeenth-century Connecticut, by the eighteenth century convictions
were limited to Indians, slaves, foreigners, or strangers. To be sure, in what
Cornelia Dayton terms the “eighteenth-century double standard,” women
continued to be held accountable for their sexual transgressions. But, as
regards sexual assault and fornication, the law’s desire to control the sexuality
of men had diminished. The control of sexual behavior had been central
to the symbolic economy of the seventeenth-century New England court
system, and the court system had been central to the regulation of sexual
morals in seventeenth-century New England. By the late colonial period
this world had been lost. Whereas seventeenth-century New Englanders
assumed that courts were an essential site of the public acknowledgment
and punishment of sexual transgression, in the eighteenth century control
of sexuality became a more diffuse, and hidden, social task.
What was true in New England was also true elsewhere. Indeed, the
emphasis on the communal aspect of morals regulation had always been less
extreme in other colonies. Again, it is not that the courts did not take cognizance
of morals offenses. Courts in Pennsylvania, for example, punished
numerous individuals for fornication, adultery, drunkenness, and prostitution.
And Quakers, at least, created a second system to police marriage
and sexuality within the various meetings. In Richmond County, Virginia,
although offenses against morals remained the largest single category in the
first half of the century, their overall importance declined dramatically following
the 1720s. But the more secular societies of the middle and southern
colonies never placed the same emphasis on making the prosecution and
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punishment of morals offenses a communal drama of sin and redemption.
Instead, they treated them as mundane problems of law enforcement or
left them to the cognizance of religious discipline. The authorities became
increasingly concerned with the economic and social, as opposed to the
more explicitly moral, aspects of “morals” offenses. Instead of the drama of
sin, magistrates were more concerned with the commonplace burdens to the
community. Bastardy, from this perspective, threatened less for its religious
significance than for the costs it could impose on the town or county.
One indication of the changing emphases of criminal justice was the
relationship between criminality and print. Across the northern colonies,
if most dramatically in New England, printers printed and readers read an
ever expanding number of criminal narratives, execution sermons, dying
speeches, and court transcripts. To be sure, growth in the number of criminal
texts followed growth in the number of printers. Nevertheless, the
popularity of criminal narratives points to the deep fascination that matters
of criminality and punishment held for eighteenth-century colonists.
It points also to the changing contours of that fascination. The English,
of course, had long distributed dying speeches. The Ordinary of London’s
Newgate prison supported himself, in part, by drafting and selling the
biographies of the condemned. Seventeenth-century colonists introduced
new twists. New Englanders led the way in developing the genre of the
printed execution sermon. Reproducing the ministerial exhortation that
took place before the hanging, execution sermons became a major technique
through which ministers asserted their interpretation of the meaning
of secular events. The involvement of leading ministers in crime literature
gave it a cultural gravity and meaningfulness it lacked in England. During
the course of the eighteenth century, however, sermons increasingly
found themselves bundled with other forms of criminal narrative. At the
same time, the growing popularity of criminal memoirs and dying speeches
suggests the widespread allure of outlaws and others who challenged authorities.
By the late colonial period ministers and their messages were pushed
to the margins; crime and criminality on its own terms had taken center
stage. The relationship between sin and crime had not disappeared from
people’s minds, but the cultural representation was increasingly secular, no
longer infused with religion.
If the emphases of the criminal courts were changing, so were court
practices. The eighteenth century witnessed increasing complexity in legal
forms and practices. Although colonial courts remained pale versions of their
English counterparts, over the course of the eighteenth century they became
comparatively more sophisticated. Criminal defense attorneys began to
appear intermittently in the colonies, law books and justice of the peace
manuals spread, and the physical space of the courts themselves became more
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200 Michael Meranze
formal. If seventeenth-century court days were often ramshackle affairs held
in ramshackle surroundings, in the eighteenth century court buildings and
court rituals became more elaborate and formidable. Indeed, in Virginia the
authority of the courts and the ritualization of court proceedings generated
struggles between attorneys who wished to seize control of the law and lay
critics who argued that the courts were becoming a world apart from the
community. The growing pomp of court activities and the formalization
of their spaces meant that criminal justice stood as a unique realm. The
public nature of punishments, of course, continued to blur the distinctions
between juridical and everyday space, but that there was a separate juridical
space was less and less in doubt.
From all of these developments should we assume that the criminal law
was becoming more “anglicized,” to use John Murrin’s famous phrase? Collectively,
these developments do suggest that colonial criminal law and its
practice were increasingly modeled on the central law courts of eighteenthcentury
England. The growing presence of attorneys, the increasing complexity
of legal forms, the spread of legal education, and the heightened
emphasis on property crimes all mirror developments in England. Still,
there are reasons to doubt the notion of anglicization. For one thing, England’s
criminal law was itself changing. Transformations in the British economy
and in Britain’s place in the Atlantic world produced new emphases
on financial crimes, and the elite’s perception of growing social unrest from
below stimulated the expanded capital code. For another, there had never
been a single criminal law of England that could be transported as such to
the colonies. Colonial legislators had always had a variety of legal traditions
to choose from and had done so in light of their own peculiar projects. What
was occurring in the eighteenth century was that imperial pressures toward
uniformity and colonial desires for civility both promoted a growing adherence
to a particular strain of English criminal law – the law on display in the
sophisticated courts of the capital. In this way, it would be more appropriate
to treat eighteenth-century transformations as an “imperialization” of
the law.
And then there was the question of slavery.
The law of slavery and the criminal law were powerfully intertwined.
Indeed, the expansion of slavery and slave codes constituted the single
most significant influence on the transformation of the criminal law in the
colonial eighteenth century. Not that the intersection of the criminal law
and the law of slavery was new: it had begun at least as early as Virginia’s
efforts, during the 1640s, to regulate the sexuality of female slaves. And
throughout the late seventeenth century, colonial governments had placed
firmer and firmer criminal restraints on their enslaved populations. But
during the eighteenth century efforts to control slave populations in the
interests of the master class assumed new dimensions and complexity. From
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isolated efforts to confront specific problems related to the organization of
slavery or the authority of slave owners to the establishment of special
courts and policing powers, eighteenth-century legislators across British
North America consolidated the power of the master through the authority
of the law.
Slave codes shared certain characteristics. For one thing, slave punishments
degraded the body. Slaves lacked property, after all, and the law
could only seize their corporal being. But the range of legitimated punishments
suggests that degradation of the body was not simply an extension
of the more conventional criminal codes. Virginia allowed the maiming of
runaways; South Carolina included nose slitting in its legal arsenal. Both
Virginia and South Carolina codes contained provisions for castration and
burning alive. Nor were these efforts limited to the South. Pennsylvania
included castration among its penalties in 1705 (a law that was struck down
in England). New York burned some condemned slaves alive. Moreover, the
penalties for slaves who committed offenses that cut across criminal codes
were greater. In South Carolina, a slave could be executed for causing a
white person to be “maimed, or disabled.”8
Just as the law allowed itself broad license to degrade the bodies of slaves,
it did little to restrain masters in their similar pursuits. True, there were
legal limits to a master’s liberty in punishing slaves (and more stringent
limits on the power of an overseer), but the presumption that masters would
not willfully damage their own property meant that, in practice even more
than in law, official restraints on the infliction of corporal punishment were
negligible. Moreover, the ability of slaves to challenge their master’s punishments
was limited by their legal incompetence to testify against whites.
Although slaves could testify against other slaves (in the interest of discovering
conspiracies) their word could rarely, if ever, be mobilized against a
Euro-American. When it came to whites, the rules concerning testimony
against slaves were looser than in regular proceedings. Indeed, in New York,
Virginia, and South Carolina, to name only the most important colonies,
the authorities established separate judicial systems for slave crimes – 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.
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202 Michael Meranze
on the exercise of the penal power. Some procedural safeguards were followed,
and sentences were remitted in part or in whole. The slaves’ status as
property meant that some masters defended their slaves from the full rigors
of the law. Nor was it impossible to prove the innocence of accused slaves
or the guilt of masters who had exceeded the bounds of customary treatment.
Justices might mitigate punishments to spare the public the expense
of compensation, or because of doubts about guilt, or out of humanitarian
considerations. Each colonial code, moreover, had its own specific trajectory.
Virginia’s, for example, moved in the direction of leniency and heightened
security for the accused, whereas South Carolina heightened and tightened
its slave code across the century. Nevertheless, in each case legislators
designed the criminal laws of slavery with the same working principle in
mind – ensure the maintenance of human property in the interest of the
owner. From the extremity of punishments deployed, through the modified
rules of evidence, to streamlined and ad hoc judicial proceedings, the
criminal law moved with remarkable and incessant force against the bodies
and freedoms of enslaved men and women. Even the terms on which masters
might seek to protect their property reveal the basic structure of the
criminal law of slavery. Colonies offered compensation to masters for the
loss of their property in cases of execution or banishment. So for masters
the question of their loss structured the calculation of intervention: was the
alleged offense worth the loss of property, and was the compensation sufficient
for the loss of that particular slave? Some masters may have intervened
in the name of humanity. But structurally the issue was whether or not the
criminal punishment sustained, or damaged, the property holding of the
master.
The law’s deployment of public force in support of masters’ power produced
a complex dual system of justice in the colonies. Most directly,
colonies with substantial populations of enslaved men and women relied
on special courts to deal with slave offenses. These courts paralleled the
regular judicial apparatus and often had the same personnel as the regular
courts, but they followed their own procedures, operated on their own rules
of evidence, and could declare their own (often exemplary) punishments.
More fundamentally, the power of the law served to reinforce and to replicate
the powers already granted to the master. Most slave crime and most
slave punishment occurred on the plantation. The legal system served as
bulwark, but the prime locus of criminal punishments within slavery was
the master’s whip, not the colony’s gallows. The role of the law was to
legitimate the informal practices of plantation discipline and to intervene
in those cases where plantation discipline was not sufficient to sustain the
legal order and the master’s authority. Only in extremely rare cases might
the community intervene against excessive plantation discipline. The law’s
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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.
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204 Michael Meranze
of African Americans to colonial society produced a system of separate and
unequal legal standing. As a result, the dialectic of red, white, and black
legal inclusions and exclusions took a variety of paths.
One might pursue this dialectic further. For example, it is worth speculating
that the centrality of slavery to colonial society had crucial ramifications
for the punishment of criminals in the eighteenth century. Although the
criminal law and slavery had long and separate histories, in the eighteenth
century acceptance of the whip and the gallows fused slavery and penal law
in new ways. On the one hand, the growing importance and acceptance of
slavery in the eighteenth-century colonies may have normalized the continued
practice of publicly imposed corporal punishment. As slavery reshaped
the societies of both northern and southern colonies, the general deployment
of coercive violence took on ever greater public presence. Each setting
reinforced the other. On the other hand, from the mid-eighteenth century
onward, as the genteel on both sides of the Atlantic began to withdraw
in disgust from the spectacles of suffering at the whipping post and the
gallows, the centrality of the body in both the traditional system of punishment
and in the discipline of the plantation meant that the connection
between the two settings worked to undermine resort to violence in each. As
in England, there is evidence of growing uncertainty about the legitimacy
of public punishments in mid-eighteenth-century colonial America. The
growing problematization of the public infliction of legal violence would
prove to be an important legacy for the revolutionary period.
The imperialization of the criminal law transformed both the law and
its relationship to the colonial project. The elaboration of transportation
and the expansion of maritime courts directly intruded imperial authority
into colonial society and trade. But more fundamentally, the colonists’
consolidation of chattel slavery and their desire to partake of British gentility
meant that the law assumed new tasks of civility and coercion that aligned
the mainland colonies with the societies of the BritishWest Indies and the
culture of the metropole in new and unpredictable ways. The imperialization
of the eighteenth century meant that the question of the colonial project
would be inescapable in the history of American criminal law.
VI. COLONIAL TRANSFORMATIONS, REVOLUTIONARY
LEGACIES
The American Revolution intensified and transformed the problematic status
of legal – 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
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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
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206 Michael Meranze
century. They focused on two issues in particular. First, they drew on the
transatlantic critique of penal uncertainty to argue that it was the consistency
of punishment, not its physical severity, that would diminish crimes.
Second, they incorporated the growing elite revulsion at the public display
of physical suffering to argue that public punishments stimulated rather
than prevented criminality and violence. At the same time, religious dissenters
in England and their confreres in America insisted that the soul of
the condemned should become a central focus in penal practice. Whether
it was John Howard in England or Benjamin Rush in the United States,
the language of redemption and sin gained a prominence in penal thinking
that it had not had since the reform efforts of Puritans and Quakers in the
seventeenth century. Whether the motivation was primarily religious or
genteel, the body under duress ceased to be presumptively reasonable in
the penal realm. Rooted socially in the professional, mercantile, and artisanal
classes on both sides of the Atlantic, reform efforts and organizations
spread throughout the late eighteenth-century British Atlantic. In their
eyes, the body of the condemned would need to be punished in a new way.
No longer emblematic of society as a whole, the punished body would be
either avenue to the soul or target of discipline or both.
Northern legislators thus began to displace corporal and capital punishment
from the heart of penal practice. Massachusetts (1785) and Pennsylvania
(1786) began the process in the 1780s, and New York began in the
following decade, altering its codes and establishing a new prison regime
in 1796. Central to this process was a reduction in the scope of the capital
codes. Although more limited than the English code, colonial capital
codes – 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
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Penality and the Colonial Project 207
remarkable consensus that criminal punishment should be based on labor
within confined spaces. In theory, at least, the combination of labor and confinement
would serve to deter crime and, in the best cases at least, reform
character itself. Across the Northern landscape new prisons were built or
older ones reconfigured and reformed. States established new governing
boards, newspapers and journals debated the proper forms of prison organization,
and visitors from around the Atlantic basin traveled to inspect the
prisons of the Early Republic.
The new centrality of incarceration was a revolution in penal theory. In
the colonial period, jails and prisons had largely been places of temporary
confinement – 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
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208 Michael Meranze
control the everyday life of the institution, defended what they viewed as
their customary privileges and rights, and resisted efforts to control their
behavior. Arson and riots were only the most visible and dramatic examples
of a regular practice of resistance to prison rules and authority. In certain
fundamental respects, moreover, prison reform simply passed reality
by. Despite the rhetoric of the emancipatory effects of prison life, prisons
replicated the inequalities of the wider world. Most inmates were poor. In
the most important of the early prison experiments, Philadelphia’sWalnut
Street Jail, blacks were present in numbers significantly greater than their
presence in the city’s population. And racial tensions followed inmates into
the prisons.
Alongside these state efforts, the late eighteenth and early nineteenth
century also witnessed a flourishing of private efforts to reform morality.
Moral reform societies were not, of course new, but they grew in number and
took on new importance in the Early Republic. By the 1820s and 1830s,
moral reform groups composed of both men and women were remaking
the discourse of personal character and the institutions of social discipline.
Whether responding to poverty or prostitution, juvenile crime or drunkenness,
the conditions of prison inmates or the sick in hospitals, the same social
groups that had pushed for a rethinking of legal punishment also sought to
impose a new moral hygiene on society. Concentrated largely in the urban
areas of the Northeast, and in regular contact with their counterparts in
Britain, these reformers set up yet another dual system for the regulation
of morality. In their practices and institutions they aimed to deploy charity
in the interest of personal transformation in accord with an emerging
bourgeois ethos. Here was another reinvention of the seventeenth-century
Puritan and Quaker projects on the soil of the new Republic.
If the North took important, if limited, strides toward reconfiguring
the target of punishment away from the body and toward character, the
South took another course. It is not that the South did not also construct
penitentiaries. It did. Following the lead of Virginia in 1796, all of the
Southern states except North and South Carolina built new penitentiaries
before the CivilWar. But the Southern states never put the same emphasis
on prison reform nor did they make the penitentiary the center of their
penal practice. Instead, the penitentiary emerged as a subsidiary institution
supplementing the central form of criminal law – plantation discipline. In
the Deep South, almost all inmates were poor white men, accompanied by
a smattering of free blacks. In the Upper South, the majority of inmates
were poor white men with a larger minority of free blacks. Nowhere in
the South was the penitentiary the main mechanism to punish enslaved
men and women. Workhouses and prisons held runaway slaves but only
until they could be returned to their masters. Slaves remained subject to
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Penality and the Colonial Project 209
the dual system of punishment that had marked the colonial period. In
addition, although Southern states did reform their criminal codes, their
capital codes remained far more substantial than in the North.
The South, to be sure, partook in the culture of Anglo-American gentility.
And powerful arguments raged throughout the Early Republican South
over the place of public and corporal punishments. But far more than the
North, the South built on the systems of colonial labor and colonial punishments.
Whereas the Northern economies were breaking away from their
dependence on English manufacturing, the Southern economies retained
their dependent relations – 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
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210 Michael Meranze
extremely localized and divergent systems of criminal justice. Throughout
most of the eighteenth century, in contrast, the strengthened power of
imperial oversight, the spread of racialized chattel slavery, and the colonists’
desire to share in the forms and practices of British civility led to an increasing
uniformity and sophistication of penality combined with the elaboration
of dual systems of justice. Finally, following the politicization of the criminal
law and the search for a republican form of punishment that accompanied
the American Revolution, the governments of the new nation instituted a
renewed diversity of penality. Despite a shared affirmation of eighteenthcentury
civility and humanity, increasingly their efforts diverged according
to the presence or absence of slavery. States drew on different and often
competing legacies of imperial and colonial practice.
But the relationship between the colonial project and penality ran deeper
than the presence or absence of the empire or juridical diversity. As we
have seen, early America’s existence on the colonial periphery, in societies
without long-standing lines of social authority, placed the law’s power at
the center of questions of labor, maritime discipline, family order, and the
colonists’ relationships with competing sovereignties – 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.
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7
law, population, labor
christopher tomlins
English colonizers mobilized immense resources to take possession of North
America during the two centuries following their first intrusions in the late
sixteenth century. None was more important than people. Nearly 200,000
were shipped across the Atlantic during the seventeenth century, nearly
600,000 during the eighteenth. Richard Hakluyt the elder – 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
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212 Christopher Tomlins
periods, natural increase quickly outpaced immigration in accounting for
population growth. Incessant migration and rapid growth underlie the
third continuity: relentless expansion. Migration and natural increase transformed
the first little clusters of foreign strangers into teeming creole2 populations,
whose expansive mobility and constant craving for productive land
pressed unremittingly on indigenous inhabitants decimated by disease and
warfare. The British were “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.
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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
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214 Christopher Tomlins
over the same period amounted to less than 5 percent. The arrival of the
English in strength during the seventeenth century would see a catastrophic
acceleration of indigenous population decline overall and a relative shift in
emphasis to the Northeast as the locale of greatest loss. By 1700 the indigenous
population of English America had fallen by half. Eighty percent of
the decline occurred in the Northeast, where population decreased from
346,000 in 1600 to 150,000 in 1700.
Massachusetts Bay
European disease wrought such devastation on coastal groups in the Massachusetts
Bay region that travelers likened the bones and skulls of the
unburied dead to those that littered the biblical Golgotha. The New England
Charter (1620) invoked this indigenous disaster as a wonder worked
by providence on “the Sauages and brutish People there” releasing “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.
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Law, Population, Labor 215
their lands appropriated, their persons enslaved. In the better known De
Iure Belli Ac Pacis (1625), Hugo Grotius declared that war might justly be
undertaken against any who killed strangers that settled among them. This
too was an offence against nature.
The Chesapeake
Continuous settlement in the Chesapeake region began in 1607 at
Jamestown, under the auspices of the Virginia Company. Over the next
twelve years migrants arrived in an irregular trickle, the region was far less
healthy for Europeans than New England, and it was populated by wellestablished
indigenous groups with whom the intruders became engaged
in brutal, if intermittent, conflict. Mutual hatreds peaked in 1622, three
years into a period of much more systematic influx that had brought nearly
3,600 migrants to the colony. The expansion of settlement and grazing
provoked an attack on Jamestown that killed 347 colonists. In more deadly
retaliation, the English then engaged in wholesale warfare to expel Indians
from the region and secure their own permanence. As in New England, the
cycle of a growing settler population that pressed on finite resources leading
to warfare and coerced removal of indigenous groups was repeated in the
mid-1670s, using the same justifications.
By then, the Chesapeake’s white population was approaching 55,000.
Immigration had picked up after the colony was secured, particularly after
the successful establishment of tobacco cultivation. From the mid-1620s
through the end of the century more than 100,000 English migrants entered
the region. Actual population grew more slowly than immigration rates
would suggest, to a total of some 80,000 at the end of the century. From
the beginnings of settlement, the Chesapeake’s demography was dictated
by a disastrous (for Europeans) disease environment. Throughout the years
of substantial European migration, from the late 1620s through the end of
the century, up to 40 percent of the entering cohort would die during their
first two or three years of residence.
Reliance on immigration to maintain population nevertheless declined
as the century progressed, at least in relative terms. The Chesapeake’s white
inhabitants became divided into two distinct components – 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
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216 Christopher Tomlins
Chesapeake almost as long as the English, but their numbers did not begin
to increase significantly until the 1660s. In 1670 the African creole population
totaled about 2,500 (6 percent of the total non-Indian population);
a decade later Africans numbered 4,300 (7 percent). That decade had seen
the first significant importation of African slaves into the Chesapeake –
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
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Law, Population, Labor 217
17 percent of the introduced population in 1700 and peaked at 47 percent
by 1740, before declining over the second half of the century to around
40 percent. Unlike the Chesapeake, natural increase did not contribute
significantly to black population growth until after the 1740s. Throughout
the first half of the century, slave importation accounted for virtually all
growth in South Carolina’s African population.
The Middle Colonies
The middle colonies – 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)
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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.
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Law, Population, Labor 219
immobile according to the best interests of the state; this attitude was displayed
in the English case through the general assertion of sovereignty and
duties of ligeance embodied in the writ ne exeat regnum. Blackstone made
much of the centrality of “the power of loco-motion, of changing situation,
or removing one’s person to whatsoever place one’s own inclination may
direct” to the Englishman’s personal liberty, second only to personal security
in the great catalogue of absolute rights of persons secured by English
law. But it was, he noted, a right open to abridgment with sufficient cause
and the law’s approval, and his brief history of locomotion’s legalities noted
a history of restraints stretching over four hundred years to the fourteenth
century. “Some persons there antiently were, that, by reason of their stations,
were under a perpetual prohibition of going abroad without licence
obtained” – 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.
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220 Christopher Tomlins
the migration of skilled workers. Additional regulations on the migration
of artisans were enacted in 1750 and 1765, and defended by Blackstone, for
though “at present every body has, or at least assumes, the liberty of going
abroad when he pleases. Yet undoubtedly if the king . . . thinks proper to
prohibit him from so doing” it would be “a high contempt” to disobey.6
Blackstone’s affirmation of crown authority came at a time of rising
clamor over depopulation of the British Isles by unprecedented levels of
transoceanic migration following the cessation of Anglo-French hostilities
in 1760. The debates of the 1760s and early 1770s explicitly recognized
population as a resource of the nation-state – 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.
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Law, Population, Labor 221
of population within the realm. From poor relief and the control of vagrancy,
through the disciplining of labor and mobilization of the idle, to the very
enjoyment of civic capacity, the English state attempted to set the terms
of social and economic organization under which people lived, moved, and
worked.
In good part the impulse to police population was engendered by environmental
trends and upheavals. English population history long followed
a pattern of secular growth interrupted by outbreaks of catastrophic disease,
the results of which – 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
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222 Christopher Tomlins
likewise searched for localities with substantial commons and wastes or
moved to woods-pasture, fens, and forest regions, all offering chances to
practice subsistence farming and to engage in by-employments. Cities and
towns provided another destination, particularly London, whose population
increased from some 50,000 at the beginning of the sixteenth century to
some 400,000 by the middle of the seventeenth.
Increasing mobility meant increasing visibility. Inter-regional subsistence
migration spurred anxiety for the stability of social order and attempts
to tie individuals in place – 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.
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Law, Population, Labor 223
Organizing Mobility
By the time continuous English settlement in Virginia had begun, active
Crown engagement in projects to penetrate the “rude parts” of the British
archipelago – 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
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224 Christopher Tomlins
under James I? The English Parliament declined the proposition that all
natural subjects in each kingdom should be recognized as natural subjects
of the other. The immediate concern was jurisdiction over the movements
of population – 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
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Law, Population, Labor 225
the royal domain had access to the benefits of English law, interpreting
Coke’s opinion to mean that English law and liberties accompanied British
settlers. Indeed Calvin’s Case did have implications for overseas expansion,
but not for the infinite extensibility of English law. Coke’s discussion of
expansion was couched in terms of kingly conquest of alien kingdoms,
Christian and infidel, and of what a conquering king might do to the laws
of a conquered territory.9 To conquest Coke counterposed not settlement
but inheritance. Monarchs who acceded to a throne by inheritance, as James
had, could not alter a kingdom’s laws except by consent of its Parliament.
The “third case” contention that English subjects settling new lands carried
with them the laws of England by dint of birthright would not be formulated
for well over a century. Rather, Calvin’s Case established that wherever they
were within the king’s domain, his subjects might have resort to the king’s
courts with jurisdiction in that place – 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.
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226 Christopher Tomlins
laws of the accession of an alien Christian monarch. Much of what has
since been interpreted as a disquisition on the early implications of English
transoceanic expansion was at the time a careful attempt to restrain James
I’s royal discretion and known tendencies to absolutism in his inherited land
of England.
Eutopolis
Charters, then, granted migrants permission to depart, created jurisdictional
apparatuses to receive and govern them on arrival, assigned them
statuses, and established a relationship between the laws prevailing in overseas
territories and those prevailing in England. At the same time by separating
status from territory, the discourse of allegiance allowed natural
subjecthood to become fully portable. The English state thus maintained
its emigrants in a state of legal accountability. Each was a person (subject)
who could be policed overseas no less than in the metropolis through
structures of governance established for that purpose and peculiar to each
locale.
In these respects, and others too, the charters dealt in detail with the
architecture of license, power, and authority in colonial societies, from land
tenures to the establishment of markets, manors, and churches, from the
levying of customs to the distribution of arms. As such they gave expression
not merely to the institutional practicalities of state formation but to a discourse
of civic organization that Engin Isin has recently termed “eutopolis” –
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.
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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.
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228 Christopher Tomlins
Once migration got fully under way in the 1630s, therefore, it is no surprise
to find that the body of law managing the transoceanic movement of population
was law relating to servitude. Servitude became an efficient means for
controlling the process of assembling migrants, financing their passage, and
distributing them on arrival. Servitude proved, moreover, a highly flexible
legal mechanism, applicable to the several varieties of relationship forged in
the process of population transfer, from individually negotiated indentures,
through terms dictated by statute, all the way to slavery.
III. POPULATION, MIGRATION, AND INDENTURED
SERVITUDE
The legal basis of early American indentured servitude was a written agreement
(indenture) committing one party to a series of payments benefiting
the other – 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
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Law, Population, Labor 229
has called England’s “national legal sphere.”11 The Ordinance (1349) and
Statute (1351) of Labourers, adopted in response to the demographic catastrophe
of the Black Death, stand as the primary statutory expressions of the
attempt to establish cohesive government during the second half of Edward
III’s reign to hold the existing structure of society together. Before 1348,
English common law did not police agricultural or artisan labor. Such regulation
as took place was piecemeal and purely local, and dealt with labor
in terms of incidents of service arising from personal status. The Ordinance
and Statute of Labourers added parliamentary regulation to local, imposing
compulsion to work at accustomed wages on a wide range of agricultural
and artisanal occupations, setting wage standards and terms of hire, and
creating office-holders to implement the measures. So, also, did the Statute
of Artificers (5 Eliz. c.4, 1563) two centuries later, which in certain respects
once more gave labor regulation national expression. Its stated intent – 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.
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230 Christopher Tomlins
corporate control or organized interests. It was the state’s to define. The
state did so in the name of an objective – “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
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Law, Population, Labor 231
idle or surplus youth. It provided the necessary statutory definitions, and
the model of criminal compulsion enforcing a multi-year indenture as well.
Building the structure of trans-Atlantic migration on indentured servitude
thus meant building migration on an English legal foundation
designed specifically to ensure that the youngest and poorest layers of the
rural population, beginning at age 10, or even younger in the case of orphans,
were mobilized for work. Legal design was fulfilled in social outcome, for
the migrant population recruited to service in the colonies overwhelmingly
reproduced the demographic character of the population that apprenticeship
in husbandry was intended to cover. Take migration to the Chesapeake –
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.
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232 Christopher Tomlins
the mechanism by which the mobilization of population was managed
in the transatlantic case was less one of direct state compulsion than of
mercantile investment backed by legal enforcement. By specifying a salable
quantity (period) of service over and above the capacity to perform labor,
the indenture commodified the migrant laborer as an article of commerce.
Migrant servants were exported to the colonies in the course of transoceanic
trade. This status – 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.
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Law, Population, Labor 233
service or agreed tasks, but such orders peter out after the early 1640s, as the
lapse of the statutes would lead one to expect. Isolated performance orders
appear again in the 1660s, but far more often courts dealt with disputes over
hired work in a civil realm of compensatory adjustments using damages
and the apportionment of wages owed according to actual time worked
as remedies for tasks or terms of service left unfinished.14
Over the same period, meanwhile, the Assembly’s attention turned to
migrant indentured servitude, establishing it as a distinct condition of
explicit subordination to a sovereign master. Activities that implied an
infringement of the immediate master’s household jurisdiction – 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.
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234 Christopher Tomlins
fornication, and runaway punishments were all reenacted, although physical
disfigurement of persistent runaways (branding and hair cropping) was
discontinued. The default terms of servants imported without indenture
continued to vary: those above age 16 were now required to serve five years,
those below until age 24. Age on entry was to be determined exclusively
by the courts. Prohibitions on trading with servants were also reenacted. For
the first time, however, servants gained specific protections in an enactment
that ordered “compotent dyett, clothing and lodging,” required “moderation”
in correction of servants, and once more emphasized court oversight.
In 1677, masters were foreclosed from renegotiating indentures with their
servants outside the presence of a justice.
The terms confirmed during the 1660 revision remained in place for the
rest of the century. The Assembly took up the subject again, however, in
1705. This renewed attention came toward the end of a momentous period of
transition in the sources ofVirginia’s labor supply that had begun in the years
after Bacon’s Rebellion (1676), away from the youthful English servants who
had provided the bulk of the colony’s bound labor force since the 1630s
toward overwhelming reliance on the importation of enslaved Africans. The
capstone was “An Act concerning Servants and Slaves” a hybrid enactment
that established a comprehensive legal framework for the slavery that would
dominate the eighteenth century within a restatement of the statutory law
of servants that had been developed during the seventeenth.
Slaves were most likely present in Virginia within a decade of the founding
of Jamestown. But although slaves were distinguished from servants in
daily life by the permanence of their servitude, nothing in the colony’s early
laws differentiated slavery from servitude per se. In fact, slaves and servants
shared the distinction of originating outside the colony. Only when the
slave population began to grow rapidly, and – 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.
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Law, Population, Labor 235
hostages might not be enslaved. Other measures passed during the following
decade strengthened the association of Africans with the condition of
slavery while distinguishing others, notably Indians. Thus, in answer to the
question whether children “got by any Englishman upon a negro woman
should be slave or ffree,” Act XII of December 1662 provided that “children
borne in this country shalbe held bond or free only according to the
condition of the mother.” Five years later, Act III of September 1667 provided
that no child born a slave could be made free by baptism. In October
1670, Act XII held that “all servants not being Christians imported into
this colony by shipping shalbe slaves for their lives; but what shall come by
land [that is, “Indians taken in warr by any other nation, and . . . sold to the
English”] shall serve, if boyes or girles, until thirty yeares of age; if men or
women twelve yeares and no longer.”
Bacon’s Rebellion ended the exemption of Indians. Nevertheless, the
identification of slavery remained overwhelmingly with Africans from overseas.
In 1682 the Assembly pulled together the piecemeal definitions of the
past twenty years in its first comprehensive statement. Slaves were “all servants,
except Turks and Moors while in amity with his majesty, which shall
be imported into this country either by sea or by land, whether Negroes,
Moors, mulattoes or Indians who and whose parentage and native countries
are not Christian at the time of their first purchase by some Christian,
although afterward and before their importation into this country they shall
be converted to the Christian faith; and all Indians, which shall be sold by
our neighboring Indians, or any others trafficing with us for slaves.”
In 1660 the Chesapeake’s indentured servant population stood between
four and five thousand. The African population was less than one thousand.
By 1680, the African population had risen to slightly over four thousand,
and by 1705 it was approaching twenty thousand. The indentured servant
population, meanwhile, was in decline from its 1670s peak of more than five
thousand, and by the turn of the century sat in the mid-three thousands.
The 1682 and 1705 statutes thus bracket a profound alteration in the
composition of the bound labor force from youthful white migrants to
imported African slaves. Indeed, the timing of the 1705 statute appears to
be explained by the particularly rapid increase in resort to slave imports in
the face of the renewed shut-down of the servant trade after 1701. Unlike the
1682 statute, the 1705 statute comprehensively reorganized the substance
of the prevailing seventeenth century law of servitude around the new norm
of slavery.
The 1705 statute elaborated the substantive implications of the series of
distinctions already established in Virginia law between those servants who
were slaves and those who were not. Beginning from the now familiar position
that “servant” meant “imported servant,” the statute repeated 1682’s
definition of slaves as imported servants who were not Christians at their
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236 Christopher Tomlins
time of entry into Virginia (subsequent conversion notwithstanding) and
1662’s statement of matrilineal inheritance. Powers and duties common to
all relations of servitude were specified, but discriminations in treatment
and the availability of redress were prominent: for example, masters were
forbidden to “whip a christian white servant naked,” but could brutalize
or kill a slave without fear of retribution. Servants, but not slaves, could
complain to a Justice of a master’s neglect of duty, or mistreatment, or nonpayment
of wages. Servants were also held entitled to maintenance if sick
during their term of service, to freedom dues at the end of it, and to the protection
of the courts in renegotiating indentures. All were required to obey
their masters’ just and lawful commands, neither servants nor slaves were
allowed to trade without permission, and procedures for pursuit and punishment
of runaways were specified without distinction. But miscegenation
penalties and established racial categorizations of enslavement prescribed
fundamental race separation.
The creation of distinct legal categories of origin (European/African,
Christian/non-Christian) to manage the substantial shift under way in the
composition of imported bound labor suggests that native-born whites comprised
a third, wholly free, civic category. The substance of local legislation
contains further indications to this effect. For example, the 1705 statute
made no mention of artisans or tradesmen, and its requirements for certification
of servants’ freedom on completion of their terms distinguished
“servants” from “poor people . . . [seeking] emploiment” in a fashion consistent
with prior usages distinguishing bound (or formerly bound) migrant
labor from creoles. Internally the statute was a hodge-podge of clauses inconsistent
in their descriptions of the category “servant,” including within its
disciplinary reach those “become servants of their own accord here” and
elsewhere referring to servants “whether by importation, indenture or hire
here,” or in another clause “by importation, or by contract, or indenture
made here.” Conceivably all such descriptions were meant to apply only to
persons whose origins were outside Virginia – 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.
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Law, Population, Labor 237
Twenty years later, however, the transformation of the bound labor force
to one based on racial slavery was complete, and amendments adopted in
1726 altered the law dealing with runaways in a fashion that suggested
“runaway” almost invariably meant “slave.” They also added three clauses
punishing refusals to work and misrepresentations of ability on the part
of tradesmen and workmen “on wages,” but the clauses were confined in
scope entirely to migrants imported into the colony. (At this point craftsmen
were about the only category of voluntary English labor still entering
Virginia under indenture.) Thus the 1726 statute strengthened the
association of whiteness and freedom from restraint in matters of work
discipline already apparent in the 1705 statute while treating imported
white labor as a partial and temporary exception. In 1748, the Assembly
revised the 1705 provisions applying to white labor once more to make it
unmistakably a regulation of labor imported under indenture. Servants were
those who labored for others for terms set “by act of parliament, indenture,
or custom.” Hireling labor was nowhere to be found among the statute’s
categories.
The course of Virginia’s statutory servant law shows that a specific form
for indentured servitude emerged locally once the practice itself had been
adopted as the best means to facilitate large-scale transoceanic transfers of
youthful migratory labor. As Virginia’s institutional complexity increased,
the police of servitude took on a more closely observed and regulated character.
But its early form – 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.
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238 Christopher Tomlins
distanced it from creole work relations. In Virginia, explicit legal subordination
to the authority of a master became a condition identified particularly
with youth, as in England, but also with persons imported from elsewhere
to labor for the resident population, rather than with anyone who undertook
work at large. More obvious in the case of slavery’s bestowal of conditions
of comparative elevation on the unenslaved, one can see throughout the
seventeenth century qualitative distinctions – 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
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Law, Population, Labor 239
patrols and the requirement that slaves carry passes or tickets when away
from their master’s plantation, had their origins in a more general police
of movement extending to far wider categories of strangers and travelers,
intended to forestall unauthorized departures from the colony, or simply
mobility in general, among the suspicious – 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).
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240 Christopher Tomlins
September 1659, John Godfrey was found liable in damages to Francis
Urselton for failing to perform work for which he had received an advance
on his pay, but in November Urselton was non-suited when he attempted to
have Godfrey penalized £5 for his departure and ordered to perform the outstanding
service. The debt action can only have been an attempt to invoke
the Statute of Artificers’ penalties on laborers leaving work unfinished, and
the non-suit indicates the Statute was considered inapplicable – indeed no
other attempt to invoke it can be identified during the entire colonial period.
From the other side of the hiring relation, when Thomas Rumerye sued John
Norman for wages for sawing timbers, Norman defended himself by showing
that he had paid in full, excepting only an amount withheld because
Rumerye had departed before the work was completed. The defendant had
not pursued the plaintiff for his premature departure nor withheld all his
wages, but had simply refused to pay in full for incomplete performance.
The court found no cause to answer.
The Massachusetts Charter described a basis for civil authority within
the Commonwealth that rested substantially on the discretionary rule of
local leaders confined only by the injunction that colony laws be “not repugnant
to the laws and statutes” of England. Within this ambit the colony’s
police of labor sketched a set of provisions as much protective as coercive.
The first attempt at a general statement of colony law, the Body of Liberties
(1641), drafted liberties of servants that were exclusively concerned with the
servant’s welfare. The later Lawes and Libertyes (1648) approved these provisions
verbatim while adding several rather more restrictive orders adopted
piecemeal since the beginning of settlement by the Court of Assistants and
the General Court. These prohibited servants from dealing in commodities
without permission (1630), required “workemen” (paid by the day) to work
a full day “alloweing convenient tyme for foode & rest” (1633), provided
for the return of runaway servants (1635), allowed towns to assess wages
(1636), allowed payment of wages in corn (1641), and enabled town constables
to call on artificers and handicraftsmen not otherwise engaged to
work in the harvest for wages (1646). The colony never adopted “custom
of the country” provisions to deal with servants migrating without entering
formal indentures because the phenomenon was virtually unknown.
No requirement of compensatory service by runaways appeared until 1695,
when courts were granted discretion to add up to one year’s service in the
specific case of “sons and servants” deserting the service of parents or masters
to enter on board any ship or vessel.19 As a code of conduct for those
in service, the Lawes and Libertyes recalled aspects of English law but with
19A wider grant of discretion followed in 1759 that permitted courts “to order satisfaction
to be made” by runaways “by service or otherwise, as to them shall seem meet.”
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Law, Population, Labor 241
little of its detail. Only covenanted servants – 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.
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242 Christopher Tomlins
court execution to serve creditors. None of these outsiders bulked large
in local population. Indian servants are in evidence in Massachusetts, but
enslaved Indian captives were mostly shipped to theWest Indies. Imported
indentured servants were rare after the first generation and African slaves
present only in very small numbers. Debtor and convict service was not a
realistic basis for a labor force.
Children, then, were the real basis of the early New England farm economy’s
labor force. This was no English-style service in husbandry, nor was it
plantation-style indentured servitude – 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
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Law, Population, Labor 243
the 1695 act passed in 1718 prohibited “Persons Under Age, Apprentices
or Servants, Being Transported Out of the Province.”
During the eighteenth century, regulation of mobility broadened beyond
specific categories of people to address movement as a general phenomenon.
For the first hundred years, the Massachusetts population had displayed relatively
high cohesion and low mobility. Settlement had been administered
through the towns, where the regulation of entry had limited dispersal.
Even though restraints on western settlement were removed by wars to
crush indigenous resistance, the wars themselves – 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.
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244 Christopher Tomlins
The police of population in New England was thus, as in the Chesapeake,
a police of work and of mobility. Unlike the Chesapeake, however, race
provided no new hard line by which to distinguish those with civic capacity
from those without it. Instead the police of work continued to focus its
attention largely on youth, while the police of mobility concentrated on
those who could not show that their mobility was purposeful and that their
purpose was backed by resources. Together these two aspects of population
control defined subaltern others from whom the community was protected.
Punishing deviation from familiar routines of family, residential settlement,
and work cemented the latter as the definition of freedom.
The Delaware Valley
The police of population and work in the Delaware Valley provides a further
variation on factors on display in the Chesapeake and New England.
Pennsylvania was founded to be a society of Christian harmony. Along with
William Penn’s desire for a NewWorld order of “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
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Law, Population, Labor 245
of servitude throughout the eighteenth century. None ever touched wageworkers
or artisans.Wages were not regulated. Hirelings were not required
to remain in their employment. Unauthorized departure might mean at
most the forfeiture of unpaid wages.
The “eutopolitan” overtones of the proprietor’s original plans are clear.
Pennsylvania was an elaborately planned colony. Orderly settlement, the
importation and control of population through the mechanism of servitude,
detailed oversight of the performance of work, and provision for supervision
of the movements of population in general (Pennsylvania’s pass law
required all persons traveling beyond their counties of residence to carry
official certification of their place of residence on pain of incarceration as
a presumptive runaway) were all part of a single vision of controlled harmony.
But important contradictions existed between Penn’s conception of
the colony’s organization and the conditions characteristic of the English
pastoral uplands from which most of its early settlers actually came. Penn’s
nucleated agricultural villages were displaced by “sprawling townships” of
dispersed farmsteads producing a wide variety of crops and home manufactures,
typical of the pastoral uplands. The organization of labor, too, varied
from the proprietor’s model. First, the character of servant migration into
Pennsylvania did not follow the pattern that had prevailed in the Chesapeake.
In the earliest period, it was not dissimilar – 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.
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246 Christopher Tomlins
The incidence of servitude of any kind in rural Pennsylvania remained
low. Servant labor was supplementary to the immediate nuclear family, and
demand was dictated by the household’s life cycle. In the century following
settlement, fewer than 30 percent of households (usually fewer than
25 percent) ever contained servants, and rarely more than one at a time. In
the Chester County town of Goshen, for example, twenty of twenty-eight
purchasers recorded during the thirty-six years (1736–72) 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.
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Law, Population, Labor 247
region. Many migrants entering through Philadelphia stayed in Pennsylvania,
but others headed north toward New York and the Hudson Valley,
or south to the Chesapeake, or west into Appalachia and beyond. Servants
landing in Philadelphia moved into the city’s craft shops and the surrounding
farming regions, but also south to the Chesapeake or to the Jerseys and
NewYork. Runaways were pursued into Pennsylvania from the Chesapeake;
runaways from Pennsylvania headed in all directions. Geography, then, gave
Delaware Valley labor more opportunity for movement than perhaps any
other locale of settlement.
James T. Lemon has observed that Pennsylvania’s “relatively open society”
meant that people in motion encountered few obstructions.22 In fact,
Pennsylvania’s relatively open society existed as such on the basis of quite
sharply defined distinctions between freedom and restraint. As noted above,
despite Penn’s original ambitions the dispersed farm household became the
locus of social order, not the nucleated village. But the impulse to control
movement remained. Using the pass law, county authorities would regularly
restrain and incarcerate travelers unable to prove that they were not
runaway servants.
In practice, most controls of mobility focused on bound servants. In
Chester County during the period 1715–75, 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.
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248 Christopher Tomlins
Though the policing of disputes between masters and indentured servants
was no more crudely one-sided in Pennsylvania than it was elsewhere,
the courts acted within the compass of a general understanding
that, both socially and legally, the relationship of master and indentured
servant was legitimately one of authority and subordination. Emblematic
of this understanding was the courts’ almost mechanical processing of runaways,
which exemplified the key characteristic of servitude, the legality
of restrained mobility. But court intervention was conditioned on the existence
of an indenture. In May 1732, for example, Jonathan Strange sought
redress against one Humphrey Reynolds, who had neglected his promise to
“faithfully and truly serve him” for three months in consideration of wages
advanced by the plaintiff.23 But Strange’s action was a civil suit seeking
damages for Reynolds’ failure to perform, not an invocation of the criminal
penalties applied so routinely to indentured runaways. And unlike the
summary disposal of those runaways, Strange’s suit (like most civil suits in
Chester and elsewhere) simply languished on the docket (in this case for
three years) before being composed, privately, by the parties themselves. In
the same way, the court found that Martha Liggett was free to depart the
service of James Caldwell without penalty because no indenture bound her;
nor could Mary Broom be punished for “disobedience to the orders” of her
master, for she too was not bound.
Whether workers on wages remained liable to loss of earnings in the
event they broke agreements to serve – 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.
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Law, Population, Labor 249
paid because he “had not compleated his work according to Bargain.” Riley’s
decision was that payment was owed for what had been done – “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.
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250 Christopher Tomlins
Transfers of population were crucial to the success of English colonizing
in North America because controllable labor was the key to permanent
occupation. Hence it is unremarkable that early modern labor law – 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.
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Law, Population, Labor 251
(unregulated) freedom. In this sense, “None but negers . . . ” could indeed
emerge from the colonial era’s legal culture of work with the appearance of
transcendent civic fact, particularly after the Constitution declared those
bound for a term of years to be “free” for at least some of its purposes.
During the first half of the nineteenth century the quotidian claim became
increasingly hollow. Rather than atrophy, the ambit of master and servant
grew until it absorbed the employment contract as a whole, underwriting
the employer’s right and capacity, simply as one who had contracted with
another for the performance of services, to assert magisterial powers of
management, discipline, and control.
Ironically, given the American Revolution, English influence was felt
strongly in this nineteenth-century alteration of the Republic’s master/
servant relationship. This was not a matter of statutory borrowing.
Rather it resulted from the influence of authoritative English common law
reports and treatises – 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.
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252 Christopher Tomlins
disciplines absent in the previous century. In the antebellum South, the
status of “free labor” remained qualitatively distinct from slavery, but white
workers found the claims to legal privilege and civic status they had built
on their difference from slaves increasingly vulnerable. Indeed, what crept
into their debates with local elites were intimations of a willingness to work
as hard as slaves in order to keep racial privilege within their grasp.
After the CivilWar, this antebellum common law regime was joined by
new measures that greatly intensified the police of population in the market
for labor and at work, underscoring the homologies of coercion and contract,
North and South. In the South, criminal sanctions against idleness and
vagrancy forced freedmen into wage work. In the North, new laws reconfirmed
the criminality of purposeless mobility, prescribing imprisonment
and forced labor for vagrants and beggars. Once secured in an employment
relationship, the common law of master and servant confronted the
employee with the reality of employer-designed discipline. If “free labor”
in the colonial era had come to mean the absence of “public or private regulation,”
a century into the era of the Republic, free labor was apparently
quite compatible with both.
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8
the fragmented laws of slavery in the
colonial and revolutionary eras
sally e. hadden
The striking fact about slavery in the sixteenth, seventeenth, and eighteenth
centuries was its universality. Enslaving humans was legal throughout the
western hemisphere in the early modern period, sanctioned by every major
legal system in operation there. The right to hold another person in bondage
depended precisely on legal definitions of who could be enslaved within a
given civilization – 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
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254 Sally E. Hadden
North American mainland between 1600 and 1808, when the importation
of African slaves finally became illegal under U.S. law. Slavery and the laws
that sanctioned it thus bound together disparate nations belonging to the
Atlantic world and provided the rationale for the coerced migrations of
millions who left behind homes and families for uncertain futures wherever
their owners might force them to go.
From these imported, involuntary migrants grew the massive unfree populations
that fueled America’s growing economy in the antebellum era. By
1810, nearly 1.2 million slaves were living in the United States; by 1860,
that number had reached 3.9 million, with laws designed to restrict virtually
every aspect of slave life. By comparison, slavery in the colonial and revolutionary
era, whether in New England, the Chesapeake, or the Caribbean, was
a much smaller affair, and the laws pertaining to slavery were more scattered
and less organized. To understand slave law in seventeenth- and eighteenthcentury
North America, one must forget the full-blown plantation society
that the antebellum South would become, and reach back to an era when
societies with slaves (communities in which slave labor was present, but
non-essential) were more common than slave societies (communities in
which slave productivity was the economic base). In other words, slavery
before 1800 differed significantly from antebellum slavery, and the same was
true of laws governing the enslaved in each period. Antebellum slave law
developed mostly through case law, and its main challenge was reconciling
conflicts of comity between Northern and Southern law – 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.
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 255
The widespread support for slavery in the colonial period gradually disappeared
in the revolutionary era, leading to a different form of fragmentation
in slave law. As colonies gave way to states, America’s founding generation
divided on the morality of enslavement. Lacking a national consensus, sensible
that state laws covered most foreseeable situations, federal lawmakers
crafted no overarching national law of slavery, but instead left the matter of
slave law to individual states. The movement toward gradual emancipation
in Northern states and increasing penalties for those involved in the international
slave trade created a rift between the North and South over the
general acceptability of bondage. As Congress outlawed the African slave
trade and new laws banned slavery north of the nation’s capital, the trend
toward nationwide acceptance of slave law began to reverse itself. Though
new states from the Deep South entered the Union having adopted the slave
codes similar to those of South Carolina and Virginia, each additional state
admitted placed additional strain on the principle of comity, strain that
would only grow in the antebellum era.
The historical analysis of slave law in America, whether in the colonial or
the early national period, has tended to focus on the ascendancy of England
and English common law, obscuring the multiplicity of legal systems that
actually contributed to slave laws in America prior to 1800. Likewise, analysis
has emphasized positive law – 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
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256 Sally E. Hadden
in religious tradition between enslaver and enslaved. A fifteenth-century
imam wrote that “slavery is a humiliation and a servitude caused by previous
or current unbelief and [has] as its purpose to discourage unbelief.”
Like Spanish and other legal systems derived from Roman law, Islamic law
encouraged manumission (‘itq), and slaves could gain their freedom through
several methods: self-purchase by contract (mukataba, comparable to Spanish
coartac´ıon); declaration by an owner to take effect on his death (tadbir) or a
simple declaration of freedom in the present tense (the slave is immediately
freed); or release of the slave as penance for a master’s wrongdoing. Under
Muslim law, an enslaved woman who gave birth to her master’s child would
eventually be freed, and the child was automatically free.
Elsewhere in Africa, other thriving legal traditions regulated the slave
trade. Unlike Muslim law, among mostWest African tribes the legal status
of the enslaved depended not on religious difference, but on tragic, catastrophic
events: wars and slave raids converted once-free men and women
into chattel. The legal presumption that one could identify a slave by race,
which came to dominate American law by 1800, had no direct parallel
in African practices. The boundary between free and unfree also seemed
mutable in West Africa, for multiple definitions of enslavement existed
simultaneously among tribes of Senegambia, the Bight of Biafra, the Bight
of Benin, and Loango and Angola (the principal source regions for Africans
who became slaves in America). Among the Igbo people, there were religious
slaves (Osu), slaves of men (Oru or Ohu), and pawn-slaves. Religious
slaves almost never attained their freedom, for their service was pledged
to a god. Bondsmen belonging to men might readily alter their status
through self-purchase or intermarriage with the master’s family. Pawnslaves
worked only until a specific debt was repaid and could not be sold,
given, or traded away by the original debt holder. Laws affecting the treatment
of slaves in Africa varied by tribal custom and region, but freedom
and assimilation into the enslaver’s family were often provided for through
law or tradition. Since female slaves were preferred by many African tribes
(for both their productive and reproductive capacities), these assimilation
laws were routinely invoked. Preferences for emancipation and assimilation
did not find their way into colonial laws of British North America,
although enslaved African women may have wondered whether European
colonists provided analogous legal means to change status from unfree
to free.
The laws of slavery known to Africans had little impact on the laws
created by their European enslavers, whose most frequent defenses of the
enslavement of others were biblical texts or references to natural law and
writers from antiquity. Few Europeans criticized the institution of slavery
on theoretical grounds before the eighteenth century, and many defended
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 257
it as the result of just wars. Although Christian tradition could readily be
turned against slavery, in the early modern period Portuguese or Spanish
slave raiders more frequently used it – 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.
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258 Sally E. Hadden
commonly associated with slavery. The closest analogy in English law was
apprenticeship law, by which a young person wishing to learn a craft was
bound by indenture to a master’s service for a term of years. During the
period of service, the apprentice was under the full legal control of the master,
who could punish him for neglecting service, absconding, or marrying
without consent. However, a master who failed to provide food, clothing,
or training to the apprentice could be fined and the apprentice freed from
his indentures. Indentured servants brought from England labored alongside
African slaves in the Caribbean and British North America through
the mid-seventeenth century, and early colonial statutes frequently refer
to both groups together when describing punishments for misbehavior or
running away.
English law offered a few models for slave laws in the western hemisphere,
but Spanish law would be the source for most early New World slave
laws. In Europe, canon law and Roman civil law were engrafted into Las
Siete Partidas, the thirteenth-century Spanish code compiled by Alfonso
X of Castile that would serve as the legal foundation throughout Spain’s
empire in the Americas, including Spanish territories that became part
of the United States like Louisiana, Texas, and California (and it remains
Spain’s central legal authority to the present day). An indication of slaves’
lowly status in Spanish society is that laws about lawyers, women, and
even abandoned children all precede laws about bondsmen, found in the
Fourth Partida. Slaves were defined as captives of war “who are enemies
of the faith,” that is, non-Christian, or the children of female slaves of
any faith. As in Africa, most slaves in Spain could not be distinguished
racially from their masters, and Spanish law did not define servitude racially.
The Spanish master was endowed with nearly complete authority over an
enslaved person, but was restricted from killing, maiming, or seriously
injuring a bondsman. Except for these few injunctions, Spanish codified
law was silent on many points – the proper religious instruction for slaves,
for example, or their right to marry, or their rights to food, clothing, and
shelter at their owners’ hands. These omissions resulted from the relatively
small population of bondsmen found in early modern Spain, and possibly
from the overarching presumption that slavery was not intended as a lifelong
status, but a temporary one. Title XXII of the Fourth Partida specified
numerous methods by which a slave could obtain her freedom, for strong
presumptions pervade the code that “all creatures in the world naturally
love and desire liberty,” and that a Christian master would grant freedom to
a worthy slave. These presumptions in favor of freedom over slavery would
find their way into Spanish colonial laws, but would be lost in the sixteenthcentury
transmission of such laws from Spanish to English settlers in the
western hemisphere.
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 259
II. SLAVE LAWS OF THE CARIBBEAN
The Europeans who settled the NewWorld arrived with varying degrees of
knowledge of slave law and various justifications for those laws. The French,
Portuguese, and Dutch, like the English, set up colonies on Caribbean
islands or the mainland, but at the outset had few laws and no comprehensive
code to regulate enslaved persons. French coutumes proffered no law of slavery;
the Ordena¸coes Filipinas, the Portuguese legal compilation of 1643, contained
little more. The States-General assembly of the Netherlands issued virtually
no laws about slavery; any slave arriving in the Netherlands was automatically
free. The assembly preferred to leave such matters in the hands of the
privately controlled Dutch West India Company, which in turn left slave
control and punishment largely in the hands of individual masters. Only the
Spanish came to the western hemisphere relatively well equipped. Their Las
Siete Partidas mandated that children follow the condition of their mother,
prohibited atrocities by masters, and preferred emancipation. Regardless
of nationality, many European colonizers shared in the Christian assumption
that the “curse of Ham” justified the enslavement of Africans. Though
scholars such as David Brion Davis have questioned whether this specific
rationale actually swayed Europeans in the sixteenth and seventeenth centuries,
Winthrop Jordan and others have shown convincingly that racism
and greed persuaded many European enslavers to prey on Africans as slaves
to export to the NewWorld.
As the size of the Spanish empire in the western hemisphere grew by leaps
and bounds, so too did its slave population.With it came local regulations to
control slave activities and mandate proper behavior by slave owners. King
Philip IV ordered that all colonial Spanish law – 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.
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260 Sally E. Hadden
It is known, however, that Spanish slave law expanded dramatically and
encompassed many more subjects than did English law for bondsmen. Historian
Elsa Goveia, expert on slave laws of the Caribbean, has asserted that
“[t]he English government never, until the nineteenth century, showed so
careful and sustained an interest in the subject of slave regulations as did
the government of Spain from earliest times.”
Despite the extraordinary diversity of slave law, each island, each
colony developed laws to regulate the conduct of bondsmen. By the midseventeenth
century, some islands colonized by the English, like Barbados,
had enacted their own slave codes (1661). In part, code development was
connected with the successful transition to raising a cash crop – 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
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 261
slave passes. In effect, this made all white Barbadians responsible for restricting
slave movement, a pattern that would be repeated elsewhere in English
slaveholding colonies. Bondsmen were expressly forbidden to leave the plantation
on Sunday – the one day when all slaves might expect a respite from
work. The code offered slaves incentives to assist in recapturing fugitives:
runaways would have to avoid not only whites, but their fellow bondsmen
too. Lacking a police force, seventeenth-century white Barbadians enlisted
all residents, white and black, against slave runaways. Fugitives, they knew,
might lead a slave revolt; punishments for insurrectionary violence included
the death penalty. If rebellious slaves were executed, however, the code specified
that owners would be monetarily compensated for their property. Such
was the pecuniary value of slaves that the colonial government effectively
insured masters against loss from state-mandated destruction of mutinous
bondsmen.
The Barbadian code provided that slave crime, up to and including murder,
would be tried not by jury but by a panel of justices of the peace and
several landholders, typically all slave owners. Penalties included whipping,
nose slitting, and branding and escalated for each subsequent offense up to
capital punishment. In reality the majority of slave crimes never reached
these tribunals, for masters had both the right and obligation to control
their bondsmen and could inflict whatever penalties they wished. The 1661
code offered no sanctions against masters who maimed or even killed slaves
in the course of punishment except for a fine if it could be shown the master
acted out of malice, a provision honored mostly in the breach. This lack of
oversight into owners’ behavior was consistent with the rest of the code,
which included few requirements covering treatment of slaves. Food, shelter,
and medical care were left “to the Discretion of the Owner.” Relying
on masters’ own financial self-interest to guide their care of bondsmen, the
code’s creators sought only to control slaves, not slave owners. That masters’
self-interest could not be relied on becomes apparent when one looks at the
revised code of 1688: Barbadian lawmakers began to penalize owners financially
for slaves convicted of crimes that resulted from systematic starvation.
If bondsmen stole or murdered due to hunger, their masters were “in some
measure guilty of their Crimes,” and the colony would consequently lower
the compensation paid after the slaves’ executions.
The slave code of Barbados repeated several key features found in Spanish
and French colonial slave laws: higher penalties for crimes committed by
slaves than by free persons, extreme penalties for participating in insurrections,
and even the creation of a code itself rather than continuing to rely
on individual slave laws. But in governing masters’ behavior, the English
colonists did not follow Spanish or French example. Historians Frank Tannenbaum
and Carl Degler have tracked the tendency in Spanish colonial
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262 Sally E. Hadden
laws to provide greater protections for bondsmen than English or, later,
American law. Spanish slave owners were required to provide adequate
food, clothing, and religious instruction to their bondsmen. If slaves wed,,
masters were required to honor the marriage vow and keep the couple
together. French slave laws specified food rations for slaves and protected
the Sabbath: no slave was to work on Sunday or any holiday observed by the
church. The 59th article of the Code Noir even stipulated that emancipated
slaves were to enjoy the same rights and privileges as the freeborn. Whether
such stipulations mitigated the harsh practices of slavery within the French
and Spanish empires is unclear, but no such demands or expectations were
made on Barbadian slave owners. Laws protecting slaves may well have been
ignored whenever masters chose, but their creation itself says much about
societal priorities. Ultimately, Spanish and French colonial laws, influenced
by the humanitarian efforts of the Catholic church, or by legal presumptions
found in the Recopilaci´on de Indias or the Code Noir, worked in favor
of treating slaves humanely, with an eye toward the eventual manumission
of bondsmen. No such religious or cultural influences, or common law
tradition, informed the legal choices made by English colonial lawmakers.
The creation of a slave code did not preclude the creation of other laws to
regulate bondsmen. Indeed, the enactment of a code may have made more
obvious the areas where deficiencies existed in controlling slaves. Two specific
matters surface repeatedly in later Barbadian laws and would reappear
on the North American mainland once white Barbadians began migrating
to South Carolina in the 1670s. Huckstering, the process by which slaves
sold goods at market, grew as the agricultural productivity of the island
increasingly focused on sugar. In an island society that exported a wealthmaking
cash crop by the ton, white farmers had little time or incentive
to raise enough foodstuffs to support themselves or their slaves. Through
the seventeenth and eighteenth centuries, plantation owners readily turned
to the thriving slave-dominated market culture where one could purchase
fish, fruit, and other agricultural products that bondsmen caught or grew in
their few unsupervised hours. Yet masters resented the prices charged and
voiced suspicion that goods vended had been stolen by their vendors. The
huckstering market also offered support to the island’s few free blacks, who
represented a security threat from the masters’ perspective. Consequently,
repeated attempts were made to regulate, curtail, and even end the slave
markets, although with little apparent effect, for huckstering had become
too integral to the island’s economy. Anti-huckstering laws appeared in
various guises – laws regulating town sanitation, establishing days and
times when markets could legitimately convene, supervising town officers,
and creating market officials. Such regulations may appear to relate solely
to towns and markets, yet embedded within them were many measures
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 263
designed to dominate slave behavior. Characteristically overlapping and
sometimes contradictory, the nature of these laws suggests that Barbadian
lawmakers never managed to work out how to govern this aspect of slave
life. Both their multiplicity and repetitiveness serve as a reminder that the
laws passed for slave control were as much normative statements about what
white legislators wanted to happen as guides to what actually transpired
within slave culture.
A second deficiency in Barbadian law is suggested by lawmakers’ recurrent
complaints that whites were failing to enforce the slave code and control
wayward bondsmen. Reliance on private, individual enforcement of
slave laws left the job to all whites: clearly, some simply did not bother.
While bondsmen certainly learned to distinguish between whites who
would enforce slave laws and those who would not, it took the Barbadian
assembly some time to recognize the deficiency. Eventually, lawmakers
began to transfer some power over slaves to third parties, authorizing
private slave catchers, and later militia-based slave patrols, to step in and
control slave behavior when owners and other whites would not. These
third-party enforcers of the law became essential as absentee ownership of
both land and slaves in Barbados grew more common. New legal provisions
were necessitated to empower slave hunters and quasi-police forces
to question, capture, and punish slaves in the absence of their masters. As
the dichotomous nature of master-slave relations was reoriented to include
state-mandated officials who could and did act in the place of owners at
the behest of other white community residents, protections for slaves from
abuse at the hands of non-owners, as well as compensation statutes to repay
owners for damaged slaves, would enter the law. Slave catchers and slave
patrols would also appear in British mainland colonies: after emigrant Barbadians
began arriving in South Carolina in the 1670s, they set out to craft
laws that drew on their Caribbean experience.
III. SLAVE LAWS ON THE NORTH AMERICAN MAINLAND:
INITIAL LEGISLATION
In the seventeenth and eighteenth centuries, slavery came to be acknowledged
as legal and legitimate in all British mainland colonies. In 1700,
approximately 30,000 slaves lived in British North America, almost 90
percent of them in the South; by the Revolution, some 450,000 enslaved
persons lived in the colonies, with more than 400,000 (the same proportion)
in the South. In contrast, the population of slaves in New England was
quite small, approaching 4,000 in 1715, and clustered near the seacoast.
But although the population of slaves was heavily skewed toward the South,
at the time of the American Revolution bondsmen could be found in every
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264 Sally E. Hadden
colony. Bondsmen frequently lived in Northern port towns like New York,
Newport, and Boston where their concentrated numbers led to specific laws
regulating their behavior, though not always comprehensive slave codes.
Historians of slavery in colonial America have focused too much on slave
codes. Much of the law binding enslaved persons developed in piecemeal
fashion, in multiple places, and in diverse types of legislation. Though
nine of the thirteen mainland colonies that would become the United
States enacted slave codes in the seventeenth and eighteenth centuries
(Massachusetts, Rhode Island, Connecticut, and New Hampshire were the
exceptions) single, topic-specific slave laws began to appear shortly after
the first Africans arrived at Jamestown in 1619. Colonies without slave
codes still had laws to control bondsmen. Both the development of cash
crops, like tobacco in Virginia or rice in South Carolina, and the colonial
world’s dire shortage of labor promoted the purchase of Africans in growing
numbers. Whether out of racism, greed, or fear, white mainland colonists
enacted slave laws to control African laborers.
The earliest mainland laws were created by Virginians, who drew on
Caribbean ideas while also inventing their own laws to compensate for
the absence of English models. Well before white Barbadians migrated to
South Carolina, Virginia’s assemblymen had begun passing laws regulating
Africans in many areas of colonial life. Their laws prohibited Africans
from keeping weapons (1640), defined the status of mulattos (1662), and
declared that baptism did not automatically grant emancipation (1667).
That such laws were deemed necessary at all suggests that some slaves did
keep firearms, that whites and Africans (and Native Americans) engaged
in interracial intercourse, and that Africans believed becoming Christian
would alter their status from slave to free. In Virginia, the cultural boundary
dividing slavery from freedom was crossed with greater ease before the
mid-seventeenth century, perhaps due to the presence of so many European
indentured servants and so few Africans in the earliest years of the
Old Dominion’s colonization. Indeed, it was not clear whether Africans in
Virginia had to serve only for a term of years (like an indentured servant) or
for life. Nor was it clear what the status of a child born to African parents
would be. The 1662 statute, on mulattos, made the boundary line sharper
and less easy to cross. “Whereas some doubts have arrisen whether children
got by any Englishman upon a negro woman should be slave or Free” the
assembly declared that “all children borne in this country shalbe held bond
or free only according to the condition of the mother.”3
3William W. Hening, The Statutes at Large; Being a Collection of All Laws of Virginia from
the First Session of the Legislature, in the year 1619, 13 vols. (New York: R. & W. & G.
Barton, 1809–1823), 2:170.
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 265
This statute, and the 1667 law on baptism, drew some of their inspiration
from lawsuits commenced by bondsmen named Elizabeth Key in
1655/1656 and Fernando in 1667. In each case, Elizabeth and Fernando pursued
appeals through the Lower Norfolk and Northumberland county courts
and higher Virginia tribunals to gain their freedom. Fernando claimed that
he had been a Christian for years and that he should serve no longer than
an English indentured servant. The loss of General Court records leaves
the final disposition of Fernando’s case unknowable. More is known about
Elizabeth, daughter of a slave woman and a free man, who petitioned for
her freedom based on the common law tenet that children inherited their
father’s condition, that she was a Christian, and that she had served a period
of years equivalent to an indentured servant. Although her initial trial
ended unsuccessfully, her attorney appealed to the General Assembly, and
the burgesses ordered a retrial, at which time her so-called owners did not
appear and Elizabeth won her freedom. That Elizabeth and Fernando both
petitioned courts, in different counties, to have their Christianity considered
when judging their status as slaves suggests that Africans who became
Christian in the earliest period of Virginia history could indeed win their
freedom. This ran counter to the long-term agricultural and financial needs
of Virginia planters and helps explain the passage of a 1667 law preventing
conversion from freeing a slave. Likewise, Elizabeth’s common law claim
that her father’s status insured her freedom (and other cases like it) most
likely spurred Virginia’s assembly to pass the 1662 law declaring that children
would inherit their mother’s status (partus sequitur ventrem). This civil
law doctrine, which spread through the English colonies, trumped common
law for the financial benefit of slave owners and simultaneously stifled
lawsuits based on paternity – always less certain of proof than maternity
in an era before DNA testing. After 1662, an African in Virginia claiming
freedom would have to prove his mother was free at the time of his birth
or, like Benjamin Lewis in 1691, produce a written set of indentures that
ended his servitude after a term of years.
While white colonists in Virginia were sorting out who would or would
not remain in bondage, colonists elsewhere were explicitly proclaiming their
(short-lived) aversion to slavery through law. Massachusetts, Rhode Island,
New York, New Jersey, and Georgia all initially had laws that marked slavery
as an unwelcome institution in their colonies. Massachusetts in 1641 (in
the Body of Liberties) and Rhode Island in 1652 passed the earliest and apparently
most stringent laws barring slavery, but exceptions existed and in any
case the laws never stopped slave trading in either colony. Massachusetts
still permitted the sale of “captives taken in just warres,” which included
Native Americans, and Rhode Islanders developed the largest slave trading
fleet in North America, moving captives to ready markets throughout the
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266 Sally E. Hadden
Atlantic world. New York’s law, likewise, had little impact: in 1644 the
Dutch West India Company received a petition from eleven men it held
in bondage in New Amsterdam, asking for their freedom. The company
responded by granting half-freedom; the men were released but required
thereafter to give a portion of their produce to the company annually and
to work for wages whenever the company needed them. Georgia’s law banning
slavery actually emanated from the colony’s English trustees after its
founding in 1732. Free labor, it was thought, would benefit the colony more
than the productivity of slaves. But colonists living in Georgia complained
that they could not prosper like their South Carolina neighbors as long as
slavery was prohibited and repeatedly urged the trustees to lift the ban on
slavery. When the colony transferred from proprietary to royal hands in the
1750s, white colonists jettisoned the ban on slavery and adopted the South
Carolina slave code (written in 1740) virtually wholesale.
Generally, laws prohibiting or limiting slavery fell into disuse. Slave
owners in each of the five colonies where they existed simply ignored them.
By the end of the seventeenth century, for example, New York City had
become home to the largest enslaved population in the North. In 1706, New
Yorkers passed a law specifying that Negro, Indian, and mulatto slaves who
were baptized would not be emancipated, just as Virginia slaveholders had
done some forty years earlier.
Anti-slavery sentiment – 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
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 267
prevent persons freed from becoming a welfare charge to the community.
Maryland passed a similar law in 1752 to prevent owners from leaving
elderly and disabled slaves dependent on the general community for their
support.
It is important to note that “slave” law tended always to intertwine with
laws meant to control all “marginal” groups. In town governance statutes,
colony after colony created night watches and curfews to protect cities
against suspicious fires, illegal slave gatherings, and the questionable activities
of Native Americans and free blacks. Charles Town (later Charleston),
South Carolina, had such a night watch by 1671, and Savannah, Georgia,
had one after 1759. In 1703, Massachusetts enacted a curfew providing
that no “Indian, Negro or Mulatto Servant or Slave may presume to absent
from the Families whereto they respectively belong” after nine o’clock at
night. Violators were to be imprisoned and whipped and then returned to
their owners. In 1732, the Long Island town of Brookhaven forbade slaves
to go out at night at all. In 1737, Maryland likewise prohibited Negroes
or slaves from “Rambling, rideing or Going a Broad in the night.” Most
colonies mandated that bondsmen carry passes when they left their masters;
Connecticut began requiring passes in 1690 and in 1723 forbade nighttime
movement after nine o’clock with “An to prevent Disorder of Negro
and Indian Servants and Slaves in the Night Season.” That curfews, night
watches, and passes became necessary indicates that Africans and African
Americans were indeed out and about after dark and were frequently away
from the direct control of white owners. Whether the laws prevented nighttime
movement or slowed down slave mobility most likely depended on the
locality and relative degree of white supervision found there. That so much
law was directed at controlling these marginal groups suggests that white
lawmakers prized order highly, and feared or mistrusted what a society
without order might become.
Mainland colonies also encountered the same problem that confronted
white Barbadians: servants and slaves selling goods that might or might
not belong to them. In 1708, for example, New York barred bondsmen
from selling oysters. Some colonial lawmakers recognized that laws might
regulate slave huckstering more effectively if they targeted the purchasers of
goods. In 1708, Connecticut began penalizing free persons who purchased
any goods from “Indian, malattoes and negro servants” by setting the fine at
double the value of the item purchased. A 1741 North Carolina law prohibited
any person from trading goods with slaves. South Carolina lawmakers
had adopted a similar law to prohibit servant and slave huckstering as early
as 1687.
Laws treating slaves and indentured servants in similar fashion when it
came to nighttime meetings or selling goods should not be seen as conflating
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268 Sally E. Hadden
the two groups. Though both were seen as marginal and hence “dangerous,”
other legal distinctions still set them apart. Servants retained the right to sue
in their own behalf (rather than through an attorney, guardian, or owner),
could give evidence in trials, hold property, and legally marry. All were
actions denied to slaves in the Atlantic seaboard colonies.
Just as they granted servants and slaves different legal capacities, owners
and legislators also distinguished between types of slaves. In the wake of
the Yamassee war of 1715, Indians from the South were exported to New
England for sale. Their violent behavior eventually caused Massachusetts
lawmakers to prohibit their importation to the colony for sale as slaves.
Connecticut took similar steps in 1715, blocking the sale of “Carolina
Indians.” Later, following the revolt on Saint Domingue (Haiti) in 1793,
South Carolina, Virginia, and other Southern states barred the importation
of slaves from the Caribbean island. Fearful that they would spread contagious
ideas about freedom, white lawmakers sought to “quarantine” Saint
Domingue slaves and prevent their contact with mainland bondsmen, who
might otherwise become “contaminated” with ideas about freedom borne
from violence.
Though Native Americans were caught up in the English colonies’ regulation
of marginal populations, and in colonists’ slave trading through
warfare both in New England and Carolina, the use of Native Americans
as slaves in the English colonies did not compare numerically with the
far higher incidence of African slavery. Native American slavery persisted
longest in Spanish-controlled colonies west of the Mississippi, where slave
law developed in relative isolation, cut off from English legal influences as
well as information about formal regulations emanating from either Madrid
or Spanish colonial outposts in the Caribbean. Slave raiding by tribe against
tribe remained common through the seventeenth and eighteenth centuries,
and even Spaniards ended up as slaves following native revolts against European
colonization in 1680 and 1696. Pawn-slaves also appeared in native
societies, as weaker Indian groups sometimes surrendered to stronger neighboring
tribes in return for food, shelter, and protection. Racial boundaries
between enslaved and enslaver seemed thin at best in the region, and among
colonizers, a lack of formal legal knowledge prompted improvisation. In
remote regions of Northern New Spain (near current-day northern Mexico,
Texas, and New Mexico) in the seventeenth and eighteenth centuries, the
absence of lawyers and trained judges turned local military officials into
adjudicators of the law on all matters, including slavery. When possible,
these military commandants referred to legal manuals if they had them, but
the absence of books in many outposts doubtless increased the haphazard
quality of legal knowledge regarding slavery throughout the region. Pressure
from Catholic priests and native peoples who comprised the bulk of
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 269
the slave population may have persuaded military leaders to continue the
Spanish legal presumption in favor of freeing enslaved persons, but more
research is needed to affirm this conclusively.
IV. SLAVE LAW ON THE NORTH AMERICAN MAINLAND:
CODES AND CRIMES
In Louisiana, France governed its colonists and slaves from 1699 until
1766, when the Spanish took control of the colony. The few slaves present
there in 1715 were Native Americans, although Africans were imported
in significant numbers in the years that followed. By 1731, about 6,000
African slaves worked in French Louisiana. The majority of Louisiana’s population
remained both black and enslaved through 1780. Piecemeal laws
issued from Paris and the 1685 code originally used in Saint Domingue
together inspired the creation of the Code Noir, designed to regulate slaves
and masters in the French Caribbean and Louisiana. Like the Recopilaci´on
de Indias, the Code Noir was more compassionate than the slave codes later
created by colonists in British North America, and its numerous references
to religion betray its origins in a Catholic society. For example, masters
were ordered to baptize their slaves, keep enslaved husbands and wives
together following marriage, and provide regular religious instruction for
bondsmen. Recognizing slaves’ basic humanity and personhood, the Code
Noir nevertheless placed many restrictions on the enslaved. Bondsmen, for
example, could not possess firearms and were prohibited from trading any
goods without their masters’ consent. Just as in Massachusetts, Maryland,
and Virginia, sexual contact between blacks and whites in Louisiana was
outlawed. Whites who attempted to marry slaves or free blacks were subject
to fine and punishment, and priests were forbidden to perform marriage
rites for interracial couples. Local ordinances passed in New Orleans eventually
supplemented this imperial system of laws. Despite the penalties for
interracial sex, cross-racial couples continued to flout the law through the
eighteenth and nineteenth centuries.
Like codes created elsewhere in mainland colonies, provisions of the Code
Noir also focused on slave crime, specifying the penalties to be imposed on
slaves found guilty of assault, arson, theft, and murder. Indeed, the various
codes created by mainland lawmakers all focused heavily on slave crime
and punishment because the codes’ white creators assumed slaves were
inherently lawless. South Carolina’s second slave code, enacted in 1696,
declared that bondsmen had “barbarous, wild, savage natures” that must
be restrained. In Louisiana, capital punishment could be used if a slave
struck her owner or a member of her owner’s family. Typically the first
punishment for theft or possessing weapons was whipping, nose slitting, or
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270 Sally E. Hadden
ear cropping, whereas a second or third offense might merit branding or even
death. Murder or insurrection could attract the death penalty immediately.
Codes frequently resulted from an effort to organize the sometimes incoherent
mass of individual laws passed by legislatures in previous decades. As
each colony adopted additional legislation to regulate slaves’ conduct, the
need to collate and systematize slave laws became stronger. Growing slave
populations also spurred the development of codes: lawmakers in South
Carolina (1690/1691 and 1696), Virginia (1705, 1723), and New York
(1712) enacted slave codes before all other colonies in part because their
enslaved populations were established early and grew rapidly. New Jersey
(1713), Maryland and North Carolina (1715), Delaware (1721), Pennsylvania
(1725), and Georgia (1755) all created slave codes in later years.
Georgia’s code was Barbadian at one remove: the colony’s legislators borrowed
the 1696 South Carolina code (largely based on the revised Barbados
code of 1688) almost in its entirety. Codes were often published as separate
pamphlets, sold individually by printers to interested whites and magistrates
charged with enforcing their provisions. Some legislators may have
pushed for codification to simplify conflicting provisions and to publicize
slave laws to recent immigrants or those unfamiliar with the scattered, fragmented
laws affecting bondsmen. In other instances, codes were updated or
renewed in the wake of events perceived as disastrous by the white community.
Following the Stono rebellion of 1739, in which twenty-five whites
died, South Carolina lawmakers revised and republished its slave code in
1740. North Carolina followed suit in 1741, as did Virginia in 1748.
Typically, colonial slave codes stipulated that slavery was inherited
through the mother (partus sequitur ventrem), lasted for life, and applied presumptively
to Africans, mulattos, and Native Americans. Codes repeated
and sometimes expanded on earlier laws that forbade interracial sex and
marriage; Maryland, Virginia, North, and South Carolina all stipulated
penalties for white women giving birth to mixed-race children in their
codes. Likewise, laws that denied manumission to slaves following baptism
or conversion usually were incorporated into slave codes. In the case
of Virginia, for example, the 1667 law enacted after the Fernando and
Elizabeth Key cases was included in Virginia’s 1705 slave code. Some codes
specified the precise manner by which manumission might be undertaken,
usually making it quite difficult. Elderly or infirm slaves often could not be
freed, and several colonies like New Jersey and Pennsylvania required the
would-be emancipator to post high bonds to guard against a former bondsman’s
indigence. Manumission often meant exile. Both South Carolina and
Virginia required the freed person to leave the colony or be reenslaved.
By contrast, Spanish law encouraged manumission and freed slaves could
readily remain part of the society where they were manumitted. In Spanish
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 271
Florida slaves could bargain with their masters to set a self-purchase price
(coartac´ıon) that masters were obliged to honor contractually. But whether
manumission was encouraged or frowned on, slave codes specified the course
of action that masters had to follow, no less than they regulated slaves.
Codes also applied to free blacks and mulattos, not just slaves. The specific
provisions in codes frequently used inclusive language to apply laws to
“all negroes,” such that free blacks were affected by slave code provisions.
This continued the trend of earlier, piecemeal legislation that had indicated
white lawmakers’ determination to regulate and control all marginal groups
within colonial society. Some slave codes also included penalties for whites
who attempted to aid blacks in insurrection attempts or enticed slaves to
run away from their masters. Disregard for property rights and a willingness
to take slaves away from the control of owners put any such whites outside
mainstream society; if they willingly colluded with rebellious slaves, such
whites who chose to “forget” their obligations to other whites could expect
harsh retribution. Punishments for whites who participated in insurrections
were routinely the same as those applied to bondsmen. Harboring runaways
and encouraging slave flight were also capital offenses in several colonies.
Inevitably, slave codes have come to be particularly associated with the
severe punishments inflicted on slaves for various crimes and the specific
tribunals by which bondsmen accused of felonies were tried. A white who
killed a slave in the course of inflicting punishment could expect to be
shielded from fines or trial in colonies like Virginia, North Carolina, and
Georgia. Enslaved persons accused of killing received precisely the opposite
treatment. In every colony, the punishments slaves endured were far more
severe than those imposed on whites accused of similar crimes. In North
Carolina, for example, a slave convicted of rape in 1770 was hanged, his
head displayed on a pole at a nearby fork in the road, and the rest of his body
burned. Castration was the alternative punishment to the death penalty for
North Carolina slaves convicted of rape or murder between 1759 and 1764.
Whites found guilty of rape or murder were neither maimed nor burned,
nor publicly exhibited after execution. In a thirty-five year period prior to
the Revolution, North Carolina courts sentenced more than one hundred
bondsmen to execution or castration for a variety of offenses – murder,
assault, theft, rape, arson, or flight. During times of rumored insurrections,
as in New York in 1741 after the discovery of an insurrectionary plot,
penalties imposed on slaves might be increased and their executions turned
into spectacular public rites. Bondsmen found to have been involved in
the conspiracy were sentenced to slow torturous deaths by such means as
impalement, starvation, or breaking on the wheel.
Colonial lawmakers created special slaveholders’ courts to handle all slave
trials, not merely because they wanted the courts to convene without delay
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272 Sally E. Hadden
(particularly important during real or rumored revolts) but also because the
special courts could adopt their own practices and procedures in gathering
evidence and hearing testimony. In most cases, the slave codes reproduced
practices already established in this area. Pennsylvania, for example, specified
in early 1700 that two justices of the peace, together with “six of the
most substantial freeholders of the neighborhood,” should gather to try
all offenses committed by slaves, well before its 1725 code repeated the
provision. In South Carolina, slave courts included two or three justices
of the peace and three to seven “substantial freeholders.” Unlike trials of
whites, from which black testimony was excluded, both whites and blacks
might testify before slave tribunals. The use of torture to gather information
and evidence was sanctioned by several colonial governments, and virtually
no appeals were permitted. Punishments meted out were rapid and harsh,
although how arbitrary such justice might have been is hard to estimate.
The execution of a slave routinely required the colony to make good a slave
owner’s property loss, which would result in a higher tax bill for all members
of the tribunal weighing a potential death penalty. One solution that
required neither higher taxes nor freeing an accused slave was to mandate
transportation out of a colony’s territory. By requiring an owner to sell the
convicted slave out of his home colony, a slave’s potential for bad conduct
in the future would be passed on to another locale. Throughout the colonial
and antebellum eras, slave traders transported convicted slaves to the Deep
South and the Caribbean, where labor shortages continued, the slave’s prior
offenses were unknown, and a higher price was obtainable at the auction
block. Eventually, several Deep South states, like Alabama, Mississippi,
and Louisiana in the post-Revolution period, passed laws barring sales of
convicted slaves to prevent owners from dumping violent slaves in their
region, though the efficacy of such laws remains debatable.
As is true in modern society, the number of lawless individuals in the
colonial world was far outnumbered by those who were decent and law abiding.
The same was true for bondsmen. Many more were affected by curfew
restrictions, prohibitions on selling produce and other goods, or the rules
established on plantations by individual masters than by the criminal law of
slavery. Most slaves did not enter or testify before slave courts or endure the
brutal punishments they handed out. Those who were punished by slave
courts may have complied for reasons derived from their African backgrounds
rather than any coercion applied by court officials. African tribal
beliefs often fused together religious and legal proceedings, placing them in
the hands of an expert truth-finder from whom falsehoods could not be hidden.
What might Africans forcibly shipped to the NewWorld have deduced
from the rituals and forms associated with typical colonial American legal
proceedings? If they saw judges entering a courtroom, perhaps dressed in
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 273
robes, some Africans might have concluded that they were in the company
of religious figures, shamans, or truth-finders, endowed with supernatural
powers. The desire to tell the truth to such religious/judicial figures
may thus help account for the direct testimony that some colonial slaves
gave indicting themselves in legal proceedings. Confronted with testimony
about their wrongdoing, some African bondsmen may have admitted their
guilt to slave courts as a form of religious obedience – 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
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274 Sally E. Hadden
checking slave passes and correcting misbehavior through physical punishment,
not just slave masters. Gradually, colonial lawmakers realized that
they could not rely on slave masters or whites throughout society in general
(without compensation) to enforce police laws preventing slaves from gathering
in nighttime meetings, huckstering goods, or moving about without
passes. Masters simply could not be counted on to implement all the laws
intended to bind slaves all the time. Beginning in late seventeenth-century
South Carolina and continuing through the eighteenth and into the nineteenth
centuries, colonial (and later state) governments and town councils
created slave patrols to take specific responsibility for enforcing the varied
regulations circumscribing slave conduct. Patrols, composed of owners and
non-owners alike, were employed in three- or six-month rotations, time
enough to gain detailed knowledge of the slave codes they were meant
to impose. Slave patrols operating in the growing cities and towns of the
colonial period routinely predated the creation of urban police forces in the
South and in some cases operated in their place, all the while focusing their
attentions specifically on the activities – 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.
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Estimates suggest that as many as 50,000 slaves attempted to reach British
encampments during the course of the Revolution. Slaves who actively
aided the British and were subsequently recaptured were often executed for
treason.
The British offers made to American slaves had no humanitarian impulse
behind them, but simple expediency: a shortage of manpower and local
knowledge made slave workers invaluable. Rebel forces recognized that the
same potential source of labor could be put to work for their side, and several
Northern states, Connecticut and New York among them, offered slaves
their freedom if they enlisted with local militia units (with their masters’
permission). Maryland andVirginia also permitted slaves to enlist, although
emancipation was not offered. South Carolina and Georgia, meanwhile,
resisted all efforts to arm blacks. But in Northern regions, with two groups,
rebels and loyalists, effectively bidding for the military services of enslaved
men and offering freedom as the ultimate bounty, male and female slaves
may have realized that their moment to press for total emancipation had
arrived. Perhaps sensing that political winds had shifted in their favor, slaves
in Worcester County, Massachusetts, petitioned their local Committee of
Correspondence for freedom in 1775. The committee in turn pledged its
support to all efforts that might emancipate African Americans in the
future. A group of bondsmen in Portsmouth, New Hampshire, urged the
state legislature to end slavery throughout the state, but their petition
was tabled. Emancipation in New Hampshire would only come after the
Revolution.
In 1775, Samuel Johnson famously noted the irony of American patriots
complaining of their political bondage (being taxed without Parliamentary
representation) at a time when close to a half-million Africans or African
Americans were held in literal bondage by those same patriots: “How is it
that we hear the loudest yelps for liberty among the drivers of Negroes?”
The irony was not lost on all white Americans, who in some cases began
to take action against the laws enslaving their fellow man. Before the Revolution,
the strongest advocates for emancipation had been the Quakers,
who in the early eighteenth century had agitated against slavery, with little
success. The spread of their egalitarian views on religion nevertheless
coincided with growing anti-slavery sentiment elsewhere in Europe. The
language of universal freedom and independence that flowered in the works
of Enlightenment figures like Baron de Montesquieu found a ready audience
in British North America. In his proposed Declaration of Independence,
Thomas Jefferson urged that George III should be indicted for the slave
trade, a “piratical warfare” conducted against “a distant people who never
offended him” who were now urged to “rise in arms among us.” He likewise
proposed that slavery should be abolished. Jefferson’s fellow delegates to the
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276 Sally E. Hadden
Continental Congress, however, were divided on these ideas: delegates from
Georgia and South Carolina blocked their inclusion in the final version of
the Declaration, revealing an early rift on the future course of emancipation
in the new nation.
Several states determined to strike out on their own course in abolishing
the international slave trade, making it illegal for ships carrying Africans to
enter their ports or sell their human cargoes. These actions were inspired,
in part, by the 1774 Articles of Association, designed to boycott all British
products and cargoes shipped in British ships. The second article asserted
that Americans would no longer participate in the international slave trade.
Virginia and Connecticut implemented the provisions in 1774, outlawing
slave importation and setting steep fines for ship captains found violating the
law. However, when emancipation bills were presented in the Connecticut
assembly, they were rejected – in 1777, 1779, and again in 1780. Halting
a state’s connection with the international slave trade was not equivalent,
in the minds of white lawmakers, with ending slavery altogether. Rhode
Island, a long-term participant in the slave trade, never passed a law banning
slave ships from its waters. However, after the Revolution several other
states followedVirginia and Connecticut’s lead: Maryland, for example, prohibited
further slave imports after 1783, and New York halted importation
in 1785.
Emancipation in Northern states would come through a mixture of constitutional
declarations and court cases. The first North American government
to end slavery by constitutional means was Vermont, which formed
an independent republic and ratified its own constitution in July 1777.
The first article of Vermont’s constitution rejected slavery as inhumane and
inconsistent with a free republic. Such rhetoric may have come easily in
Vermont. Fewer than 300 African Americans were living in the state when
it joined the United States in 1791. In Massachusetts, the first version of a
state constitution proposed in 1778 foundered during ratification because
it included language in its fifth article, on representation, that refused free
“Negroes, Indians, and molattoes” [sic] the right of participation in elections.
Other aspects of the draft constitution were also controversial, but the
townspeople of Sutton, like residents of eight other towns, specified in their
return that “the grand and Fundamental Maxims of Humane Rights” were
diametrically opposed to slavery and that the new constitution must not add
to the “Load of guilt” lying on Massachusetts for permitting slavery or the
slave trade to exist. Citizens of Pittsfield instructed the next Massachusetts
convention that a new constitution must end slavery, and in the 1780 state
constitution, crafted largely by John Adams, the first right declared was that
“all men are born free and equal.” The interpretation placed on these words
was unambiguous. William Cushing, the state’s chief justice, urged in the
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Quock Walker freedom case (1783) that “the idea of slavery is inconsistent
with our own conduct and Constitution.” Although some scholars point to
QuockWalker as the end of slavery in Massachusetts, Cushing himself would
date its demise some three years earlier, to the adoption of the 1780 state
constitution.
Unlike Vermont and Massachusetts, most Northern states experienced
the end of slavery as a gradual, not an immediate event, brokered through
legislative compromise on the question how long slaves should serve their
masters before being freed as adults. During the Revolution, Pennsylvania
with its numerous Quaker residents took the lead in gradual emancipation,
creating a law to end slavery slowly after 1780. The legislature responded
not merely to the idealism of Enlightenment thinkers but also to pressure
from the first anti-slavery society founded in America in 1775, established
by prominent Philadelphians like Benjamin Franklin. Pennsylvania’s law
provided that all persons born to slave parents after 1780 would serve until
28 years of age, when they would be freed. Lower ages, of 18 and 21, were
originally proposed, but the legislative history shows that a higher age
was finally established to allow slave owners recompense for the expense of
rearing slave children from infancy.
Pennsylvania’s gradual emancipation model was reproduced in several
other northern states after the Revolution. Rhode Island (1784), Connecticut
(1784, modified in 1797), New York (1799, modified in 1817), and
New Jersey (1804) all adopted gradualist laws designed to emancipate
bondsmen while at the same time partially compensating slave owners for
their lost property by guaranteeing them terms of service lasting anywhere
from eighteen to twenty-eight years. The fa,mous slave orator Sojourner
Truth (Isabella Baumfree) witnessed this legal process and its effects firsthand.
Sojourner Truth’s Narrative, told through an amanuensis, recounts
how her children only gained their freedom after serving their masters
through adolescence and young adulthood. Many white observers considered
gradual emancipation to represent a less convulsive (and therefore
commendable) method of emancipation because it altered the legal status
of slaves piecemeal, one person at a time. In 1794, the Connecticut state
assembly considered abolishing its gradual emancipation program, begun
in 1784 in favor of immediate emancipation, but despite strong support
from advocates like Jonathan Edwards, Jr. and Theodore Dwight the measure
never became law. The inspiration for the immediate emancipation
project in Connecticut probably came from the Caribbean, where the ongoing
slave revolt on Saint Domingue (which began in 1791 and ended with
the abolition of slavery) had inspired a reconsideration of slavery throughout
the French colonial system. France’s revolutionary convention formally
abolished slavery in its colonies in 1794.
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Several other states considered ending slavery during the Revolution.
The most notable was Virginia, where legislators debated abolishing the
institution, but ultimately chose not to do so. In 1782, however, Virginia
lifted its restrictions on slave manumission, and the number of free blacks
in Virginia began to rise dramatically (from 3,000 in 1782 to 13,000 by
1792) as many masters took advantage of the law to free their slaves. But
anti-slavery sentiments in Maryland and Virginia could never persuade the
numerous slave owners who clung to their human property and defeated
measures to abolish slavery entirely both during the Revolution and in the
years that followed. The financial costs associated with compensating slave
owners for lost property rights, as well as the racism that served as the
foundation for many slave-related laws, swayed the Virginia assembly to
abandon any discussions of gradual or immediate emancipation. Indeed,
in 1806 Virginia’s legislature reimposed certain restrictions on manumission
by requiring manumitted slaves to leave the state in the year after their
emancipation or face reenslavement. Given that in 1790 Virginia and Maryland
were home to more than half of all mainland slaves (nearly 300,000 in
the first U.S. census), the failure to abolish slavery in its greatest stronghold
must be considered a lost opportunity of immense significance, one that,
if seized, would have decisively altered the nation’s history. Had Virginia
decided to end slavery within its borders in the 1780s or 1790s, the impact
of the decision on the rest of the South might have caused slavery to diminish
rapidly in the early nineteenth century.
The American law of slavery became more plural and more complicated
after the colonies achieved their independence from Great Britain, for now
the lives of bondsmen could be regulated not only by state laws but also by
national law. The Articles of Confederation (proposed in 1776, ratified in
1781) creating the first government for the United States acknowledged the
existence of slavery, but only indirectly and in a fashion that restricted any
potential national authority over the institution. The “privileges and immunities”
clause (Article IV) applied only to the states’ free residents; Article
IX’s “treaties and alliances” power forbade the Confederation Congress from
making treaties that would affect the import or export of any “species of
goods or commodities whatsoever,” which meant that Congress could not
enter into any international agreement to prohibit the Atlantic slave trade.
In general the terms of confederation made state sovereignty supreme (Article
II), so slavery and its abolition remained largely in the realm of state law.
After the RevolutionaryWar ended in the Treaty of Paris (1783), the new
confederation faced important problems in governing lands gained from
Britain as a result of the peace treaty. With England’s cession of all land
claims on the eastern side of the Mississippi, Congress found itself required
to create laws for territories beyond the jurisdiction of the existing state
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 279
governments. In 1784, Thomas Jefferson chaired a congressional committee
created to draft a plan for governing the newly acquired lands. Jefferson’s
draft legislation proposed that slavery be barred from all western territories
after 1800, but the provision was removed by Congress before the law’s passage.
Nevertheless, growing anti-slavery sentiments among Northern congressmen
could not be restrained, resulting in a compromise that provided
a temporary solution to the thorny problem. In 1787, Congress passed the
Northwest and Southwest Ordinances, dividing the western territory along
the Ohio River and mandating that slavery would be absolutely excluded
from lands north of the river. South of the Ohio, where the Southwest
Ordinance prevailed, the law was silent: in other words, Congress tacitly
accepted that slavery would likely spread to the territories of Alabama,
Mississippi, Tennessee, and Kentucky. The Northwest Ordinance also
included a provision (Article VI) that runaway slaves captured north of the
Ohio were to be returned to their slave masters. This language, later echoed
in the fugitive slave clause of the U. S. Constitution, required that residents
of Northern territories and states where slavery did not exist must still
respect the laws of Southern states binding African Americans in slavery.
As regional practices in the United States diverged on whether slavery was
legitimate or not, the respect for Southern slave laws required of Northern
“free” states would prove an increasingly divisive issue.
VI. FROM ARTICLES OF CONFEDERATION TO THE
CONSTITUTION: SLAVERY IN THE NEW NATION
The impact of the Revolution on slavery in the United States should not be
minimized, for it represented a clear rift in the universality of slavery that
had prevailed hitherto. At the start of the Revolution, slavery remained legal
in all mainland colonies. By 1804, plans for gradual or immediate emancipation
were in place in each state north of the Mason-Dixon line. Gradual
emancipation did not work flawlessly. First, it was extremely gradual: in
1810, there were nearly 30,000 slaves still living north of Maryland, awaiting
the slow transition to freedom. Second, it could be highly arbitrary: take
the case of Lucy, a slave given her freedom by a Connecticut court only to be
reenslaved a month later. After her manumission her former owner returned
to court to complain that he had not known he would remain financially
responsible for Lucy, were she to become a pauper in her old age. The court
agreed to reverse Lucy’s emancipation. The court did not recognize Lucy,
an African American, as a full citizen of the republic, so her agonizing
journey from and then back to slavery caused it little concern. Nor, finally,
did the slow elimination of slavery in the North make much impression
on the racism endemic among whites toward African Americans living in
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280 Sally E. Hadden
their midst. Nevertheless, the critique of slavery as a violation of natural
law by Enlightenment writers and the spread of gradual emancipation in
Northern states, flawed as it was, would eventually reduce slavery from an
unquestioned universal practice to a regional “peculiar institution.”
The regional quality that slavery was acquiring after the Revolution
became apparent in 1787 during discussions at the Philadelphia Constitutional
Convention.Weaknesses that had become manifest in the Articles of
Confederation since 1781 caused political leaders to propose a new form of
national government. In their constitutional debates, Northern delegates
found that they could not avoid discussing slavery, no matter how hard
they tried. Southern delegates consented to the use of euphemisms in the
Constitution in place of the words “slave” and “slavery.” But though the
words “unfree persons” or “such persons” were employed, slavery was clearly
part of the Constitution, notably in its apportionment of representation and
taxes (Article I) and its fugitive slave clause (Article IV). For purposes of
apportioning delegates in the House of Representatives according to population,
each state could quantify a slave as three-fifths of a white citizen;
attributing federal taxes payable by each state (split among states based on
total population) would likewise tally a slave as three-fifths of a white resident.
Two other provisions in the Constitution directly affected American
slavery. Article V restricted Congress’s ability to pass any law restricting the
international slave trade before the year 1808; Article IV required (as the
Articles of Confederation had) that each state grant “full faith and credit”
to the laws passed by every other state. Laws passed in Southern states like
Georgia regulating slavery were to have full effect in Massachusetts and
elsewhere in the North.
Ratification of the proposed Constitution did not come immediately. Delegates
to some Northern ratification conventions pointed out that the new
document implicitly approved and sanctioned slavery, even though the
word “slave” might be missing from its pages. No clause generated more
furor than Article V, the restriction on the international slave trade – some
slavery opponents sought to ban transatlantic slave trading immediately
on moral grounds, whereas others suspected that the continued importation
of slaves would merely boost the South’s population and hence add to
its political power in the House of Representatives. Opposition to Article
V’s restrictions in the New Hampshire, Massachusetts, and Pennsylvania
ratifying conventions was, strangely enough, duplicated in a few Southern
states like Virginia and North Carolina, where continuation of the slave
trade was thought likely to increase the possibility of slave insurrections.
Ultimately, the twenty-year restriction on Congress’s power to ban the slave
trade remained part of the document.
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 281
Although Congress could not outlaw the international slave trade
until 1808, some national politicians began immediately attacking slavery
through other means. In 1794, the national government banned the
building of ships for use in the slave trade or the use of existing ships in the
trade. Ship owners found to have participated in the slave trade were to be
fined double the value of their investment in the ship. American sailors who
worked on American ships in the slave trade, if caught, were to serve two
years in jail and pay a fine of $2,000. Later this law would be augmented
to include American sailors working on ships of any country engaged in
the transatlantic slave trade. Widespread support, North and South, for
preventing the importation of African slaves in American ships made the
passage of such laws relatively easy.
Non-American slave ships nevertheless continued to enter ports of the
American South – 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.
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282 Sally E. Hadden
Unlike the other trans-Appalachian territories, Kentucky chose to adopt
portions of its slave code from Virginia and North Carolina. Subsequently
it invented new restrictive laws for slaves living near the Ohio River. As the
last great barrier between slave and free states, the Ohio River represented a
final hurdle for bondsmen running away to freedom. Kentucky lawmakers
responded by creating stronger slave patrols along the river’s edge to enforce
the slave laws there more effectively. New restrictions on bondsmen also
appeared in long-settled states, likeVirginia. In the wake of the unsuccessful
insurrection known as Gabriel’s Rebellion (1800), Virginia lawmakers in
the early 1800s placed additional limits on slave literacy and mobility.
Fear of slave rebellions continued to inspire Southern legislators to attempt
these new controls on slave behavior, but the laws remained ideals. Slaves
who already knew how to read could not be forcibly rendered illiterate;
bondsmen determined to violate curfews would not always be restrained.
Towns on the Gulf of Mexico and the Atlantic instituted additional
laws in the 1790s to prevent contact between local slaves and outsiders
carrying seditious tales of freedom. Following the successful slave revolt on
St. Domingue (Haiti) in the 1790s, several states restricted the movement
of visitors from the island so that emancipated Haitian slaves could not
circulate insurrectionary ideas among Southern bondsmen. Likewise, ship
captains who employed free black sailors learned on arriving in Charleston
and Savannah that their “negro seamen” were required to lodge in the city
jail during shore leave. Until their ships left harbor, African American
sailors who knew of a world beyond slavery could not be permitted to
mingle freely with the enslaved population of the South. Other Southern
port cities soon followed Charleston and Savannah’s example. Predictably,
abolitionist newspaper editors in the North reacted with rage and scorn on
learning that free United States citizens were being jailed in the South for
no reason other than the color of their skin.
Throughout the early period of America’s nationhood, comity in the area
of slave law became an increasingly difficult problem. Given that the bulk of
slave law was state-based, should Northern states where slavery had ended
(or would soon end) be required to respect the legal restrictions placed by
Southern states on African American slaves? Travelers from the Caribbean
or the South who arrived in states like Rhode Island or New York were routinely
accompanied by “servants” who were in truth slaves. Should those
slaves be immediately emancipated on arriving in free states, as slaves who
visited England would have been following the 1772 Somerset decision? Each
Northern state devised its own solution. Pennsylvania’s gradual emancipation
statute (1780) contained a six-month clause for just such a situation:
slaves accompanying visitors sojourning in the state remained bondsmen
for only six months. If a slave owner lingered in Pennsylvania longer than
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 283
six months, his accompanying slave was rendered free. Pennsylvania abolitionist
groups pursued an aggressive litigation strategy to free slaves who
had been in the state beyond the deadline.
As legal distinctions between Northern and Southern states in the realm
of slave law grew more pronounced, additional cases would test each region’s
commitment to maintain or abolish slavery. The fragmented nature of slave
law in America, so haphazard in the colonial period when slavery was almost
universally accepted, did not lend itself to the mediation of the growing
antagonisms of the late eighteenth and early nineteenth centuries.With new
states added in each decade of the nineteenth century, conflict between state
laws – 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
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284 Sally E. Hadden
considered recoverable by the vast majority of historians of colonial slave law
has been that of European enslavers and their white descendants. A signal
deficiency in each of these studies, therefore, has been the failure to consider
and describe the experience of American slave law from the perspective of
recently enslaved Africans, who were of course familiar with law in their
natal lands. It is reasonable to suppose that their legal knowledge affected
their expectations, understanding, and acceptance of American slave law as
applied by white slave owners. Histories of early America have increasingly
emphasized transnational or world historical perspectives, as evidenced by
the growing interest in Atlantic world connections. The parochial, topdown
approach of studying colonial and revolutionary slave law in America
(emphasizing either America’s exceptionalism or the indebtedness of America’s
slave law to European legal sources) should also give way to a more
inclusive legal-historical approach that acknowledges the legal expectations
of enslaved Africans as well as the Americans who kept them in bondage.
Analyses that give equal consideration to the legal perceptions and experiences
of the enslaved as well as the enslaver will need to accord greater
importance to the particular demography of Africans placed in bondage. Of
the roughly eleven million Africans taken captive and shipped to the New
World, some tribal groups were predominant. Recent studies of slaves taken
from Africa indicate that the ports of departure most frequently named on
slave ship manifests were in the Bight of Biafra, the Bight of Benin, or the
west-central region of Africa, near Loango and Angola. Some 60 percent or
more of all ships carrying slaves out of Africa left one of these regions, bound
for the Americas, whereas Senegambian captives (from the area between the
Senegal and Gambia rivers, farther north) accounted for another 10 percent
of all Africans sent to what would become the United States. From the
Bight of Biafra, one large group well represented among the many Africans
enslaved was the Igbo people. Therefore, it would make sense to concentrate
our attention on the Igbo approach to law (among others) to try to determine
what legal understandings of their own slaves taken from among the
Igbo might have brought to the slave law of the British mainland colonies.
In the case of Senegambian captives, similarly, we should learn more about
Muslim traditions within slavery, since the trade in non-Muslim slaves was
strong in that region.
In the future, scholars of slave law will be interested in more than just
how these West African customary laws might impose the status of slave
on a person or enable the status to be cast off. We must anticipate that
Africans encountering American slave law would have known not only
specific principles of law, but would have framed their conceptions of law
within a legal philosophy, an overarching theory that made sense of the
entire legal system within their society. We should look for indications of
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The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras 285
the underlying principles that guided legal relations, conceptions of guilt
and innocence, and presumptions about human nature. For instance, the
Igbo believe that there are both divine and man-made laws, but that the
greatest penalties are reserved for breaches of divine law. Thus, a murderer
would not be put on trial, because if the evidence were clear and convincing
no earthly court could have jurisdiction. Indeed, the penalty prescribed
by Igbo tradition is that the murderer is expected to hang himself. Igbos
placed on trial by slave owners for certain crimes may have experienced some
conflict in their own minds about the legitimacy or jurisdictional claim of
the colonial court, for any Igbo guilty of breaking a divine law would be
required to do penance personally to be restored to the good favor of the
gods.
To learn more about how Africans perceived their own legal systems (and
thus, what they may have thought on encountering American laws), analysis
of firsthand African accounts will be necessary. As one example of what is
possible, an excellent account of the early civil and criminal justice system
of the Yoruba people, from the area of modern-day Nigeria, can be found
in the words of Osifekunde, a man sold into slavery who eventually told his
story to a French ethnographer, D’Avezac-Macaya, in the early nineteenth
century.
Given the limited nature of firsthand evidence, investigation of African
perceptions of the colonial legal system may not be capable of rising above
the inferential. Nevertheless, if inference permits the construction of a
more inclusive picture of the legal cultures in contact during the colonial
and Revolutionary eras we should not hesitate. Rather than assume that
the only perspective and legal culture that matters is that of the white
colonizer, slave owner, and lawgiver, future studies in this area must pay
more attention to the customary laws of slavery in Africa and the information
to be gleaned from travelers, explorers, and traders who visitedWest Africa.
Likewise, surviving local court records found in many state archives for
criminal trials demand much more attention from scholars. Published legal
reports of criminal cases decided on appeal cannot substitute for the entirely
distinct legal world of the lower courts during initial trial hearings and the
records they generate. These case files, though incomplete and sometimes
frustrating, contain the information necessary to recapture the lost voices
of Africans and African Americans encountering a European-designed legal
system for the first time.
CONCLUSION
The creation of slave laws in the New World resulted from longstanding
European intellectual and religious traditions that justified using coercion
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286 Sally E. Hadden
against strangers. The Bible, natural law, and just war theories provided the
rationales used by enslavers to legitimate the capture or retention of bondsmen
in the early modern period. These widely shared beliefs, buttressed by
racism, fear, or greed, provided Caribbean planters, the first British colonizers
to invest heavily in slave labor, with the mental framework necessary to
craft slave codes in the mid-seventeenth century. Their codes did not include
every possible area of slave law that could be addressed – 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
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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.
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9
the transformation of domestic law
holly brewer
Law has a peculiar tendency to normalize social relations that are in fact culturally
distinct in different societies and eras. There is no better example of
this tendency than domestic relations. Following common law norms, legal
historians have largely portrayed a particular domestic order as peculiarly
unchanging, indeed as private and ideally inviolate. In an abstract sense
domestic order may thus seem to be outside the law. The law’s very success
in normalizing family relations has obscured its own agency in shaping
them, rendering its own role in historical and cultural change mysterious.
In England and its colonies in the early modern period, the law – 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
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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.
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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
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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.
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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
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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.
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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
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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.
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296 Holly Brewer
In the British mainland colonies, the proportion of those in servitude
grew even higher. Some 44 percent of the white population of 1620sVirginia
were servants. However by 1700 the proportion had fallen to perhaps
10 percent (about 4 percent indentured servants from England and perhaps
6–10 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
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half of the white immigrants to British North America (roughly 250,000
people) arrived as indentured servants. Still, only a minority of the white
population (aside from the very early years) was actually indentured or
apprenticed at any given time because white servitude was a temporary
condition. For African Americans, in contrast, slavery was perpetual and
hereditary. Although not many more slaves arrived than servants (300,000),
the permanence and heritability of slavery meant a large proportion of the
population was permanently in bondage.
Some white servants traveled willingly, signing contracts with “spirits”
who lured them into seeing the New World as a land of opportunity.
Others did not. Kidnapping was widespread, especially in the seventeenth
century. In some ports officials clearly colluded with shippers. English laws
against kidnapping gained some teeth by the early eighteenth century,
though the practice continued on a reduced scale through at least midcentury.
Thousands, perhaps tens of thousands, traveled without contracts,
for which colony laws designated terms of service that varied depending on
the servant’s adjudged age. Most English authorities looked on the practice
relatively benevolently, seeing it as a means of managing the lower
sort and of keeping the vagrant population under control. Even for those
who willingly signed labor contracts, their situation on arrival in the New
World was arguably worse than in the Old. Their contracts generally specified
longer periods of service, with strict punishments for absconding.
Though the servant was free to complain about mistreatment before a
justice of the peace, the terms of the indenture gave masters relatively
more power. Perhaps the most important difference from the Old World
was that their contracts were transferable. In England, servant contracts
were individually between master and servant and not assignable. The very
nature of the “indenture,” however, often between a shipmaster and the
new servant, meant that it had to be assignable to the future master. This
innovation made servants ever more clearly property – 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
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298 Holly Brewer
missing. Take, for example, Edward Britton’s The Community of the Vill, a
study of fourteenth-century Huntingdonshire:
Whether one looks at landholding, business affairs, or the home, it is evident that
the wives of Broughton were by no means wards of their husbands. The precepts
of Baron et Feme are fascinating, and may be used by all who wish to depict all
that is medieval and retrograde, but such legal theories held little sway in this
village in darkest Huntingdonshire. There women were a strong social force, and
the independence of married women was clearly recognized by the customary law.
Numbers of studies of women’s legal status in early modern Britain
have concluded in effect that the common law guidelines were purposefully
ignored. Scholars refer to the “wide gap” between the theory of femme
covert and practice. While confined (and indeed repressed) by some laws,
in many other cases women apparently used the law for their own purposes
and protections.3
Recent studies of seventeenth-century Virginia have drawn similar conclusions.
Only some of the common law rules about femme covert applied
there. Women went in and out of courts, even while married. The most
consistent seventeenth-century application of femme covert dealt with the
sale of property by married women without their husbands’ permission.
This was widely viewed as a voidable transaction (indeed women themselves
sometimes invoked the rules of femme covert to avoid such deeds).
Restraint on land sales provided husbands a means of control that could
turn particularly harsh when a woman’s husband had actually abandoned
her. In two early eighteenth-century cases, the Virginia House of Burgesses
attempted to ameliorate just such a situation (vetoed by the king on the
advice of his Privy Council). Femme covert rules also restrained married
women’s capacity to make wills.
These situations apart, women in the colonies in the seventeenth and
early eighteenth centuries enjoyed relative freedom from rules limiting
their legal capacity, at least compared to the nineteenth century. Married
women appeared in courts. They were sometimes active business partners
who participated fully in building the kin networks that provided the basis
for transatlantic commerce. Nor were married women completely at the
mercy of their husbands. As in England, a woman who was physically
mistreated by her husband could obtain an action of the peace against him
(requiring that he post bond for his good behavior toward her) or seek a
3 Edward Britton, The Community of theVill:AStudy in the History of the Family andVillage Life
in Fourteenth-Century England (Toronto: Macmillan, 1977), 33–5; 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.
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“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.
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300 Holly Brewer
on unique colonial environments is that in England, where the common
law originated, where the sex ratios were balanced, and where no special
circumstances obtained, women should have been worse off. They were not:
instead, the English also deviated from eighteenth-century common law
norms. There too, women in the sixteenth and seventeenth centuries had
more freedoms and legal responsibilities than the common law supposedly
allowed. Such broad similarities in practice across such different regions
suggest that we have yet to understand the nature of the common law
before Blackstone.
We return to this below. For the moment, we can note that the decisive
issue for contemporary law books lay less in the realm of behavior than of
property: how much control were wives to exercise over land, even their
own dower lands, without their husband’s permission?
We have talked of broad similarities across different regions. However,
Puritan New England was unlike either Virginia or England, in that it
gave relatively more authority to husbands over wives. Separate estates for
women were less likely to be found there in the eighteenth century than
elsewhere, as work by Marylynn Salmon illustrates. There too, however, the
seventeenth century at least was a period of greater legal equality, as shown
by such scholars as Cornelia Dayton. Divorce, for example, was acceptable in
NewEngland, particularly in Connecticut. Expectations of wifely obedience
prevailed, but husbands’ authority was limited to a greater extent than it
would be in the nineteenth century. Unlike servants, wives were protected
from battery by their husbands (except in cases of self-defense), or at least
women were allowed to complain about it. Above all, there as elsewhere
married women can be found in court records engaging in many kinds of
legal action. Take Elizabeth Creford as an example; she frequently signed
promissory notes on her family’s behalf.5
Yet, we cannot say that in the seventeenth century married women
had equal power in marriage or that women had approximately the same
rights as men in general. Too many gendered disparities are observable.
For example, both women and men were found guilty of sexual offenses
during the seventeenth century and punished relatively equally, but in
Massachusetts adultery, which was punishable by death, applied exclusively
in cases of sexual relations involving a married woman. A married
man who had sex with an unmarried woman committed only “fornication,”
a much less serious crime punishable by fine or whipping. In one famous
case, a married woman and her two lovers were all executed. Women were
also more much more likely than men to be accused of witchcraft in New
5 Laurel Thatcher Ulrich, Good Wives: Image and Reality in the Lives of Women in Northern
New England, 1650–1750 (Oxford, 1980), 41.
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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.
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302 Holly Brewer
From the evidence presented, we can conclude that women in early modern
Anglo-America enjoyed relatively greater authority within marriage
than they would in the nineteenth century, but were still at a significant
legal disadvantage. Women could not usually vote, although sometimes
they could inherit that right and designate a male to vote for them (depending
on borough norms). They could not hold seats in Parliament. Women
were not appointed judges, generally they did not sit on juries (except in
the limited role of examining women’s bodies in cases of witchcraft or rape),
and they could not hold most political offices. Culturally, the husband was
expected to be the “Lord” of the family.
But the husband’s authority over his servants was much clearer in law
and in practice than his authority over his wife. Indeed, though a truism it
is important to point out that wives also had authority over servants, male
as well as female. As this suggests, both within and outside the household,
legal disadvantage was modulated sharply by status. The impact of hierarchy
in society is obvious from any analysis of women’s legal identity during
this period. In some districts in England, for example, women controlled
which candidates stood for election to the House of Commons. Women,
particularly as widows, clearly played political roles in England’s colonies.
Women could not only have political influence as the wives of governors –
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
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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
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304 Holly Brewer
early seventeenth century, one could testify at any age. In this part of the
legal landscape, as elsewhere, status trumped everything else. All criminal
records, for example, stated the status of the accused: virtually none stated
the age. Those who held positions of political and legal authority while still
teenagers – 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.
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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.
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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.”
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The Transformation of Domestic Law 307
one encounters no sense that age is relevant to testimony: children could
testify at any age. Wives and husbands could testify against each other or
in open court generally. Last, and probably most revealing, are the entries
on allowable battery. According toWilliam Lambarde’s Eirenarcha: Or of the
Office of the Justices of Peace, battery “is not in all cases a violation and breach of
the peace: for some are allowed to have privately a natural and some a civile
power (or authority) over others: So that they may (in reasonable manner
onely) correct and chastise them for their offences.” A parent might beat
a child “within age,” the master a servant, the schoolmaster a scholar, the
a jailer a prisoner, the lord a villein. But the husband might not beat his
wife – 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).
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308 Holly Brewer
covert had limited application, relating almost solely to the selling of freehold
property that had no other restraints on it, to a married woman’s
ability to make a will over such property, and, to a much lesser degree, to
her husband’s liability for her debts. Of particular importance, in this period
most land was not unencumbered freehold. Any land that was entailed or
had other legal restrictions on heritability was not within the husband’s
control. This basic point is very strange to modern readers, where almost
all land is freehold. Once we acknowledge the encumbered nature of most
land (in England especially, and increasingly in the colonies as well) we can
recognize the limitations of even this core principle of femme covert.
The concept that husband and wife were one in the eyes of the law, so
important to Blackstone, is conceived very narrowly in Coke’s writings 150
years earlier. It is not treated at all in most other legal writings of the
seventeenth century. One exception, an obscure text misleadingly entitled
The Lawes Resolutions of Womens Rights (1632), does appear to show that
Blackstone’s broad concept of femme covert indeed had some currency in the
early seventeenth century. But the treatise is not very reliable as a report
on current law. The legal texts of this period name their sources in almost
every paragraph, usually in statutes or other treatises on the common law
or other laws. In contrast, this treatise has few citations to contemporary
laws and none in the sections most relevant to the matter at hand. It is
not cited by later treatises, nor does it appear in colonial lawyers’ libraries.
Also significant, the author’s name appears only as the initials T.E. at a time
when authors of most legal texts gave their full names, and the treatise
itself appears in only one edition. By comparison, Coke upon Littleton, the
first volume of Coke’s Institutes, had appeared in eleven editions by 1719;
Dalton’s Countrey Justice was reprinted in comparable numbers.11
It is important, nevertheless, that we take this volume seriously, not
because it was an accurate rendition of current law but because it is an early
argument against women’s rights. As such it provides useful information
about the sources of the changes that would occur in women’s legal status
and indeed suggests something about why New England in particular had
more limits on women’s roles and property ownership than the southern
mainland colonies. For T.E.’s arguments are fundamentally religious. Under
the title “The Punishment of Adam’s Sinne” he invites his readers to “returne
a little to Genesis.” Eve seduced her husband. Hence “In sorrow shalt thou
bring forth thy children, thy desires shall bee subject to thy husband, and
he shall rule over thee. See here the reason . . . that Women have no voyse
11 Herbert A. Johnson, Imported Eighteenth-Century Law Treatises in American Libraries
(Knoxville, 1978). Despite Johnson’s title, his review of legal inventories examines
seventeenth-century (and earlier) treatises as well.
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The Transformation of Domestic Law 309
in Parliament, They make no Lawes, they consent to none. they abrogate
none. All of them are understood either married or to bee married and
their desires are subject to their husband . . . The common law here shaketh
hand with Divinitie.” Elsewhere T.E. proclaims that in marriage “Now Man
and Woman are one,” again citing only biblical authority, and he offers as
example the sale of land to man and wife together, as one (like Coke). Most
of the book, in fact, is best understood as a response to Coke. Revealingly,
the author uses biblical citation, not legal references, to challenge the legal
rules that he finds objectionable. For example, following Littleton, Coke
acknowledges that heiresses can manage their own estates at age fourteen,
if unmarried. T.E. recommends against this: he states that the common law
is clearly wrong and urges that heiresses should be married young so as to
avoid letting them control their own property.12
“T.E.” was probably Thomas Edgar, a member of the Inns of Court. Edgar
was not a prominent seventeenth-century lawyer. Educated as a Puritan in
Ipswich, he is best known for his defense in 1649 of the legality of the
Commonwealth in the wake of Charles I’s execution, seventeen years after
the publication of The Lawes Resolutions ofWomens Rights. Edgar would later
support the Restoration of Charles II, but in 1649 his views were radical,
suggestive both of his religious impulses and political principles.
The Lawes Resolutions ofWomens Rights was thus a religiously inspired commentary
on current law with important political implications and overtones
that sought to limit married women’s status and strengthen their husbands’
authority. Significantly, it includes sources external to the law, notably
Puritan sermons about wifely obedience and the ideal marital relationship.
In elaborating on the possible legal meanings of the unity of husband and
wife and in emphasizing women’s legal disabilities it is quite possible that
T.E. influenced later thinkers. And indeed that was the goal, for the book
imported into legal writing the genre of the Puritan prescriptive manual,
along the lines of (and arguably influenced by) William Gouge’s popular
1622 treatise on Domesticall Duties. Gouge’s text was not a law treatise but a
religious advice manual that described how the members of the household
should behave, outlining the “duties” of wives, husbands, children, parents,,
servants, and masters, in that order, citing only the Bible. Interestingly, in
Gouge’s treatise we begin to see the first outlines of the late eighteenth
century’s familiar triptych: “for a family consisteth of these three orders,
Husbands, Parents, Masters,
Wives, Children, Servants,”
12 T.E., The Lawes Resolutions ofWomens Rights [London, 1632], (facs. ed. Amsterdam, 1979),
21.
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310 Holly Brewer
Gouge attributes his analysis of the proper order of “private families” to
“the Apostle.”13
From all this we can conclude that, beginning in the early seventeenth
century, common law ideas about domestic order were profoundly influenced
by Puritan ideas. We can see this most clearly in how prescriptive
works by such authors as T.E. and William Gouge challenged the prevailing
common law norms outlined in the work of commentators such as Sir
Edward Coke.
There can be little doubt that Puritan writers sought to increase husbands’
powers. Debate was raging, particularly in religious circles, over the role of
the household and all its members. Part of the challenge to older hierarchies
posed by radical Puritanism lay in religious arguments about a different
natural order to which the family was central. In this new order men as
such not only had the right to exercise consent but also to remain with
their own families and enjoy rights to their own wives and children, so that
a husband might rule his own household and his children might no longer
be taken away as servants to others. It is highly significant that in early New
England the first paragraph on the first page of the first law book specifies
that “no man shall be deprived of his wife or children” – 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.
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(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
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312 Holly Brewer
on other treatise writers, such as Hale andWood, and others added to (and
modified) his formulations, such as Tapping Reeve and, later, Chancellor
James Kent. In the wake of the Revolution, state legislatures would also
contribute, as did judges (often following the new treatises) case by case.
One major change that occurred in the wake of the Revolution was
that most of the new American states legalized complete divorces (all had
allowed legal separations, called divorce “a mensa et thoro”). Before, only
Connecticut had allowed complete divorces (“a vinculo”), although some
colonies had permitted “private acts” of the legislature to authorize the
divorce of a particular couple, following English practice. After the Revolution,
many states began to allow divorces when one side could show
that the other had broken the marriage contract by infidelity. The resulting
cases, as one can imagine, make for interesting reading, but the larger point
is that the rhetoric of the Revolution itself could have radical implications
for marriage rules and practices.
Yet, the overall impact of the Revolution itself on domestic order – 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
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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.
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314 Holly Brewer
he concludes, children need guardians, which in some cases they can choose
if their father has not done so.
What is extraordinary about the Commentaries is first, just how much is
new in the sections on servants, wives, and children, and second, just how
much Blackstone tries to universalize principles across all three categories
of relationship. Admittedly, the parallels Blackstone develops are not all his
own doing: it was Hale, for example, who, late in the seventeenth century,
first developed the rules barring wives and children from testifying. But
Blackstone’s is the grand synthesis.
Though acknowledging in specific instances that changes had occurred
over time (as in the case of guardianship) Blackstone hides change. He
also ignores contrary precedents. There are limits, one could argue, to how
extensively Blackstone could mold the common law to fit his synthesizing
imagination. Yet the limits are not clear, for his reasoning is supple. Take
the expanding legal-political ideology of contract. Blackstone emphasizes
that the power to contract is essential for an individual’s public legal identity.
Most persons, therefore, must have it. What then of the “necessary”
dependencies of the domestic relations? They are founded on contract. A
servant contracts with a master, a wife with a husband. But once a servant
has contracted with the master, a wife with her husband, they have
exhausted their capacity to contract. Their contractual act turns them into
equivalents of children; like children they are dependent on the will of
the master/husband/father, at least insofar as what he requires is lawful. In
other words, Blackstone envelops each relation in the new ideas about contract
while actually allowing those ideas only a tenuous purchase: following
the statute of laborers, he still permits force to be used in the forming of
labor contracts – against the laborer. Likewise, he allows that labor contracts
can be for shorter (or longer) duration than the customary one year,
which gives greater flexibility to those contracting. In the wife’s case, meanwhile,
the concept of femme covert becomes fully realized in the law by her
contract, her one self-willed act held to imply an abnegation of her legal
identity.
In the new United States, such commentators as St. George Tucker in
Virginia,Tapping Reeve in Connecticut, JamesWilson in Pennsylvania, and
James Kent in NewYork built on Blackstone’s domestic relations blueprint.
They made their own modifications: Kent, for example, strengthened a
father’s right to property in his child, further limited the ability of children
to contract (even for necessities), and allowed mothers custodial rights due
to their loving care for their children. Arguably, this last change helped
precipitate later key custody battles where judges in divorce cases began
to grant mothers custodial authority over their children. Tapping Reeve
adopted an extreme approach to wives’ dependency, contending that wives
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could never be held responsible for any contract and that husbands were
always responsible for fulfilling their wives’ obligations, even to the extent
of caring for her children from a former marriage. Reeve saw husbands’
powers as also incurring responsibilities.
In the case of master/servant relations in America, the authority of masters
over white servants and apprentices had weakened somewhat in the
colonial period, in part because the percentage of whites in such relationships
in the colonies decreased. In the wake of the Revolution, however, the
common law broadened the reach of masters in parallel to increasing the
powers of fathers and husbands. Adult male laborers who remained in
the category of dependents were now analogized to children, but a more general
basis for the authority of masters was placed on the contracts of formerly
independent working men. This reactionary response to the principles of
the enlightenment and the American Revolution took place particularly
within the common law.
The laws regulating master and servant during the seventeenth and eighteenth
centuries were grounded in older norms about master and servant,
which persisted into the modern period. In practice, the application of those
norms expanded in range. While in the early modern period, many types of
skilled or day labor had been seen as legally independent, by the early nineteenth
century, hierarchical definitions of master/servant relations began to
apply to them. Masters/employers were granted so many legal advantages
that real freedom of contract did not exist. The trend followed Blackstone
and to some extent earlier treatise writers, such as Burns’ popular Justice of
the Peace guide. Still, in the wake of the Revolution the scope of the application
of these norms expanded rapidly in America through court rulings.
Key court decisions in many states allowed masters, for example, to set the
rules of departure and terms of labor and to limit their liability in the case
of injury. These decisions were made by placing most worker issues within
the older master/servant law, which had become a universal category under
which most worker relations fell. Courts also restricted workers’ combinations
(unions) in decisions along lines formulated in 1834 by Massachusetts
Judge Peter Oxenbridge Thacher, who condemned unions as conspiracies
that would undermine public order comparable to the excesses of the French
Revolution. Such rulings were openly anti-democratic.16 They blunted the
principles coming out of the American Revolution that had given strength
to the working men’s movement, fueling the impetus toward unions that
challenged employers on grounds of equity and rights and contributed to
the nineteenth century’s ideology of “free labor.” One change that did begin
16 Christopher L. Tomlins, Law, Labor and Ideology in the Early American Republic (Cambridge,
1993), e.g., 193, 238, 263, 275.
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316 Holly Brewer
to benefit working men, however, were court decisions that began to limit
employers’ ability to physically punish their employees.
Ideas about the equality of men – about their ability to consent to government
– shaped the legal debate about the rest of the household and the
pattern of authority within it. Forcing poorer children to labor for masters
no longer looked so appealing to a broader electorate that included the
fathers of those poorer children. As consent became more important to the
law and to the ideal of society, it became more important to train future
citizens, which led in the wake of the American Revolution to ambitious
plans for public education in many states that were actually realized in
the middle and Northern states. In the longer run these principles also led
to general bans on child labor, following the principle that poor children
should not be condemned to service and manual labor, but had rights to
occupational opportunity and civic capacity.
These changes were part of a larger challenge to hereditary status.With
the notable exception of slavery, laws determining status by birth largely
disappeared in the new United States. The U.S. Constitution mandated that,
on the federal level at least, political offices could not be hereditary. States
passed similar laws, though in some cases – justices of the peace in Virginia,
for example – formally appointive positions remained hereditary in practice
as they passed from elite landowner father to eldest inheriting son, just as
in the colonial period. Still, even in Virginia, laws challenged hereditary
status, such as those abolishing entails and primogeniture. Apprenticeship
laws that had removed poor children to work in wealthier families also
became less common – for whites, at least.
White parents tended to gain custody of their children; black parents
(especially those enslaved) generally did not. Free black families were often
female headed, perhaps with an enslaved father, and poor. Poor free black
children were often forcibly bound out, especially in the South. The children
of slaves were of course owned along with their parents. Enslaved parents
had no legal voice and no legal right to be married. The legal word “family”
did not apply to them. This might seem obvious to scholars of antebellum
slavery, but its roots lay in older norms of master/servant. Slavery was a
continuation of those norms, challenged but unreformed by the Revolution,
as defenders of the South’s “domestic institutions” repeatedly revealed.
States offered many variations in the details of domestic authority, with
the South assuming the most hierarchical stance in the powers it gave white
fathers. In the wake of the Revolution, fathers in Massachusetts were allowed
to bind their children into apprenticeships solely on their own authority if
the child were under 14; for children between 14 and 21, both father and
child had to sign. In Virginia, fathers could bind the child solely on their
own authority until the child was 21. In Pennsylvania, a parent or guardian
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had no power to bind the child on their own authority at any age. Even a
2-year-old had to sign too before a labor contract could be valid. (In all three
states, however, Overseers of the Poor could bind children until age 21 if
they determined the children were poor or illegitimate or without proper
care.) These different state laws, of course, all marked a shift away from the
earlier practice that held the child’s consent sufficient in itself – a norm still
acknowledged by Blackstone, his extensive objections to children forming
contracts notwithstanding.
Across the broad spectrum of the law, children lost legal capacity – they
were no longer able to manage estates, to serve in political or appointed
offices or on juries, to marry without parental consent, let alone under the
age of puberty, to be criminally culpable (at least if under the age of 14),
to make wills, to testify in a court of law, or even to make contracts for
necessaries. These changes sometimes worked to a child’s advantage, as in
an 1806 case in which a 13-year-old girl accused of murdering her drunken
father was deemed too young to have her confession admitted as reliable
evidence and was acquitted.17 Generally these new rules emerged out of
legal policies that privileged informed consent – and legal independence –
in the forming of all contracts and relations of responsibility and assumed
that children lacked the competence to make such decisions.
The story of women’s legal rights is somewhat grim. Blackstone’s grand
synthesis set up a situation in which women (particularly heiresses) could
be exploited more easily by their husbands, a situation that fed the women’s
rights movement and paved the way for some of the women’s separate property
acts of the mid- and late nineteenth century. Blackstone’s unqualified
embrace of marital unity and the reformulation of property rights that
gave the husband all authority over property – even personal possessions
and property the women had brought to the marriage as dower – sharply
altered the multiple ownership norms and encumbrances of the older system.
Blackstone’s injunctions were supported by revolutionary ideals that
glorified simple property ownership and jettisoned many types of property
encumbrances. Bans on one particular type of encumbrance, namely entails
that conveyed only life estates to heirs, did advantage women in the sense
that daughters were more likely to inherit. However this reform also came
at the expense of wives who were heiresses because encumbrances like entail
had formerly protected a married woman’s separate property. In and of itself,
the abolition of entails displays the mixed character of the revolutionary
legacy for women as daughters and wives.
One important technicality for understanding this transition is the role
played by equity courts (Chancery). Equity courts in England had long
17 State v. Mary Doherty, 2 Tenn (2 Overt), 80.
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318 Holly Brewer
provided a separate system of justice headed by the Chancellor of England,
which technically served as an appeal to the King from common law decisions.
In the late eighteenth and early nineteenth centuries, equity courts
coming out of the English tradition had crafted a separate body of law that
(among many other things) tended to recognize the different forms of separate
or encumbered estates of wives that husbands could not/should not
control. In fact, these equity decisions often simply recognized what the
common law, prior to Blackstone, had itself largely honored. In the early
nineteenth century, as the common law ceased to allow women separate
property, equity appeals (through the separate equity courts that existed in
many states) built on older precedents to challenge Blackstone.
Not all states had equity courts and even those that did often limited
their jurisdiction. Still, equity jurisdiction helped shape the laws that began
to emerge in the 1830s and 1840s in America collectively known as the
“women’s separate property acts,” laws that allowed women to retain control
over the property that they had brought into the marriage. They were
fiercely debated in many states, often in state constitutional conventions.
Arguments not only focused on whether wives should be able to own separate
property but also on the fundamental principle of marital unity itself,
and what it meant for republican government, the virtue of citizens, and
the liberties of free men. Defenders portrayed Blackstonian common law
as the fundamental and eternal order of family relations, claiming that
“oneness” was the core principle of happy marriage and a virtuous public
order. Just like seventeenth-century reformers, they appealed to biblical
descriptions of husband and wife as “one flesh.” Challengers pointed to the
abuses that the (new) common law norm had allowed – men who married
heiresses only to squander their estates and leave them ruined and
homeless. One can imagine that many men – as fathers of daughters – supported
the women’s separate property acts precisely as protection from such
abuses.
The story of marital violence is more complicated. Most state courts held
that men could not beat their wives, but their decisions varied and always
found a way to repeat Blackstone’s dictum that the ancient common law
had allowed it. Some lawyers defending husbands in such cases actually
argued that men should be allowed to beat their wives as much as they
wanted, and even to kill them, on the grounds that “oneness” meant the
man was beating or killing himself, which was simply suicide and not
prosecutable. That argument was generally dismissed, but it remained part
of mid-nineteenth-century popular and legal consciousness, and material
for many jokes. In the masculine democracy of the new republic, where
gender trumped rank, male “ownership” of the family arguably made abuse
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of both wives and children culturally and legally acceptable.18 Nevertheless,
the rights of persons were generally becoming more important to the law,
and assault a more serious crime.
Ironically, perhaps, the injustices to women sanctioned by Blackstonian
common law fueled women’s rights advocates. Had Blackstone not cast the
common law so starkly, they would have had less to protest. And indeed, the
women’s movement tended to ignore equity court decisions so as to focus
more sharply on the injustices of the common law. The famous Seneca Falls
Declaration of Sentiments of 1848, seen by many historians as the official
start of the women’s rights movement, plays on the 1776 Declaration of
Independence, substituting “all men and women are created equal” for the
Declaration’s “men” only, and replacing George III’s crimes against the
colonies with men’s crimes against women. The list is a fair summary of
Blackstone’s description of a husband’s powers over his wife in marriage –
a tyranny, according to the authors, like that of a king granted too much
power. The very definition and history of the common law, as Blackstone
had portrayed it, now shaped the legal debate not only in practice, in other
words but also in theory. Tradition had become a weapon for people on both
sides of the struggle.
But tradition was neither as unchanging nor as exploitative as either
side believed. Why? Arguments about the basis of governmental authority
convulsed England during the seventeenth century. Should government
be based on consent or heredity? Constitutionally, from the thirteenthcentury
founding of the House of Commons onward, English government
had been a mixture of the two, but it had leaned more toward heredity. Both
the monarchy and the House of Lords determined the next heir according
to primogeniture, or birthright. Too, most of those elected to the House
of Commons were prominent landowners, many the eldest sons of peers.
Powerful families often controlled which candidate stood for election, and
the suffrage was sharply restricted. No more than 10 percent of adult males
could vote, and qualification was often hereditary, whether directly, through
descent, or indirectly, based on land ownership. Only sometimes could suffrage
be earned, by, for example finishing an apprenticeship and becoming
a “freeman” of particular cities.
Even that was not enough for hereditarian ideologues of the mid-seventeenth
century such as Sir Robert Filmer. Filmer claimed that the sole
purpose of Parliament was to advise the king and that its instructions were
not binding. His arguments were challenged by many mid-seventeenthcentury
religious and political reformers, such as John Milton – and of
18 Hendrik Hartog, Man and Wife in America: A History (Cambridge, MA, 2000), 103–5.
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320 Holly Brewer
course by CivilWar defenders of Parliament in general. Authors of political
tracts in the 1680s renewed the assault, most prominently John Locke,
whose arguments against Filmer greatly strengthened the contentions of
those whose theory of government emphasized consent. His entire Two
Treatises of Government (1689) was a sustained attack on birthright and birth
privilege.
The problem, of course, lay in defining who should be able to consent.
Hereditarians argued that all human beings were born into a state of natural
dependence, and that dependence should (and did) order society. Building
on earlier arguments about religious choice, Locke developed an answer
that contested universal dependence by conceding the difference between
children and adults. All men were by nature born equal, but while children
men were dependent for a period of time and incapable of independent
judgment. Dependence ended at the age children attained reason; that is,
became adults. Reason then supplied the principle underlying the formation
of society. In a society founded on reasoned consent, all men would be equal
under the laws. Children would be dependent on their parents to make
decisions for them until they could make decisions for themselves in a free
and uncoerced manner. Parents should not be able to bind their children
irrevocably: all contracts should be temporary. Children could not be born
into servitude, even if their parent was a servant or slave to another. Likewise
children could not be born owing political obedience.
Locke had a good deal to say about children, but much less about the
rights of masters or husbands. What he did say indicated that even in
those cases consent had to be given freely. Locke hinted that a woman,
while reasonable, might, in choosing a husband, also be choosing a political
representative (in that he would vote on her behalf). He also suggested,
however, that women should have the right to divorce. As to servitude,
Locke held that in only one case – the crime of engaging in an unjust war –
could a person be forced to serve another without consent, for the captive
had in effect forfeited his life to his captor. Still, the captive was to be treated
with respect by his master, was required to labor only for a set term of years,
and retained a primary obligation to his family.
The point that emerges here is that what we would now regard as fundamental
democratic political theory – who could consent, under what
circumstances, who could not, who had authority over those who could
not – was being worked out in arguments over family order. In this merged
arena, the idea that unjust contracts were voidable challenged tyrannical
government by kings and also by husbands, fathers, and masters. To be
just, consent to anything had to be meaningful – fully informed and free
from coercion. Obviously such arguments would have invalidated many
Elizabethan and seventeenth-century labor contracts. At the same time,
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such arguments demarcated a very clear space for childhood and underlay
arguments for expanded custody. Other norms of authority could also
potentially be justified by comparing wives, slaves, and servants to children
in their inability to make independent judgments. Thomas Wood’s Institute
of the Laws of England (1720), popular in colonial libraries, appears to
follow precisely this strategy by exploring in parallel the rights of masters,
husbands, and fathers.
As Wood’s “prequel” to Blackstone suggests, the new synthesis of the
common law under way in the eighteenth century was deeply influenced by
Locke. Blackstone’s crowning edifice – the Commentaries – cites Locke (and
also Continental natural law theorists like Pufendorf) repeatedly. For years,
scholars have debated the political meaning of this development: whether,
crudely, the new common law synthesis should be considered conservative
or radical in its implications. The debate admits no clear answer, for the
Commentaries are an artful mixture: Blackstone upholds hereditary status
and the obligations of inferiors to obey their superiors, but he also argues
that slavery is immoral and should be illegal (at least in his first edition).
Some sections seem to express pure Lockean contract theory, notably Blackstone’s
argument against the wide use of the death penalty. Others adapt
contractarianism to hierarchical precepts.With respect to domestic law, for
example, it can fairly be said that Blackstone made it more hierarchical and
gave hierarchy broader, more universal application.
Blackstone was thus influenced by emerging contractarian ideas at the
same time as he adhered to hierarchical principles and older precedents.
His objective was to create clarity and consistency within the common law
in a way that strengthened the legal authority of many adult men, especially
with respect to their wives. His domestic law was not the work of a
misogynist: by all accounts Blackstone had a close and loving relationship
with his own wife. It is not clear that Blackstone gave much thought to the
practical effects of the powers he attributed men as husbands and fathers.
What is clear is that Blackstone sought to bring order to a disorderly,
haphazard, and neglected mass of statutes and common law precedents
that appeared to obey no principles. Locke supplied principles that could
be useful in imagining the balanced organizational framework Blackstone
desired to create, whose particular twist appealed to Blackstone’s own sympathies
for hierarchy. The twist increased the powers of fathers and husbands
and masters, for it established that those who cannot reason, like children,
cannot consent. Wives can consent, but they consent to their husbands
in marriage, who thereby becomes their representative and acts for them.
Servants consent initially to labor and then are bound, unless the master
releases them. Blackstone cemented hierarchy into the setting of consent by
interpolating an element left over from the medieval common law: the idea
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322 Holly Brewer
of people as property. Locke had carefully avoided that idea in the case of
wives and children and had hedged it even for servants – more so, at least,
than did the law of his own time. Blackstone was not so shy. Here was a
broad exception to the principles of “All men created equal” for it meant
that the contracts were not entered into in equal terms. It would prove a
powerful legal tool, at least for those who sought to maximize its potential.
CONCLUSION
Anglo-American domestic law was not a timeless category: the powers of
fathers and parents were not fixed in an unchanging common law between
1600 and the early nineteenth century, but significantly strengthened.
Those powers increased at the same time as the powers of Lords and masters
weakened (though applied more broadly), and the underlying cause was the
same in each case: the political ideas that powered the three Anglo-American
Revolutions (the Civil War and Interregnum, the Glorious Revolution of
1688, and the American Revolution of 1776). The new revolutionary principle
of authority based on consent grew out of religious arguments that
emphasized the authority of the father/husband and the principle of meaningful
consent as corollary propositions. Political debates affected the common
law and legal practice to reshape the boundaries of domestic authority.
In the common law one finds both accommodation of the new principles of
authority and elements of reaction.
The American Revolution added force to the legal changes whose path
we have observed. Particularly in the late eighteenth century, changes in
legal norms were occurring virtually hand in hand with the development
of democratic-republican ideas about consent. They also occurred hand in
hand with the emergence of new forms of capitalist industrial organization.
The ubiquity of contractualism made it easier to identify and prosecute
debtors, confiscate estates for debt, streamline finance, facilitate mortgages,
and generally increase both circulation of and access to capital. Freedom
of contract could aid transactions by unraveling tangled lines of property
ownership, simultaneously simplifying the lines of responsibility of owners
for debts owed. Freedom of contract could also advance the circulation of
labor, while restrictions on the ability to contract could enable employers
to retain effective control of their workers. We should note that America
offered more possibilities for free labor before the Revolution and that
Americans in the wake of the Revolution never adopted some of the harsh
restraints developed in English law. The Revolution and attachment to the
principles underlying it help explain the latter, whereas opportunities for
westward movement helped forestall the coercive restraint of white labor.
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Anglo-American common law innovation reified and reorganized old and
ubiquitous norms about the power of lords and masters and then preserved
them within the law as a new category, “domestic law.” This category (especially
with regard to minor children) was intrinsic to the newer political
ideas of a government based on meaningful consent. Given its construction,
we should not, indeed cannot, understand domestic law as if it were a phenomenon
lying outside politics. Principles of domestic authority connect
intimately with principles of public authority; public debates and legal
decisions shaped private relationships.
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10
law and religion in colonial america
mark mcgarvie and elizabeth mensch
English religious conflict influenced law in the early British colonies; so too,
however, did commercial ambition and English legal traditionalism. That
inherently unstable combination produced significant reconfigurations in
the eighteenth century, when religion became less obviously formative and
public in relation to law, but no less intermeshed with legal culture and
political conflict. Protestants in America reenacted many Old World religious
conflicts as they struggled to integrate commercial gain, the coercions
of law, and the promise of Christian freedom – or, put differently, as they
sought the right relation between the City on Earth and the City of God.
Their various solutions to that Augustinian dilemma took widely different
forms.
In England Tudor political skill had, for a time, muted religious tension.
Church and commonwealth became a single all-enveloping unity. That
unity, however, masked both Catholic resentment and mounting Calvinist
pressure to distinguish the church from the realm – to “gather out” and
purify the true church of the redeemed. Early Stuarts exacerbated these
tensions exactly when England was extending commercial ventures into
America. Protestants feared the Catholic leanings of the Stuart kings, and
Archbishop Laud’s persecution of dissenters coupled the Church of England
with Stuart assertion of unlimited prerogative. Puritans, viewing Christ
(and the free consent of believers) as the only true source of church authority,
denounced a hierarchical Anglican episcopacy rooted in Crown prerogative.
Meanwhile, lower ecclesiastical courts, charged with enforcing morality,
veered from laxness to corrupt and discretionary intrusiveness. Their disrepute
was almost matched by that of English law, with its capriciously
enforced multitude of capital crimes.
Religion drove many dissenting Protestants and some Catholics to America.
In England, civil war (beginning in 1642) led to Puritan Parliamentary
rule, which was followed by the Restoration of Charles II in 1660.
Restoration brought renewed imposition of Anglican uniformity and fear
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Law and Religion in Colonial America 325
of Catholicism until 1688, when the Glorious Revolution established both
Parliamentary supremacy and a Protestant Church of England, with (limited)
toleration of non-conformists. The consequent easing of religious tension
provided a backdrop for the rationalism of the English Enlightenment –
embraced by many Anglican clergy – but also for renewed religious fervor.
Both of those developments in England were reinforced by similar developments
in the colonies.
English settlers came, however, not just as Protestants but also as colonizers.
They arrived under the authority of two written texts: the Bible and
the Law. The first charter of the Virginia Company stated, as its primary
purpose, to bring the “Christian religion to such people [Indians] as yet live
in darkness and miserable ignorance. . . .” Metaphors of darkness and ignorance
filled colonial descriptions of the wilderness, juxtaposed to metaphors,
common in Europe, of noble savages in a state of Edenic innocence. Linked
to metaphors of darkness and ignorance were images of death, idleness, the
void, chaos, wild beasts, and Satan. Thus a Virginia tract described Indians
as in “the arms of the Devil” and “wrapped up unto death, in almost invincible
ignorance.” Into the darkness the settlers brought theWord, and with
it, they believed, light, knowledge, order, and industry.
Metaphors of visibility and darkness perhaps come naturally, especially to
literate cultures, but they carried special power for Protestants schooled in
the primacy of texts (sola scriptura), and deeply familiar with such particular
texts as the Bible, Augustine, and Calvin, in which images of light and
darkness abound. Attitudes shaped and reflected by such metaphors affected
legal treatment of Africans as well as Indians, and also of those who practiced
in the shadows, so to speak, those (pre-literate) arts of the occult called
witchcraft.
Written legal and religious texts embodied authority and reinforced
white male dominance over less literate groups – Africans, Indians, and
women. Massachusetts Bay had a government printer by 1638 chiefly to
print laws and religious works, and New England villages often required
a Bible in every household; similarly, the Church of England inundated
colonies with books of common prayer. Laws were to be read, Massachusetts
magistrates stated, not just in print but in the lives of the people themselves
– inscribed in the heart, like scripture. Throughout the colonies laws
and public announcements were read in churches. After the 1750s a republicanized,
secular print culture emerged, with vigorous debate of public
issues; but in the early colonies written texts embodied a unified political
and religious authority.
Outsiders to the dominant culture suffered catastrophic ostracism. Indians
who survived white diseases often had two options: conversion or death.
Massachusetts Puritans, for example, published enough native language
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326 Mark McGarvie and Elizabeth Mensch
Bibles for one of every 21/2 Indians, and set up more than thirty “praying
towns” with regular schedules of work and worship; but they also invoked
“l(fā)ight” from the Word of God to justify igniting the flames that burned
(alive) an entire Indian village. Anglicanism offered an elaborate spiritual
defense of brutal race-based Southern slave codes, and execution (by burning,
hanging, and the wheel) of rebel New York City slaves underscored
the legal violence even of Northern slavery. All colonies founded before
1660 had laws against witchcraft, which were enforced most rigorously in
New England: occult practices were implicitly associated with the wilderness
and with African and Indian pagan “darkness.” English enforcement
of equivalent laws died out well before colonial enforcement.
The colonists’ legal and religious relation to outsiders, of course, was
not one of pure conquest. Indians resisted conversion, were shrewd partners
in war and trade, and litigated in colonial courts; slaves negotiated
rights, became adept at passive resistance, and learned to invoke the implicit
egalitarianism of Christian baptism; and legal excesses at Salem were sufficiently
embarrassing to end New England witchcraft trials, despite lingering
enforcement in the South. Nevertheless, colonial elites undeniably
used religion in relation to law to legitimate social control – not just as
colonizers but also within their own white communities. “Social control”
as an explanatory category, however, is excessively reductionist: it denigrates
sincerity of belief and ignores difference. Most early colonists used
law to construct Protestant community – to give concrete embodiment to
faith. The chief purpose of law was not to protect individual rights (the
preoccupation of a later period) but to build a Christian polity. Indeed, for
many, liberty itself meant the liberty to form a godly community, which
necessarily required, however paradoxically, a high degree of social control.
The first section of the chapter describes some general features of the
interaction of law and religion in the colonies and some common historical
changes. Subsequent sections, describing six distinct colonies, explore
significant differences that those commonalities mask.
I. COMMON THEMES
Most British colonizers came to America for profit and expected law to
serve that purpose. Like other Europeans, however, they assumed the value
of a Christianized culture ,in which self-interest was subordinate to God’s
will, as served by hierarchy, order, and Christian communalism. To reinforce
Christian values eleven of the original thirteen colonies legally established
Protestant churches, requiring tax support and regular attendance.
All colony-wide religious establishments were either (Puritan) Congregationalist
or Anglican, but some colonies created a “multiple” establishment,
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which allowed each locality to establish its own churches. Often, only the
established church could promulgate creeds taught in schools or perform
weddings or baptisms, and only members could vote or hold office. Notably,
the two colonies that rejected establishment (Rhode Island and Pennsylvania)
did so on specifically theological grounds. Therefore “establishment”
in the colonies is best appreciated not as a particular legal arrangement
but as the cultural reflection and promotion of Christian values – values
that competed with economic and military influences, as well as English
legal traditionalism, to form colonial law. Throughout the colonies, including
those with no official establishment, churches played a central role in
educating the young, establishing community norms, and shaping law.
The egalitarianism latent in Reformation theology sometimes came to
the fore and, especially in New England, cut against hierarchical extremes.
Nevertheless, to the early colonists community implied some social hierarchy,
with each station performing its sanctioned role. Ministers from
Massachusetts to South Carolina preached both deference to social betters
and the obligations entailed by privilege: when social position was
ordained by God, attendant duties did not seem a violation of “earned”
private right. A pervasive model for hierarchy was the household, where
the father’s loving governance of family, servants, and economic production
ideally eased the Christian tension between enforcement of ethical norms
and the requirement of boundless forgiveness – between the demand of law
and the promise of grace. Law reinforced household authority by imposing
public corporal punishment to control servants and slaves, and to strengthen
family-based moral discipline, while also imposing duties on the wealthy
to give support to workers, orphans, or the indigent. Early Virginia records
document the prosecution of a “runaway master” who “fled from his servants”
to evade supporting them and show parish assignment of poor boys
to work for wealthy individuals, whether needed or not. Ironically, such
laws foreshadowed later Anglican defense of race-based slavery as a paternalistic
embodiment of Christian love and charity, yet even in the North
charity reflected a pre-modern understanding of hierarchy and deference;
it was intended to relieve individual suffering, not transform the social
order.
Colonial laws relating to economic activity further reinforced communitarianism.
Clergy not only admonished greed and encouraged charity but
also specifically endorsed commercial restrictions that were even more rigorous
than those endorsed by their Catholic counterparts in Europe. Some
historians have recently argued that colonial Massachusetts flourished by
linking communitarian ethics with an emerging capitalism. Nevertheless,
the Bay government structured its markets to serve community in a manner
unfamiliar to modern capitalism: it limited land distribution to “worthy”
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328 Mark McGarvie and Elizabeth Mensch
recipients, controlled prices and wages, prosecuted merchants for seeking
unjust profits, and limited all business activity to prescribed times and
places.
Most colonies adopted the Reformed view that government, as an “ordinance
of God,” should protect the individual’s moral as well as civil welfare.
Criminal law in Virginia and in New England referred to “sin,” implicitly
accepting the obligation to construct Christian conscience, not just preserve
civil peace. Penal law provided the moral definition of community,
and the earliest colonies instituted significant reforms. They eliminated
lower ecclesiastical courts (despised by Puritans), virtually abolished execution
for property offenses as inconsistent with scripture and level of moral
blame, and heightened criminal liability for personal misconduct. Corporal
punishment provided public moral instruction, often including sermons at
executions.
Even a rough contrast between early New England and Chesapeake penal
law, however, shows the difference between Puritan and Anglican influence.
New Englanders, shaping their polities on the model of ancient Israel,
adopted English legal categories only if consistent with the Bible and used
scripture as the direct source for roughly half their criminal law. New
England also dropped capricious mitigating pleas, like benefit of clergy,
since literacy and wealth implied heightened moral accountability, not
privileged excuse. The earliest Puritans trusted magistrates (“Gods upon
earthe,” said Winthrop) to apply law with equitable Christian discretion;
admonishment was often sufficient punishment. Codification followed later,
with its own didactic value.
By contrast, Southern Anglicans often reintroduced a modified ecclesiastical
court system by entrusting church officers to report personal misconduct
to county courts. Reflecting the public, political nature of Anglican
ecclesiology, discretionary legal enforcement aimed more toward preserving
outward public peace than building inner righteousness. Particular laws
were usually taken from England, not scripture, and defined judicially, in the
name of paternal authority, not by codes. Judges, eschewing mere admonishment,
allowed traditional English mitigating pleas and relaxed punishment
for gentry while operating in terrorem in relation to the large servant classes
who, before the huge slave purchases began in the late seventeenth century,
constituted roughly three-fourths of Chesapeake immigrants. The only two
early colonial executions for theft, for example, were of Virginia laborers.
Thus, put generally, early Puritans used penal law to serve scripture, whereas
Anglicanism used religion to spiritualize English traditionalism; Anglicans
sacralized law and a paternalistic social order, Puritans prepared the godly
for salvation. Nevertheless, in each case the goal was a version of Christian
community.
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By the late seventeenth century, communitarianism showed the strains of
entrepreneurial efforts to recruit new inhabitants, even as disaffected second
and third generations felt the pull of commercial opportunity and unsettled
land. Religious diversity also became common, leading to accommodation.
Nevertheless, pluralism did not automatically produce a high level of toleration.
Throughout the seventeenth century nearly all colonies had laws to
deter heterodox religious practice, and prosecutions for blasphemy, heresy,
sedition, contempt, passion, breach of the Sabbath, or religious deviance
continued into the eighteenth century. In 1703 South Carolina made blasphemy
a crime, defining it as “defaming any person of the Trinity, denying
the truths of Christianity, or denying the divine authority of the Bible.”
New York prosecuted a blasphemy case pursuant to an already existent
statute during the same year. Delaware brought a blasphemy suit in 1705,
Maryland in 1710, and North Carolina in 1717. Protestants who dissented
from established churches could be prosecuted, along with agnostics, Jews,
and Catholics; Connecticut passed a new law in 1742 against itinerant
preaching to stifle evangelicalism.
While establishment waned between 1660 and 1690, that waning was
followed by fresh efforts to establish Anglicanism, vigorously supported by
England and by colonial officials. Especially when coupled with the imposition
of English law, Anglicanization of other Europeans often meant a
significant reduction in women’s legal rights and cultural influence. Meanwhile,
Congregationalism remained strong in New England, where most
people still lived within six miles of a church. Congregationalism also had
the advantage of well-educated, locally ordained ministers. In 1690, 90 percent
of all colonial congregations were either Congregational or Anglican.
In the next eighty years that reality changed dramatically as immigrants
from Germany, France, Ireland, and Scotland came to the middle colonies.
By 1770 only about 20 percent of congregations were Congregational and
15 percent Anglican. Meanwhile, commercialism led to the increased use of
law to structure competitive property and exchange relationships, not the
godly life. The eighteenth century brought a vast proliferation of printed
law forms, which preceded the dramatic expansion of a professional lawyer
class in mid-century.
Several historians have seen in these changes a breakdown of the communitarianism
once premised on religious homogeneity and the seeds of
an individualistic ideology that prompted political revolution. The Great
Awakening, starting in the 1730s, can be seen either as consistent with
those trends or as a reaction against them. During the Awakening, New
Light preachers combined human-centered emotional appeals with invocation
of a God-centered communal existence. Preachers became a “means
of grace,” exciting listeners to frenzies of repentance that bent their wills
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330 Mark McGarvie and Elizabeth Mensch
toward conversion. Despite its flirtation with Arminianism – the human
capacity to achieve righteousness – New Light doctrine restated human
depravity and dependence on divine grace. Yet, Jonathan Edwards argued,
people could hasten the coming of the millennium by forming a new, perfected
social order, a “union of believers” joined together in regenerate
love. Awakening preaching was radically egalitarian while simultaneously
evocative of an earlier, legally structured Christian communitarianism. To a
degree especially surprising in the South, Awakening congregations broke
down barriers based on race, gender, class, and even literacy.
Established churchmen reacted with alarm, even describing New Light
emotionalism as Satanic. Governments helped head off the assault. Several
New England legislatures, for example, enacted laws in the 1740s to discipline
government officials and ministers who endorsed separatism, itinerant
evangelicalism, or emotional piety. Similarly, in the South planters feared
the Baptist and Methodist challenge to legally structured inequality. Gentry
seized control of churches to strengthen the Anglican establishment, but
persecution only fortified New Light dissenters: convinced by faith, they
calmly accepted martyrdom.
Established churches could not absorb the force of the Awakening’s piety.
Dissenters migrated to other churches, such as Baptist, Presbyterian, or
Methodist, sapping power from integrated corporate systems of church and
state. A crucial development of this post-Awakening period was the vigorous
growth of non-established American denominationalism, with its
combination of hierarchy and autonomy, cross-colonial ties, and local independence.
Denominational associations were at the forefront in adapting
legal categories still on the border of an emerging distinction between
public and private (such as incorporation, trust, and property) to fashion
their identities as private, voluntary institutions protected by law to serve
a quasi-public moral role. As their institutional structures became increasingly
intermeshed with existing legal and social structures, denominations
typically gained respectability but lost New Light perfectionist zeal; old
divisions of class, race, and gender reemerged.
Although it united some evangelicals within denominations, the Great
Awakening isolated many from the traditional established churches and also
from commercialism and rationalism. By mid-century the market economy
had outgrown the parameters of providentialism and communalism. New
Lights who sought to perpetuate an archaic model of religious community
viewed the new economy with disdain, condemning its greed, inequality,
and self-indulgence. Equally great was the shift New Lights precipitated
within the established churches, in which Congregational and Anglican
exponents of rational religion united with traditionalists in opposition to
evangelicalism. As in England, Arminianism combined with natural law to
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direct established religion toward secular, Enlightenment rationalism. In
effect, the social radicals, the evangelicals, became the religiously orthodox,
whereas the social conservatives in established churches became the religious
liberals. By the middle of the eighteenth century religion had divided
American society and positioned itself as a vehicle for social change.
II. REGIONAL VARIATIONS
Generally drawn comparisons and contrasts do not do justice to the richness
and nuance of colonial religious difference. For example, in New England,
Puritan theology was a decisive force, in effect subordinating civil government
to religious truth; during the colonial period New England struggled
against the amoral effects of commerce on its legally structured religious
community. Yet internal struggles arising from paradoxes within Reformed
theology itself produced Rhode Island’s extraordinary Baptist experiment
in religious liberty, the unusual but consequential history of which cannot
be captured under a general heading, “New England.”
Similarly, the Middle Colonies, subject of recent historical attention due
to their diversity and rapid commercial development, cannot be described
by reference to pluralism and commerce alone. Pennsylvania’s legal history,
shaped by Quaker, pietist, and other sectarian influence, is different from
New York’s, with its often-violent struggles between a forced Anglican
establishment and Dutch and dissenter resistance.
Finally, in the South, Anglicanism demonstrated its expansive capacity
to envelop and spiritualize the legal and social order by sanctifying even the
privileged moral license and slave laws of gentry culture. Anglicans refused
to convert slaves, despite pressure to do so by clergy in England, and thereby
reinforced the white construction of Africans as a heathen “other.” Only
Awakening evangelicals rekindled Christians’ latent, egalitarian longing
for a true community of believers, challenging Southern traditionalism. Yet
Anglicanism in Maryland was different from Anglicanism inVirginia, being
more Calvinist and also shaped by an extraordinary preoccupation with the
perceived threat of Catholicism. Maryland’s legal conflicts, often carried
back to England, were utterly unique but at the same time representative
of the extent to which America’s Protestant culture still defined itself by
opposition to Catholicism – a fact of lasting historical significance.
Despite those differences, regional commonalities are helpful in characterizing
general forms of colonial establishment. New England townships
attempted to preserve Christian homogeneity and communitarianism until
well into the nineteenth century. Congregationalists, Presbyterians, Quakers,
and Baptists shared a common Reformation heritage, imbuing New
England with cultural similarity despite sectarian differences. Religious
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332 Mark McGarvie and Elizabeth Mensch
establishment persisted in New England longer than elsewhere, usually
into the second or third decade of the nineteenth century; Massachusetts
continued public support of churches until 1833.
The mid-Atlantic colonies were the most diverse: Germans, English,
Irish, Dutch, and Scots migrated to New York, Pennsylvania, Delaware,
and New Jersey. Yet, diversity did not necessarily inhibit religious establishment.
Dissenters were often taxed to support an established church and
accepted its role in public functions, and the wide variety of sects led to
more congregations, relative to population, than in any other region. Nevertheless,
residents chafed at laws that restricted individual freedom and
economic initiative. By the mid-eighteenth century, New York City and
Philadelphia had become major cosmopolitan centers of business, ideas,
and entertainment. Economic expansion and religious diversity eroded the
authority of religiously inspired law, and most mid-Atlantic states disestablished
their churches in revolutionary-era constitutions. In the process,
churches were also removed from performing vital public tasks like education,
poor relief, and record keeping. The states were slow to assume
those responsibilities, leaving them to the (unreliable) beneficence of the
wealthy.
By 1703 Anglicanism was established in each of the Southern colonies.
Southern Anglicanism reflected both the influence of the English Enlightenment
and the deference to gentry domination that characterized the South’s
paternalistic honor-based society. Anglican devotion to social order served
as the glue within a society divided by wealth, race, and culture. Along with
frontier Indian wars and race-based slavery, Anglicanism helped define white
culture as a unified, inclusive, morally based community, notwithstanding
inequalities in wealth and education far more extreme than in other regions.
Under the parish structure churches assumed a significant role in governing,
but the autonomous moral authority of the church was never strong
and declined in the eighteenth century when religious growth occurred
almost exclusively among rural Baptists and Methodists. Southern colonies
disestablished their churches during the constitutional era, 1785–1800.
New England: Massachusetts
English Puritans were convinced that a true church of the elect (those
redeemed by God’s grace) could not survive within a church ruled by the
Crown rather than Christ, and they believed that the (predestined) elect, servants
of Christ on earth, must be free to shape their churches to conform to
the gospel. In America, therefore, self-governing congregations formed the
colony’s primary social structure. Civil authority, exercising coercive force,
gained legitimacy only to the extent that it governed consistently with
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church teachings. Puritan ventures to Massachusetts thus sought not only to
secure churches conducive to Puritan worship but also to form civil societies
that would adhere to scripture; like Calvin in Geneva, Puritans designed
their governments to serve the church. While Puritans scrupulously separated
realms of church and state authority, their polity suppressed heresy,
enforced laws of Christian morality, and acceded to advice of church leaders;
conversely, ministers used sermons to reinforce civil authority, preaching
strict obedience to civil law.
Puritans believed God provided natural reason so people could comprehend
the world, if not its Creator. Yet, as inherently sinful, people must
subordinate their ambition to God’s will. Piety, the proper human attitude,
required devotion of natural talent to furthering God’s will as expressed in
scripture. While nobody could merit salvation by works, God’s covenant
required that people serve God in return for the possibility of salvation
for some, and held each person responsible for the welfare of the whole.
Taking love of neighbor to be a sign of salvation, Puritans put group above
individual and used scripture to shape legal definitions of the public good.
Massachusetts began as two separate colonies, which were not united
until the late 1600s. Pilgrims, who were radical Puritans seeking complete
separation from the Church of England, reached Plymouth in 1620. Since
the colony had no specialized police, law enforcement in early Plymouth
meant imposition of community norms by group action. Civil law was integrated
with church doctrine, and disputes were resolved in three institutions
with overlapping jurisdiction: town meetings, church congregations, and
law courts. Any dispute could be brought to any forum, but town meetings
generally resolved the few cases that set policy for the entire community.
In each forum the goal was the same: restoration of community through
extirpation of sin, which was, by definition, whatever caused division and
antagonism, civil or criminal.
In 1630, less radically separatist Puritans settled a second Bay colony. The
newly elected Governor, John Winthrop, arrived with a charter signed by
Charles I that created a joint-stock company dedicated to earning profits; it
allowed the company to establish any laws not in conflict with English law.
Immediately, however, the colonists ignored even this minimal limitation,
looking chiefly to the Bible, not England, for direction. The charter authorized
the creation of “one greate, generall, and solempe Assemblie” known
as “The Great and Generall Courtes,” with executive, legislative, and judicial
authority. Court members, or magistrates, bound by law to serve God
and Gospel, exercised essentially equitable authority. Ministers were regularly
summoned to advise magistrates, even on matters of trade and foreign
relations. Moreover, the body politic itself was constituted only of (male)
church members. While membership rates for early years are uncertain, by
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334 Mark McGarvie and Elizabeth Mensch
1652 perhaps half of adult males were church members, a percentage that
declined during the century.
Colonists brought private disputes to the General Court, which had
original, and later appellate, jurisdiction over criminal and civil matters.
The use of a consent-based political body to adjudicate personal disputes
reflected the communitarian attitude that all matters were public and also
the Puritan belief that the soundest “l(fā)aw” was the discerning judgment of
the godly people. Church elders served as a final court of appeals, resolving
disputes over charter interpretation and General Court authority; possibly,
this process was a reflection of the religious origins of appeal rights (to
Rome). Growth of the colony required division of the General Court into
two houses in 1634. Further growth led to formation of county courts in the
1640s, whose chief function was to maintain “an able and faithful ministry”
and remove any “perniciously Heterodox” preacher.
Early laws secured conformity by requiring support of congregational
churches and attendance at services; full church membership came only with
proof of conversion. Massachusetts, unlike Virginia, did not immediately
regulate church attendance: until 1635 no compulsion was necessary. Each
Bay settlement asserted authority to banish heretical groups or ministers
and to regulate behavior to conform to Christian virtue. Laws of the 1630s
and 1640s, before codification, already punished idleness, stubbornness,
card playing, fishing out of season, bowling, drunkenness, lying, swearing,
and taking the Lord’s name in vain. Other laws punished single women for
entertaining men at home or corrupting youth. Notably, however, enforcement
of sexual morality was largely free of gender bias: eradication of sin
meant male as well as female sin.
Laws also fostered communal interdependence. In 1635 the General
Court ordered that no home be built more than one-half mile from a
church. This proved impractical, but later modifications served similar
goals. In business dealings, subordination of private interest to common
good meant merchants and artisans faced criminal fines and civil liability
for the “oppression” of charging more than a “fair” price for goods or
services. Leaders also discouraged controversy and litigation. Before the
1670s most disputes were arbitrated by clergy and resolved on principles
of equity and community norms, with the goal of preserving the integrity
of the community.
Puritans did not think that this communitarianism compromised individual
liberty. Rather, they defined liberty as the freedom necessary to
conform one’s life to God’s teachings. Liberty, which they cherished, was a
pre-condition to the construction of godly community – the opportunity to
fuse Christian piety with service to the public good. Communal peace and
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reciprocal charity were the ends of liberty, not alternatives to the protection
of individual freedom. Accordingly, disputes resolved in law tribunals were
not subject to different goals than those which proceeded to arbitration. As
late as the 1740s, judges charged juries “to use law to create ‘a(chǎn) civil and
Christian state’” so as to eliminate “vice, profaneness, and immorality” and
reform mankind “with a Due Regard to God.”
Later generations, beginning perhaps with Hawthorne, have looked with
morbid fascination on Puritan laws that attacked free expression and sexual
license. Such laws, however, simply recognized widely shared Christian
norms; similar laws existed in England and other colonies, but were enforced
mainly when public peace was threatened. New England is distinctive
chiefly for its prosecutorial rigor and consistency (with enforcement rates
between 200 and 400 percent higher than in the South), and extended
retention (sometimes into the nineteenth century). Massachusetts law texts
explicitly noted their dependence on religion: in 1665 the General Court
stated that “subjection to ecclesiastical discipline is necessary for the wellbeing
of any Christian society,” and until 1672 the title page of the code
book often carried a quote from Romans 13:12 – “Whosoever therefore
resisteth the power, resisteth the ordinance of God: and they that resist
shall receive to themselves damnation.” Even in exacting punishment the
colony conformed to scripture. Deuteronomy provided punishment with up
to forty stripes; Massachusetts’s judges usually assessed up to thirty-nine
strokes, always to a bare back, but sometimes “well” or “severely laid on.”
Sex offenses and offenses against marriage constituted over half the prosecuted
crimes and covered a wide range of behaviors, reflecting the crucial
role of family as a microcosm of the public moral order. Puritans were
robustly enthusiastic about sex in marriage, but they feared its errant, defiant
tendencies (mirroring human disobedience of God) and its consequent
capacity to disrupt community. John Hobell in 1641 and Robert Crocker
in 1642 were each whipped for breaching promises to marry. In 1640,
Margery Rugs was given “39 lashes, well-laid on” for behaving in “enticing
and alluring” ways. Two years earlier Alice Burwoode was whipped for
“yielding” and “not crying out” during apparently consensual sex with John
Bickerstaffe, who received thirty-nine lashes for fornication.
The General Court in 1677 required towns to appoint tithing men to
inspect the lives and homes of neighbors, looking for Sabbath-breaking,
intemperance, sexual misconduct, and profanity. These oversight duties,
moreover, were assumed by all townspeople: in 1682, 19-year-old Mary
Brown testified to seeing James Creeke kiss and tickle the wife of another
man. Speech laws not only protected the names of God and Jesus but also
Calvinist doctrine. In 1684, during heated debate between two Calvinists,
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Joseph Gatchell argued that if Christ had spoken as his companion asserted,
He was “an Imperfect Saviour.” Gatchell was taken to the pillory, where his
tongue was drawn and pierced with a hot iron.
The history of the Bay colony can be summarized as a tenacious struggle
to perpetuate Calvinist doctrine within a community radically altered
by immigration, aggressive territorial expansion, Enlightenment thinking,
and a market economy based on profitable international trade. Whether one
sees persistence, declension, or reformulation of Calvinist doctrine depends
as much on perspective as on record. In 1646, confronting declining church
membership and increased heresy, ministers met in synod and drafted the
Cambridge Platform to reassert that all public institutions were derived
from the “Word of God” and were dependent on the true church of visible
saints. Church elders were still to make and enforce the laws, control church
discipline, and shape political debate. The problems did not end, however.
In 1657, again at synod, the ministers adopted the “half-way covenant,”
which gave partial participation in the church and hope of salvation to
baptized persons unable to give testimony of regeneration. More willing
than men to give experiential accounts of conversion, women had become
the majority in full church membership. The half-way covenant provided
the inclusiveness expected of an established church and perpetuated clerical
power.
As compared to other colonies, Puritan New England preserved much
of its ethnic and religious homogeneity and even its relative economic
equality, but it was not exempt from change. By century’s end, growth and
land scarcity led to family dispersal, extended governance, and impersonal
trade relations. Accommodating business transactions between strangers
and even people with different languages, transactional law imposed new
objective standards, reflecting and contributing to rising individualism.
Preachers saw in these changes the erosion of communal ideals: sermons
excoriated listeners for the selfish pursuit of luxury and described plagues
and Indian violence as proof of God’s wrath.
The quest for cultural homogeneity sometimes took a desperate tone. The
witchcraft scares of the late 1600s, for example, may evince the depth of
desire to perpetuate communitarianism amidst fears arising from increased
diversity, social change, and religious uncertainty. Authorities applied old
concepts of law, which integrated Calvinist doctrine and communal values,
both to define and eliminate problems of non-conformity, but the law, the
doctrine, and the values were found wanting. Salem ended its persecutions
with grave doubts about the efficacy of spectral evidence (visions and spiritual
forms), bringing into question the extent to which law could fully
incorporate religious belief. That question hung as a Damocles’ sword over
the viability of a jurisprudence rooted in Calvinist doctrine, but even in the
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mid-eighteenth century, Massachusetts’ courts still admitted hauntings and
spiritual presences as evidence in valuing real property.
Challenges to the Puritan establishment also mounted from outside Massachusetts.
After the English Restoration, Charles II demanded suffrage
rights for Anglicans. The Bay colony, in response, repealed its restrictions,
but then passed new ones requiring all voters to prove, by card or letter
from an orthodox minister, that they were Calvinist in religion, virtuous in
lifestyle, and current in paying taxes and taking communion. In 1684 the
Crown vacated the charter for the colony’s failure to conform to charter prescription
and the laws of England: in support, London cited the Bay’s refusal
to extend the franchise to non-orthodox Christians, its punishment of dissenters,
its use of scripture as the primary source of law, and its incomplete
fidelity to the King. James II installed royal governors to rule Massachusetts.
The Revolution of 1688 was thus as “glorious” in Massachusetts as in
England, but it did not help the colony regain its old charter. Increase
Mather agreed to a second charter in 1691 that provided for a Crownappointed
governor with veto power over all legislation. The General Court
survived as a single house of representatives, popularly elected, but all
Protestants could vote and practice their own religion and all legal decisions
were ultimately appealable to London.
The laws of 1692 accommodated England’s demand for limited religious
toleration, consistent with its own new Act of Toleration. Each town
was ordered to appoint and support an “able learned, orthodox minister or
ministers.” Costs of the minister’s salary, church, and teaching were paid
by general taxes, but dissenters were free to attend and support their own
churches. In 1727, in response to petitions to England, Massachusetts also
created tax exemptions for dissenters, although to be eligible a taxpayer
needed a document from his minister stating he attended a dissenting
church located within five miles of his home and objected to the established
religion as a matter of conscience. Dissenting churches also needed
legislative recognition to receive tax support from an exempt taxpayer. The
paucity of dissenting churches, even in the 1720s, limited the effectiveness
of the exemption provision; Baptist churches had become common in
Massachusetts, but members of less popular sects often had no nearby
church, and irreligious people were required to support their town’s Congregational
churches.
Massachusetts adopted a new court system after consolidation of the
colonies and imposition of the new charter. Even then, struggling against
change, it perpetuated the jurisdictional overlap between law courts and
churches, and churches continued to urge members to resolve disputes
over property and tort among themselves. Also, until the mid-eighteenth
century, election to the jury, by town meeting, required attending a
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Congregational church: the jury, like the congregation of the elect itself,
approximated God’s voice on earth and decided law as well as facts.
Massachusetts consistently sought religious conformity despite growing
resistance. As late as the mid-eighteenth century, laws were passed to give
Jesuits only weeks to remove themselves, and throughout the century crimes
against morality dominated criminal courts. On average, 50 percent of
criminal prosecutions addressed sex offenses (other than rape), violations of
Sabbath, and use of profanity. Until the Revolution Massachusetts punished
adultery with up to forty stripes and the black letter “A.” By mid-century
all colonial America confronted the tension between an emerging modern
economy and the communitarianism of an earlier era, but nowhere was this
tension so great as in Massachusetts, where communitarianism retained
such powerful Calvinist vibrancy.
New England: Rhode Island
The colony of Rhode Island emerged after the legal prosecution of dissenters
had revealed theological dilemmas deep at the core of Massachusetts’s experiment
in applied Calvinism. After banishment, Roger Williams founded
Providence, and Anne Hutchinson settled in Portsmouth. As other dissidents
followed, religious quarrels soon intersected with land disputes,
leading to disruptive township controversies and border conflicts with
Massachusetts and Connecticut. Outside observers saw only anarchy in the
absence of religious establishment. Routinely invoking images of cesspools
and contagion (metaphors of defilement from within), they cited Rhode
Island as proof that toleration of schismatics would always lead to civil
chaos. Nevertheless, by moving from radical church/state separation to
legally protected denominationalism, Rhode Island in fact achieved a high
level of stability by the mid-1700s.
With no charter from England, Rhode Islanders confronted the question
of legal legitimacy as a theological matter of first principle. Williams had
denounced the Massachusetts effort to use law, even law based on the Old
Testament, to serve religion. Such use, he argued (with a characteristic reversal
of metaphor) contaminated Christian freedom and defiled the purity of
Christ’s church with the coercions of the earthly city. Some Rhode Islanders
were eager to take the next logical step: if Christian freedom superseded the
law when the New Testament superseded the Old, then the true Christian
should not be bound by any law. Thus arose the famous Rhode Island tendency
to see even the most minimal civil restriction as yet another instance
of illegitimate tyranny – an antinomian zeal for liberty no less rooted in
Protestantism than the Massachusetts zeal for coerced moral conformity. In
contrast to some of his followers, however,Williams himself did not dispute
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the need for secular law; he disputed law’s contamination of the sacred, and
its claim to divine sanction. Unlike the true church founded by Christ, he
insisted legal authority, tainted by coercion, was a merely human construction,
a concession to human imperfectability. Thus its legitimacy was no
more than provisional: while individuals could be baptized and redeemed,
the state could not.
Given their commitment to Christian liberty the earliest Providence settlers
relied on equality, not religion, to foster community and showed their
Baptist aversion to coercion by trying to minimize the role of formal law.
Government originated as a fortnightly meeting of household heads. When
the first newcomers arrived, villagers laid out equal house lots, fields, and
commons – theNewEngland village without inequality or common church.
The guiding principle was complete religious toleration and church/state
separation. Householders agreed to land distribution and dispute settlement
by five arbitrators, a method considered more rooted in true natural
law than fixed rules. Early records show little crime, with freemen collectively
subduing the rare delinquent. Rhode Island (not uniquely) was slow
to build jails.
Subsequent newcomers were compelled to sign an agreement to obey the
original freemen, who claimed, as a right automatically flowing to risktaking
founders, the privilege to structure their community by limiting
others’ suffrage and land ownership. Newcomers challenged this freeman
definition of “equal” rights and “free” consent, which was never approved
by Williams. The contested inequality at the core of Providence society
produced fateful conflicts that soon reached out to neighboring colonies –
as any Protestant schooled in Augustine should have predicted. The meaning
of religious liberty was itself contested when a woman attended more
ofWilliams’ religious meetings than were sanctioned by her husband. The
town tried to protect the wife from her husband’s beatings, which he considered
his religious privilege to administer. When Rhode Island law refused
to recognize this husband’s freedom to perform his “religious duty,” he led
his wife back to Massachusetts with a rope.
Radical theologians pushed Rhode Island into ever more radical realms of
social liberty. Portsmouth settlers avoided the problem of legal legitimacy
by establishing no secular government at all. Eschewing political authority,
for a time they simply conveyed governance to William Coddington, who
like Hutchinson sought his own direct communion with Christ. Samuel
Gorton, espousing a similar antinomianism, was serially banished from
Plymouth, Portsmouth, and Providence for denying the legitimacy of all
civil authority. Welcome nowhere, he and followers founded Warwick to
live with God as their only judge. In Rhode Island community was achieved
more often by withdrawal and reformation than by law.
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Contested definitions of liberty led to conflicts that threatened the whole
colony with invasion. Rhode Islanders finally asked Williams to seek a
patent from England, by then the only available source of legal legitimacy.
Granted in 1643/4 and reconfirmed after the Restoration by corporate
charter, the patent conveyed full lawmaking and judicial authority. Rhode
Island government could claim English legitimacy, even if not, asWilliams
insisted, divine sanction. After the grant of the patent,Warwick and Providence
loosely joined the governments of Newport and Portsmouth, which
had, without complete success, attempted reconsolidation under the hopeful
motto, “Amor Vincet Omnia.”
In 1647 Rhode Island enacted its first Code of Law. The Code established
a superior court, the Court of Tryals, which for a time simply consisted of a
general assembly and later became a traveling sessions court that heard both
criminal and civil disputes. The prickly question, as always, was legitimacy.
The (unknown) drafters of the Code implicitly rejected the Old Testament
model, as superseded by gospel freedom. Instead, they looked to scriptural
authority for their recourse to English law by basing organization of the
Code on 1 Timothy 9–10, wherein Paul explains that law is not for the
godly, but for the sinful – for those who kill their father or mother, for
murderers, whoremongers, sodomites, and the like. The Code therefore
organized crimes by following those headings, as in “Touching Murdering
of Fathers and Mothers” and “Touching Whoremongers.” This reference
to Paul presumably justified Christian recourse to secular forms of legal
coercion. Then, more than in any other colony, the drafters used English
law as their source, specifically Dalton’s manual for justices of the peace.
Approximately 85 percent of Rhode Island criminal law had its direct source
in England; by way of contrast, Massachusetts took only about 40 percent
of its penal law from England and roughly the same from the Bible.
Consistent with separatist principles, the Code recognized no crimes
of heresy, Sabbath violation, or blasphemy. Reflecting its recent history
and still irrepressible Christian desire for community, however, it did give
unusual attention to crimes of general disorder. For example, it not only
retained the law against riot (dropped by other colonies) but also described
with specificity how riots and breaches of the peace should be handled.
Assault, slander, and defamation were criminalized under the general category
of disturbing the peace, and contempt was described as a “kind of
Rebellion.” Notably absent were offenses against trade, such as fair price
violations, perhaps suggesting the conceptual link between religious disestablishment
and free markets.
The 1663 Charter affirmed Rhode Island’s “l(fā)ivelie experiment” to prove
that a “civill state may stand and best bee maintained . . . ” with religious liberty
and that “true pietye rightly grounded upon gospel” will give sufficient
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“security to sovereignetye . . . ” A further clause released the colony from
conformity to the Church of England. Rhode Island was, indeed, utterly
unique in its degree of church/state separation. It had no parish taxes or
boundaries, no land grants to churches, no tax exemption for church property,
no laws requiring church attendance or urging family devotion, no
clergy authority to license marriages, no public support for education, and
no oaths in court or for swearing in officers.
The disruptive early years might have suggested that Rhode Island’s
“l(fā)ivelie experiment” was doomed to failure; the Christian charity required
to sustain community seemed to require some degree of legal compulsion.
While some groups, notably the Quakers, provided communal cohesion and
mutual support, elsewhere basic services like education and poor relief, publicly
supported within a parish structure, were often neglected. Williams
was forced to urge aid for specific cases of need, suggesting the lack of
routine care. Eventually, however, a new set of legal understandings began
to emerge that would remain workable even for the post-Revolution state
government. By the mid-seventeenth century, radical separatism had left
churches with minimal institutional structure – often not even a building –
and no ties to the legal order. This stark separation began to change in the
late seventeenth and early eighteenth centuries in ways that shaped legal
culture, even as a proliferation of printed legal forms and an expanding
legal professionalism began to shape religion.
One example, recently traced, serves as an illustration. In 1676 John
Clarke, a leader of the First Baptist Church in Newport and Charter negotiator,
died leaving a large bequest in trust for relief of the poor and education
of poor children, with instructions to trustees to have special regard for those
who feared God. A charitable trust specifically to benefit poor Baptists was
arguably precluded by English law, which prohibited donations to religious
uses outside the Church of England, and by Parliament’s Charitable Uses
Act of 1601, which limited permissible charitable uses largely to the secular,
underscoring their public nature. Charter language about repugnancy
to English law therefore might void colonial bequests to a non-Anglican
church. While Clarke had not confined charitable benefits to Baptists, he
had clearly wanted First Baptist oversight of the trust and its uses.
Trouble arose when an irresponsible Baptist trustee used trust land for
his own benefit. A fellow congregant sought the Newport Council’s help,
and the Council tried to seize the property for town use. Extensive legal
proceedings, including threatened appeal to England and two Acts of the
Rhode Island General Assembly, produced Rhode Island’s first charitable
trust law, which uniformly protected charitable bequests in trust to any
religious denomination or secular charity. In practice the law allowed
extremely broad trustee discretion while also authorizing legal supervision
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342 Mark McGarvie and Elizabeth Mensch
to prevent corruption. Subsequent trustees of the Clarke bequest submitted
accounts to prove honest management, but otherwise owed nothing to the
public and in fact used the trust for a building and for clergy salary, not just
charity.
Starting with complete disestablishment, early Rhode Island law thus
began to pre-figure reconceptualizations of church/state relations in postrevolutionary
America whereby religion would support charity and moral
community from within a realm of private ordering, with resources protected
by the (public) law of property, corporation, and trust – and ultimately
by the Constitution. The public construction of moral community,
and of conscience itself – a task central to Puritanism – would drop from
view, as would the public nature of private law categories themselves.
Another aspect of the Clarke case also illustrated emerging trends. When
litigation produced church conflict, a sister Baptist church was called to
arbitrate. Arbitration exerted moral pressure on the wayward trustee to
surrender authority, averting Council intervention. This move strengthened
denominational ties, once almost non-existent among Baptists, and
illustrated the subtle coordination of (public) legal action and (private)
religious persuasion – pointing toward religion’s future role in the new
republic.
Institutionalism grew quickly. Baptists owned property, erected buildings,
paid educated ministers with endowments, and founded a college
(now Brown University) – all activities that embroiled them in the legal
system to a degree that would have shocked John Clarke no less than Roger
Williams. This involvement with law strengthened the legitimacy of legal
professionalism while protecting the strength of professionalized institutional
religion. Denominationalism advanced on a foundation of institutional
strength ,secured by legally protected wealth and autonomy, producing
structures of hierarchical authority that roughly paralleled, and
subtly reinforced, the formalized hierarchical legal order under the charter.
Other denominations, especially Congregationalists, brought links to
other colonies, and even Baptists formed intercolonial ties. Quakers flourished,
as did a Jewish synagogue at Newport. Anglicanism was popular
among the upper classes, although Rhode Island resisted all moves toward
its establishment.
Incorporation paralleled trust law. The Anglicans’ Trinity Church in
Newport was the first to seek incorporation. Other Anglican, then Congregational,
and one Baptist church followed. Incorporation guaranteed property
protection and some degree of state coercion to enforce church rules, as
with pew rents, but never became the instrument of political establishment
it was in some colonies. Quakers, rejecting the government support that
incorporation still implied, achieved similar goals by the adept use of trust
and property law.
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With no established church, Rhode Island experienced Great Awakening
intra-denominational controversy, but not upheaval. Even the Revolution
did not destabilize forms of governance that had become traditional.
Church and state achieved a mutual accommodation and reinforcement that
strengthened both law and religion without undermining a shared cultural
commitment to religious freedom, as it was understood. Ironically, given
the quarrels that led to Rhode Island’s founding, “as it was understood”
meant as defined, in large part, by the state’s legal culture.
The Middle Colonies: New York
The story of law and religion in New York is in part the story of America’s
future. From the start the colony dedicated itself to trade and profit, not
religious purity, and its population was characterized by a religious and
ethnic diversity unimaginable in New England. On the eve of the Revolution,
however, the shared culture of mutually defining and reinforcing
legal and religious forms, which had finally emerged in Rhode Island, still
eluded New York. Instead, religious quarrels intersected with quarrels over
the meaning of crucial legal categories like property and corporation. New
York had accommodated rampant diversity; nevertheless, it still struggled
over a basic question of governance – freedom’s relation to hierarchical
authority and the coercions of law.
The Dutch preceded the British to New York and profoundly influenced
the province. The charter founding New Amsterdam in 1628 stipulated an
established Calvinist Dutch Reformed Church: no other religion could be
publicly admitted, and the West India Company (WIC) pledged to provide
suitable preachers under supervision of the church governing body, the
Classis, in Amsterdam. The first minister, or dominie, arrived promptly,
expecting to build a structured religious life coordinate to the structured
polity planned by Governor Stuyvesant – tight burgher regulation of both
civic life and economic activity. Stuyvesant assumed that civic control
depended on religious uniformity and cooperated with the dominies by
stamping out dissidents: he jailed Lutherans just for conducting home worship
services.
Nevertheless, by the 1640s this tidy model of cooperative church/civic
control confronted a social reality of inhabitants from at least a half-dozen
countries speaking eighteen languages and practicing religions that included
Catholicism, Judaism, and a dizzying variety of Protestant sects. The
WIC, eager for the profits that accompanied population growth, directed
Stuyvesant to lift regulation over both religion and trade. The dominies
despaired but after mid-century abandoned the goal of unity and successfully
built up their own thirteen Dutch churches – until the English takeover.
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The English seized New York in 1664 and ruled under a proprietary
patent from Charles II to his brother, James, which conveyed virtually
unlimited political, economic, and religious authority. James delegated
authority to a series of English governors who established a small provincial
aristocracy: huge manorial land grants, with the option of manor courts,
were combined with commercial monopoly privileges and government contracts
to consolidate aristocratic power.
Anglican and some Dutch clergy located themselves within this aristocracy,
but during the first years of English rule there was no move toward
establishment. Instead, under the plural structure of the early Duke’s Laws,
limited toleration masked subtle forms of civil control. The Laws mandated
a parish system wherein each parish elected overseers who called
(chose) an ordained Protestant minister – not necessarily an Anglican. Overseers,
backed by courts, collected money for church construction, salary
payment, poor relief, and general management of parochial affairs. These
civilly elected church officials also reported, in open sessions, all “swearing,
prophaneness, Sabbath breaking, drunkenness, fornication, adultery, and
all such abominable sinnes.”
Governors and courts rigorously enforced support for churches, but taxes
were resented and local ministers became identified with the colonial political
order. Moreover, officials easily exerted pressure over potentially disruptive
ministers: dissenting preachers who moved in anti-Anglican directions
of greater church purity (for example, by refusing infant baptism) could be
threatened with no salary. In consequence, often Tory ministers preached to
rebellious congregations. Antagonism ran high, linking political grievances
to religious dissent.
Dutch resentment was especially intense. Close ties linked Dutch and
English upper classes to conservative Dutch and English clergy, but the
majority of the Dutch still resented English rule. Resentment mounted
when the English instituted aggressive Anglicanizing measures, closing
Dutch schools and imposing English Law and a Naturalization Act. Under
English coverture law women lost their legal identity at marriage and could
no longer manage property. By contrast, Dutch women were accustomed
to owning property, engaging in trade in their own names, and enjoying
the benefit of inheritance laws that reflected their relatively strong position
in Dutch culture. The economic and cultural subservience expected by the
English was alien to them.
New Yorkers stubbornly resisted English attempts to impose uniformity.
An “anti-Catholic” rebellion, waged with Dutch leadership in the name
of Calvinism and England’s Glorious (Protestant) Revolution, succeeded
briefly between 1689 and 1691. When it was quelled, the new governor,
Benjamin Fletcher, convinced the Assembly to pass a Ministry Act, which
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he interpreted as establishing the Church of England in New York City and
four provincial counties. Nevertheless, elected vestry and wardens, backed
by the Assembly, refused to call an Anglican minister. Fletcher then granted
a corporate charter to Trinity, New York City’s new Anglican church. Under
that charter the elected civil vestrymen were required to collect funds for
Trinity’s rector from city inhabitants; the rector could sue them for refusal.
The corporate body of Trinity elected separate vestrymen, so that the governing
body of the church was insulated from control by the (usually dissenting)
elected civil vestry – an ironic move in the direction of privatizing
the corporation even while publicly enforcing Anglican establishment. In
a parallel move Fletcher incorporated the Dutch Reformed Church, so that
Dutch and Anglican churches, both under the control of conservative ministers,
formed a mutually congenial elite. Both Trinity and elite Dutch
churches received extensive land grants; one Dutch dominie with close ties
to the Anglicans also received a personal grant of 700,000 acres.
The Fletcher grants of land and corporate privileges, given exclusively to
Dutch and Anglican churches and to a few powerful individuals, contaminated
religion and politics for decades. Identified with a monopolized and
Crown-controlled economy and at odds with growing commercialization,
the grants left many inhabitants disillusioned with religion in general. Poor
relief and education, entrusted to churches, suffered from conflict and indifference.
The result was quiet alienation among the Dutch (who resented
their own privileged clergy’s alliance with the English) and also among
most of the English (who were never majority Anglican).
During the early eighteenth century the Society for the Propagation
of the Gospel in London dedicated new resources to Anglican missionary
work. With London financing and provincial government support, Anglicans
could proselytize on a scale no other religion could match. Books of
Common Prayer, many in Dutch, inundated the province. Anglicans made
inroads among French Protestants and also among Long Island Congregationalists,
as Cotton Mather noted with dismay in 1706. So too, they
finally converted many disheartened Dutch. Missionaries taught children
English while catechizing them: the goal was cultural as well as religious
conversion. To aid Anglican education, the governor under Queen Anne
pressured the Assembly to pass an Act for Encouragement of a Common
Free School, with the salary of an orthodox Anglican schoolmaster paid by
a general tax.
In reaction, there was a brief resurgence of Dutch culture. Indeed, the
first stirrings of the Great Awakening in America occurred among the New
York Dutch, brought by Theodorus Frelinghuesen of the Raritan Valley.
Frelingheusen attacked the hierarchical structures and formalized worship
that characterized both the Church of England and conservative Dutch
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346 Mark McGarvie and Elizabeth Mensch
churches, and his emphasis on the intense awareness of sin that must precede
the experience of grace led him to challenge upper-class complacency.
Preaching for a time in a barn when conservatives took over his church, he
drew on the ordinary experience of Dutch farmers, not the conventions of
formalized worship, to convey his radicalized message of sin and redemption.
Soon, however, he was just one of many New Light preachers forming
evangelical alliances across denominational and cultural boundaries; Dutch
distinctiveness dropped out.
By 1750 the colony’s embrace of commerce had influenced its law, and
many New Yorkers did not attend church: the unchurched, the New Lights,
and religious traditionalists emerged as three separate political forces. Religious
splits had also been exacerbated by the pressure of extensive grants
on land availability. Whereas some governors favored the Fletcher policy
of achieving legal/religious control through land conveyance, others,
following Crown policy, disfavored huge grants because they stifled development,
despite lenient tenancy terms. The Crown also defended Indian
land claims for the sake of retaining Iroquois allegiance; attacked by the
French and their Indian allies, the Iroquois were not protected by white
settlers, whose main concern was land, not the honor of alliance. Repeated
government grant revocations and rerevocations rendered titles uncertain;
so too did vague boundaries, Indian claims, and frequent failure of proprietors
to honor semi-feudal obligations like quitrent payments – even while
tenants were pressured to honor theirs. Conflicts arose as settlers, often with
governor approval, established dissenting New England-type townships on
lands claimed by proprietors.
Such conflicts, often violent, became commonplace after mid-century.
They dramatically juxtaposed two models of religious life, Anglican and
dissenting (with unchurched liberals often joining dissenters). And they
illustrated, in externalized form, the same Protestant tension between hierarchical
public order and radical Christian egalitarian freedom that the
Puritans tried so hard to contain. Legally, such conflicts dramatically pitted
ownership by title against ownership through labor and use. In handling
resulting disputes, lawyers began to construct a conception of rights that
could protect property from either religiously sanctioned political hierarchy
or disruptive, dissenting, leveling usurpation. But that process was far from
complete on the eve of the Revolution.
Similar conflicts occurred in relation to incorporation, which in Rhode
Island already meant impartial legal protection for a variety of independent
associations but in New York still represented religious and political
privilege. During the King’s College debates, right before the Revolution,
a famous “Triumvirate” of Enlightenment Whig journalists of the type
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represented by Franklin in Pennsylvania joined with Presbyterians to argue
that an educational corporation should mean a self-governing corporate
body chartered by the Assembly, not, as proposed, a delegation of Crown
authority subject to and incorporating Anglican ecclesiastical authority;
the Triumvirate made explicit comparison to an economy weighed down
by monopoly privilege and Crown control, in contrast to the vigor of free
commerce. They lost the battle, and King’s College (now Columbia) was
incorporated under the Crown. They lost because conservative Dutch clergy,
promised an endowed professorship, helped urge Assembly passage of the
Anglican corporate form. Debates during the 1769 elections compelled the
Assembly to extend incorporation rights to all Protestant churches and to
allow exemptions from church taxes in the four counties where they were
still collected. The governor vetoed even those changes, however, although
fewer than one in ten New Yorkers attended an Anglican church.
Thus, the much-cited (and very real) pluralism and materialism of New
York masked lingering vestiges of starkly hierarchical conceptualism, incorporating
ecclesiology, legal form, and social/economic ordering. That hierarchy
had suffered repeated challenge. Resulting conflicts remained unresolved
but an evolving legal conceptualization had started the process of
aligning religious and market freedom, each as associated with an emerging
privatization of property and corporation rights.
The Middle Colonies: Pennsylvania
Pennsylvania emerged from paradox. Founded by a pacifist sect that shunned
worldly power, it quickly produced a sophisticated legal framework for
government, an effective system of social control, and a learned and prosperous
group of leaders. In short, it mirrored the paradoxes of its founder, a
dedicated Quaker who was also a skilled profit-seeking gentleman lawyer.
Pennsylvania contained such sectarian diversity that visiting ministers commonly
likened it, with New York, to Babel – a reference once reserved for
quarreling Europe. In contrast to the hierarchy/voluntarism conflicts ofNew
York, Pennsylvania’s competing religious directions moved horizontally, so
to speak, from all-inclusive spiritualism to strict Biblicist separatism. Quakers
were its dominant influence, but that influence created a legally secured
spiritual ecumenicalism that precluded religious establishment and opened
the way for the rationalized ecumenicalism of the Enlightenment.
By the 1680s, when they came to Pennsylvania in large numbers, Quakers
were already dispersed throughout the colonies but usually as a despised
sect. Quakers publicly ridiculed hierarchy in church and polity, taking it
as sign of sinful pride. Three New England colonies passed laws banning
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Quakers; when they reappeared in Massachusetts magistrates resorted to
tarring, ear cropping, and, in four cases, hanging. The named crime was
sedition.
Quaker theology was Protestant, but tended toward universalism by
describing grace, not as an unearned gift to the elect, but as living spirit
present in all. Quakers believed this spirit, or light of grace dwelling in each
person, could overcome original sin, but in the fallen world carnal pride had
led to hierarchy and violence. Eschewing that violence, Quakers stressed
the role of family and community in nurturing the inner light: tender
conversation, free from self-serving pretenses, could perfect children’s spirits
and maintain the community in near-Edenic innocence. Given this Quaker
emphasis on domesticity – as well as the role of Margaret Fell as almost
co-equal founder of the movement, with George Fox – women equaled men
in influence.
William Penn’s own background was a complex mix of spirit and worldliness.
Son of an admiral favored by the Stuarts, Penn learned law and became
a Quaker against his father’s wishes. In England he challenged Quaker persecution
by appealing to traditional English legal rights; one of his victories
helped establish juror independence. Granted Pennsylvania in payment for
a debt owed his father, Penn set out to found a “Holy Experiment” in religious
toleration, which he conceived in terms of legally protected liberty.
As profit-seeking proprietor he also retained traditional feudal legal rights
like quitrents, escheat, and tax exemption, which soon led to conflict with
the Quaker-dominated Assembly. Nevertheless, Penn’s effort to use law in
service of liberty served as one precedent for American constitutionalism.
Penn’s first “Frame of Government” was a Quaker document informed
by both liberal and republican political theory. After addressing, in typical
republican fashion, the nature of monarchy, aristocracy, and democracy,
Penn incorporated all three in an institutional framework with a governor
(Penn), an elected Council of 72 to propose law, and a rotating Assembly
to accept it – a separation of “debate” from “result” possibly taken from
Harringtonian republicanism but also consistent with decision making in
Quaker meetings, where debate was followed by a separate “sense of the
meeting.” (Later the Assembly demanded a more powerful unicameral legislature,
granted in a 1701 Charter of Liberties that included amendment
rights.) In a “Prologue” Penn laid out his theology of government, starting
with the Augustinian assumption that the unfortunate reality of evil in
the world justified legal coercion, which was required for order but was
never itself free of sin. Penn also proposed, however, the ideal of a tender
government, used not just to terrify evildoers but also to “cherish those
that do well,” and he argued for “kindness, goodness, and charity,” in cares
“more soft, and daily necessary.” Since social nurturing would have occurred
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without the Fall, presumably it escaped the taint of sin otherwise implicit
in law.
A “Great Law” followed the Frame, laying down Penn’s goal of toleration
among Christians and making notable changes in penal law. The Law’s
rights-based purpose was to preserve “Christian and Civill Liberty” against
both private injustice and government tyranny. The first law guaranteed
freedom of conscience (since God alone is “Lord of Conscience”) for all who
acknowledged a Supreme Being; all but atheists were citizens, no taxes
supported churches, and abuse of another’s religion constituted breach of
the peace. Nevertheless, only Christians could hold office and the Law
prohibited blasphemy, profanity, and breach of the Sabbath along with
the usual sex offenses, drunkenness, and “harmful” games like cards and
cockfighting. Thus the Law reflected Quaker belief that the spirit cannot be
coerced, but should be protected from worldly sin – an uneasy combination.
Penal law reform was equally Quaker. Elsewhere physical punishment
was the norm, including flogging, cropping, and the rack. Public corporal
punishment instructed the community’s conscience as well as the offender’s;
except in capital cases, a quick return to community followed and prisons
played a minor role. The Great Law, by contrast, eliminated the death
penalty for all crimes except premeditated murder; and, except for whipping
in cases of adultery, rape, or sodomy, limited punishment to fines and
imprisonment (with labor) in a house of corrections. The Christian purpose
was rehabilitation – a rekindling of the spirit through removal from
the carnal world and direct communion with God. (Repealed by England
in 1718, these reforms were reintroduced with the Revolution, becoming
the penitentiary system.) Also consistent with honest Quaker conversation
were reforms like plain language in pleadings, open publication of laws and
official salaries, and protection of Indians from liquor-induced land sales;
such reforms became well known in the colonies, while Penn’s Christian
goal of a “cherishing” government was reflected in Pennsylvania’s unusual
civil provisions for poor relief.
Religion was a powerful coordinate means of social control. At monthly
meetings Quakers considered no concern too “private” for intervention:
excessive ornamentation, prideful speech, untender childrearing, harsh
treatment of servants, indebtedness, or the need for charitable relief.
Marriage, which provided nurture for children’s tender spirits, was of particular
importance; committees carefully monitored a couple before granting
approval, and parents encouraged “in meeting” marriage by rewarding
couples with ample land.
Given that reward system, Pennsylvania became a rural landscape of
large separate family farms, linked by invisible but effective family and
religious control. Accordingly, government operated at the county, not
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township, level, and both taxation and participation in public life were
minimal. Despite Penn’s defense of law, most Quakers disliked legality.
They discouraged suits against each other, refused to take oaths (assuming
honesty in all speech), and as pacifists might refuse to apprehend criminals.
Early Assemblymen were notorious for a reluctance to pass laws and a
refusal to speak except when moved by the spirit. County courts were used
chiefly to register deeds, wills, or transactions and to recover debts; letters to
Europe praised the near absence of government. For disputes that did go to
court, over debt or fences or occasional crime, records indicate a high level
of compliance (as with uncontested debt recovery); Quaker legal reforms
apparently helped induce cooperation.
Despite its egalitarianism, a hierarchy emerged not explicitly based on
wealth and power, but incorporating both.Wealthy Quakers were the ones
most successful in keeping children in meeting, thus earning moral prestige.
Chosen for high-level meeting tasks, they were also, in practical effect,
chosen at meeting for Assembly and judicial office. Notwithstanding formal
disestablishment, meeting authority and political power became intertwined.
As the prestige of a selective Yearly Meeting in Philadelphia grew,
paralleling Philadelphia’s growth as a commercial center, a powerful, religiously
based political force emerged: the “Quaker Party” was arguably the
first major American political party.
The Quaker family model of land distribution, more than either the
(dissenting) township or (Anglican) estate model, provided extraordinary
surplus productivity and hence the foundation for Quaker trading wealth
and political dominance until the 1750s. It was also the foundation for an
increasingly privatized conception of property, at odds with Penn’s own
feudal model. By mid-century, however, Quakers were only a fourth of the
population, and Germans close to half. The intersection of German with
Quaker culture produced complex, sometimes conflicting, currents of influence.
For example, German Moravians shared the Quaker tendency toward
spiritualized universalism, but not the emphasis on protected domesticity
and distinct community. Moravians effectively embraced Indians, given the
shared spiritualist interest in trances, and they sought to unite all Pennsylvanians
in one ecumenical Community of God in the Spirit. At the other
extreme, sectarian perfectionists sought separation from the world for the
sake of strict conformity to scripture. Between those ecumenical/separatist
extremes were large numbers of Lutherans. Some brought (from the influential
Prussian Halle academy) a tradition stressing public life as service
and property as responsibility. More common, however, was a pietism that
defined property and liberty, for both church and individual, in negative
terms – as protection of the pious household, not opportunity for public
virtue, and as protection from plunder, not public obligation. Abused by
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local German rulers, these settlers sought in Pennsylvania’s promised liberty
a household and religious freedom from official demand for services,
funds, and conformity.
This negative conception of liberty was reinforced by the colony’s corrupt
land system. Escaping otherwise effective law reform, Penn’s sons
vigorously enforced escheat and quitrent privileges and refused to curtail
dishonest speculator ejectments based on false surveys and uncertain boundaries.
Specialized land-dispute tribunals earned only disdain. In reaction,
German immigrants, who were highly literate, engaged with Philadelphia’s
emerging legal culture to give liberty a legal, property-based definition,
and their emphasis on property protection helped shift Pennsylvania’s focus
from community to individual. A pietist printer, Christopher Sauer, sold a
widely read paper containing technical advice on avoiding English intestate
law (which disfavored widows), and on using English law both to protect
inheritances in Germany and to secure title to colonial land. He encouraged
naturalization, which protected families against proprietor escheat
and, with property ownership, also secured voting rights. Sauer’s periodicals
combined piety, practical household advice, and technical English law –
all representing some part of the pietist meaning of liberty.
Sauer’s experiment in legal education through journalism was carried
forward by Henry Miller, a cosmopolitan ex-Moravian who learned printing
in Europe and from Ben Franklin. He published a widely distributed
legal handbook that precisely translated English legal categories to German.
Knowledge of law, the book explained, paralleled knowledge of scripture;
both protected the pious household from injurious error. In his paper, moreover,
Miller also moved beyond negative liberty by pressing the connection
between Christian virtue and its secularized, republican parallel, with
increasing emphasis on the latter. When the Stamp Act imposed a double
tax on foreign-language papers, it reached an audience well schooled in
protecting (negative) legal rights through (positive) political action, with
the tension between those two directions unresolved. By then German culture
had effectively combined legal self-protection with political clout.
After mid-century the Quaker Party, with Franklin’s support, had sought a
royal charter to undercut proprietor power. To split the usually pro-Quaker
German vote, Thomas Penn instituted property law reforms that provided
first-purchase rights for squatters, surveyor supervision, and an impartial
board to settle disputes. Germans, accepting increased quitrents in return
for secure titles, provided the decisive votes for Penn – who now represented
legal security for property, not its opposite. When the Crown threatened
that same security, Germans rallied to the Revolution.
Church incorporation provided another legal vocabulary for emerging,
if not always consistent, conceptions of liberty. Henry Muhlenberg, an
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352 Mark McGarvie and Elizabeth Mensch
influential Halle minister, knew his church lacked sufficient legal status
to secure property or delineate internal authority. Familiar with the use
of English law to cheat unincorporated New York Lutherans, Muhlenberg
assiduously studied law and sought incorporation for his church – despite his
astute suspicion of incorporation’s lingering dependence on political influence.
He fashioned a constitution that defined spheres of pastoral and vestry
authority and stipulated free annual elections and an expanded lay right of
veto – claimed by his congregation as part of the religious liberty Penn
had guaranteed. This incorporation of the church as a predominately private
organization with considerable legally protected lay self-determination
aligned the legal protection of religious freedom with both property protection
and consent-based governance. While still incomplete, this process
of protected privatization and internal quasi-constitutionalism advanced
further in Pennsylvania than in other colonies outside Rhode Island and
paralleled an emerging political conceptualism that would surface during
the Revolution.
In Pennsylvania the Great Awakening was more complex than a simple
challenge to structured authority. Penn had provided a legal framework
for tolerance but no religious or political direction. By 1700 the result
had been a confusion of competing sectarian influences that opened the
way for mounting materialism and indifference; people mocked the rampant
diversity of religious messages, and even Quaker discipline grew lax.
During the Awakening strict separated sects died out or, like Mennonites,
survived intact, still separated. Quakers simply excluded Awakening
participants and achieved reform from within. Awakening fervor did, however,
empower Protestant denominations that had once played a muted
role in Pennsylvania’s sectarian Babel, and Pennsylvania’s material success
contributed to denominational strength as congregants gained influence
and respectability. Pennsylvania became the institutional center for the
organization of intercolonial denominationalism, but another Awakening
effect was equally important. Those who crossed sectarian lines had experienced
religion as a matter of private choice, not communitarian authority.
As distinct Protestant denominations grew in the Awakening, the goal of
universalism was transferred to secular society. Ecumenicalism became a
rationalist, philosophical ideal, typified by Franklin’s promotion of a printdominated
public citizenship – a project much advanced, not coincidentally,
by Franklin’s publication of Whitefield’s Awakening sermons.
By mid-century, in fact, a tradition of non-sectarian voluntary civic organization
had already grown, due to weak local government, religious diversity,
and the absence of parishes. Schools, for example, while usually started
by churches, were by 1750 often maintained across sectarian lines. So too
with cemeteries, fire companies, and even some libraries. County courts
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Law and Religion in Colonial America 353
assigned public overseers of poor relief, but charity was often handled semiprivately
by inhabitants in groups with indeterminant legal status. Thus,
in this most sectarian of colonies, non-sectarian cooperation had become a
norm. Franklin built on that civic tradition by promoting interdenominational
groups like the Philosophical Society and Library Company, creating,
in effect, a public secular version of the ecumenical community of believers,
a secularism with its own millennial zeal to promote progress through
reason and science. A telling symbol: to promote education Franklin skillfully
arranged transfer, to a set of secular trustees, of a valued building
once built for Whitefield’s tour and then quarreled over by Presbyterians
and Moravians; it became the academy that was later the University of
Pennsylvania.
One vocabulary for emerging patriotic secularism was, of course, law.
After mid-century, men from the best Pennsylvania families studied law
in London. In 1764 alone ten lawyers were admitted to practice, and they
used the Enlightenment vocabulary of natural rights, not just common law
writs. This vocabulary drew people together more than did theology. Sauer
had already explained natural law to German readers, and Muhlenberg,
while distrusting the atheistic Franklin, had read law texts and he supported
Franklin in the Revolution despite Lutheran reservations. In other
words, after the Great Awakening people joined denominations with new
enthusiasm, but they united across denominational lines under legal, not
biblical texts.
The Southern Colonies: Virginia
The written laws and formal administrative procedures of early Virginia
evince a superficial similarity to New England’s religious establishment.
The Anglican Church was established by charter prior to the landing of the
first settlers at Jamestown in 1607. Virginia’s early governments compelled
church attendance and the maintenance of orthodoxy. By the 1650s elected
vestries enforced moral discipline in their parishes, collected taxes to support
the church and its minister, and maintained the only birth, death, marriage,
and tax records of the time. As in New England, laws integrated religion and
civil government in providing Christian education, care for the poor, and
the preservation of social tranquility. The General Court had jurisdiction
over both ecclesiastical and civil causes of action and relied on biblically
derived concepts of morality and popular conceptions of equity and good
conscience in reaching its decisions, as well as on rules of secular law.
In this way, Virginia common law came to embody religious teachings.
Statutory laws reflected a similar orientation, as moral standards of equity
and fairness were imposed on commercial activities. Even after its second
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354 Mark McGarvie and Elizabeth Mensch
decade, when widespread cultivation of tobacco as a cash crop fragmented
Virginia society, laws perpetuated the myth of communal integrity and
social interdependence. Virginian’s law code restricted the hours people
could work, the prices that could be charged, and the number of economic
ventures that could be pursued simultaneously.
Leaders of the Virginia Company believed that settlers in the NewWorld
required religious instruction and discipline. They were also committed,
at least in part, to spreading the gospel, a commitment derived from the
practical need to fight Popery (France and Spain) in the NewWorld. Anglican
minister Robert Hunt was among the first 105 men who disembarked
at Jamestown in May of 1607. A temporary church was the first structure
erected, and Communion was held there on the third Sunday after landing.
In 1610 and 1611 ministers accompanied new settlers to the colony. Governor
Dale arrived with the latter group and immediately employed martial
law to enforce productive labor and religious practice. All men and women
were required to attend church services morning and evening and were
subject to the watchful eyes of churchwardens, magistrates, and soldiers for
moral conformity.
Virginia’s first House of Burgesses in 1619 met in the Jamestown Church
and took an oath of office swearing fealty to God. In its first session the
Burgesses passed laws requiring church attendance and punishing idleness,
gaming, and immoderate dress. This legislative body also divided the colony
into four parishes, set aside glebe lands for the support of the Anglican
Church, and prepared to support missionary efforts to the Indians.Within
the parishes elected vestrymen were responsible for enforcing moral laws,
which included not only those passed at the first session of the Burgesses but
also sexual offenses, blasphemy, and various forms of antisocial behavior,
such as lying and shrewishness. The vestrymen selected churchwardens,
prominent members of church and community, to investigate the morals of
the parish and present written findings in the county court. County judges
usually ordered public whippings for breach of moral laws.
Yet, despite the apparent priority given to religion in its early laws, Virginia
never fully embraced its mission as a religious one. The growth of
the colony after 1620 far exceeded the increase in Anglican clergy. Parishes
could be fifty miles long, making church attendance and enforcement of
religious discipline nearly impossible. Virginians frequently buried their
dead in family plots and married without clergy. Responding to instructions
from England, the General Assembly in 1664 ordered that all ceremonies
and rites “be according to the orders and canons of England, and the
Sacraments . . . performed according to the Book of Common Prayer.” The
law was seemingly forgotten before the ink was dry. The extent of religious
laxity is evident in the few attempts made by religious leaders to impose
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greater conformity to Christian teachings. In the 1680s, James Blair, an official
of the Church of England, arrived in Virginia under orders to manage
ecclesiastical affairs so as to establish uniform discipline in the colony. The
ministers with whom he met complained that the courts had ceased enforcing
moral laws and sought his aid in creating a more consistent system of
ecclesiastical courts to punish “all cursers, swearers, blasphemers, all whoremongers,
fornicators and adulterers, all drunkards, ranters and profaners of
the Lord’s day.” This proposal never reached the stage of government debate
at any level.
Subordination of religion to economic pursuits is evident in the Virginians’
relative toleration of religious dissent. While compelled to contribute
to the established church, dissenters were seldom troubled in their own
religious practices. After Massachusetts warned the Virginia burgesses of
a likely southern influx of Quakers after banishment from New England,
the Virginians welcomed the newcomers as laborers. In the 1630s Virginians
protested the creation of a haven for Catholics to the north, but their
reaction resulted more from the loss of land than from fear of Catholics.
Moreover, limits to economic activity and social amusement were rarely
enforced. In 1650 a grand jury in Lower Norfolk County, when presented
with a case of alleged Sabbath-breaking, chose to indict the entire town
rather than single out an individual for punishment.
By 1700 colonial Virginia showed few signs of following the strict religious
prescriptions of its founders. Virginia had built sixty-two Anglican
churches by 1662, and clergy reported attendance rates of about 60 percent,
indicating more attention to religion than some historians have recognized.
Nevertheless, churchgoing for many became a social function more than
an exercise in piety; true piety was a sentiment reserved for the old and
dying. Household religious practices like family prayer declined as gambling,
cockfighting, and horse racing came to characterize Southern culture.
Sponsorship of these activities by local gentry reinforced their stature at the
head of a society premised on norms of honor and prestige, not Christian
selflessness. A hierarchy thus arose very different from that which evolved
in New England. Property ownership bestowed social rank and semi-feudal
political power, with prominent gentry acting, in effect, like manor lords –
untitled, but very much responsible for the livelihood and behavior of those
who worked on their estates. In the absence of influential clergy and local
town governments, the gentry assumed economic, intellectual, and political
leadership.
The gentry also provided the Church’s financial support, not so subtly
influencing the nature of religion in the colony. The gentry preferred
secular law to scripture and their own individual authority to social responsibility.
Virginia judges obliged by emphasizing property rights and owner
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356 Mark McGarvie and Elizabeth Mensch
freedom; they worked to secure gentry rights over land and servants or
slaves, not to foster a community of reciprocal benevolence. In 1749 the
clergy approached theVirginia Assembly seeking to escape economic dependence
on the gentry. In an action indicative of religious sentiment in the
colony, the legislators passed a law providing taxpayer support of Anglican
clergy, but at an extraordinarily low salary: the bill was derisively known
to as the “Two Penny Act.”
During the Great Awakening the established Anglican Church came
under attack from Virginians who bemoaned clerical laxity in doctrine and
morals. Dissenters, mostly poor farmers, the less educated, and a small number
of merchants, flocked to hear traveling evangelical preachers. Itinerant
Presbyterian ministers such asWilliam Robinson found a ready audience for
their passionate revivals in western Virginia. Baptists, with energetic and
emotional preachers Shubel Stearns and Daniel Marshall in the vanguard,
garnered even more converts while Anglican converts to Methodism in the
1760s developed a stronghold in Brunswick County.
Even as dissenters were attacking the established clergy for its liberality,
the gentry was scolding it for failure to control the masses: the disruption
of the Great Awakening, with its emotional egalitarian message
of self-empowerment, challenged gentry control of Virginia society and
the hierarchical code of honor and prestige on which it was premised. In
response, acting through the Assembly, the gentry secured, after 1740, complete
political domination of the church, eschewing the need for bishops
and other ecclesiastical offices. Under gentry control the church preached a
message equating legitimate paternalistic authority with ethical responsibility.
This message at once questioned the legitimacy of British rule while
it augmented the local authority of the gentry who provided for the welfare
of the populations: liberty, virtue, and paternalism were interwoven.
The Anglican Church in Virginia consistently supported both slavery
and laws directed toward brutal slave control. Like frontier wars against
the Indians that provided land for white settlers, slave laws were instituted
in part to gain the solidarity of lower class whites who, in the 1670s,
had demonstrated a dangerous capacity to rebel. In 1680 the Assembly
reinforced the construction of lower class “whiteness” by forbidding slaves to
defend themselves against whites, even when bullied; in 1705 it passed a law
allowing vestries to seize any livestock claimed by slaves, to be sold for the
benefit of poor whites. Interracial marriage and sex were forbidden, except
of course for the freedom that male slave owners could in secret exercise over
slaves. Free Africans, in turn, lost many of their earlier privileges, ensuring
unremitting inequality. Many fled to escape Virginia laws.
In 1670 the legislature justified slavery in part by reference to Africans’
paganism, but the church, despite urging from London, made insignificant
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efforts to minister to the slaves. This inaction protected the legislature’s
expressed justification for slavery, while the church’s message of sacralized
hierarchy provided slave laws with religious sanction. Many slaveholders
rationalized their authority as the exercise of an obligation to care for “heathens”
of an “inferior” race who could not care for themselves. When dissenters
succeeded in converting slaves during the later eighteenth and early
nineteenth centuries, however, the church and the slaveholders reversed
position, arguing that slavery offered to African heathens the means of
salvation through Christ.
Dissenters, especially Baptists, challenged both the Anglican refusal to
convert slaves and the church’s privileged legal status in Virginia. Baptists
openly attacked the colony’s establishment as early as the 1760s, arguing
that faith cannot be legally compelled. Practical grievances also fueled the
Baptist crusade: dissenters were forced to support a church they did not
accept, and they could not secure for their own churches the legal right
to incorporate, to receive and hold bequests, or to proselytize. To gain
these rights, dissenters aligned themselves with Enlightenment reformers,
often deists, atheists, or humanistic Unitarians who were using a secular
vocabulary of rights to advocate greater protection of individual liberty –
encompassing rights of property ownership as well as freedom of conscience.
By the 1770s law provided a common vocabulary that united these two very
distinct cultures. Their anomalous alliance brought disestablishment after
the Revolution, but did not usher in the Christian nation the Baptists
envisioned.
The Southern Colonies: Maryland
Maryland is often cited as early precedent for religious toleration in America.
Yet, for many years Maryland maintained the strongest Anglican establishment
in North America; its earlier, limited religious toleration masked de
facto Catholic control. Maryland represents, in fact, not toleration, but the
bitterness of Catholic/Protestant antagonism. Indeed, to the extent that
Maryland embraced toleration, it did so only at the command of England
and not on colonial initiative.
Initially, for political and economic reasons, Maryland did not rely on
religion as a foundation for community. James I had intended to give the
colony to George Calvert, a devout Catholic, the first Lord Baltimore and
trusted servant of the King. When Calvert died, his son, Cecilius, inherited
the title, and in 1629 Charles I gave him Maryland. Immediately, representatives
of the failed Virginia Company, fearing further land devaluation,
protested this grant to a Catholic as a violation of English law and an invitation
to Spanish or French intervention. Protests delayed settlement until
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358 Mark McGarvie and Elizabeth Mensch
1633 and shaped the religious character of the colony. The new Lord Baltimore,
knowing his estate was precarious, tried to minimize the influence
of religion altogether. He insisted Catholics “preserve unity and peace” by
refraining from public discussion or practice of religion, a policy that precluded
not only Catholic establishment, but even construction of Catholic
churches.
Baltimore exercised extraordinary proprietary authority. Owning all
land, he was also sole source of legal authority. He appointed the governor, a
council of advisors, magistrates, and judiciary; his authority to promulgate
laws was limited only by the requirement that no law be “repugnant to
English law” or violate English rights. In recognition of those rights Baltimore
created an Assembly that at first only reviewed legislation proposed
by the Lord Proprietor, but soon began initiating bills and later established
two courts.
Baltimore managed Maryland as a profit-generating enterprise, with
income from taxes, fines, and fees. It appealed to younger sons of the English
Catholic gentry who wanted land and influence without compromise of
belief, a combination impossible in England. Calvert gave the largest tracts
and most powerful political positions to Catholics, but to attract laborers
he encouraged religious diversity, leaving Catholics a distinct minority.
Tension between Catholic rulers and Protestant settlers arose almost
immediately. Many Jesuits migrated to Maryland in the 1630s, settlin,g
without legal title. Committed to reclaiming Catholic universalism, they
traveled the colony, converting Indians and threatening Protestant laborers
with eternal damnation. Catholic landowner toleration of Jesuits prompted
claims of persecution by Protestants, who appealed to Virginia to rescue
them, militarily if necessary, from Jesuit harassment. Maryland’s governor,
Lord Baltimore’s brother, acted quickly to suppress unrest, convicting one
of the proselytizers of “offensive and indiscreet speech” for warning Protestants
of damnation.
Legal action to temper Jesuit enthusiasm pacified workers but also
attracted dissenters to the colony. Religious diversity, however, did not
mean toleration: each religious enclave exercised its own rules regarding
conformity with a sectarian defensiveness that stemmed from the precarious
state of any religion in Maryland. Only one Anglican minister preached
in the colony before the late 1650s, and most Protestants could not afford
to support a minister, build a church, or maintain a school. For three generations
most people did not attend a single formal church service, and
responsibility for public services vested instead in the gentry. As a result,
prior to 1700 Maryland maintained practically no poor relief, schooling, or
records and lacked the usual signs of community – churches, town squares,
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Law and Religion in Colonial America 359
or schoolhouses – that foster public life. Nevertheless, every town had stocks,
pillory, and a whipping post, while vacant country homes served as jails.
Laws in Maryland were similar to those in Massachusetts, but enforcement
was not. Drunkenness was a crime in both colonies, but Maryland only
punished one who “abuse(s) himself by frequent drunkenness,” and required
multiple witnesses to repeated incidents. Many penal statutes addressed sex
offenses, but most actual prosecution resulted from unusual circumstances –
forced miscarriages or infanticides, a husband accusing wife and lover, or a
female servant charging a master for child support.
Conflict in England profoundly affected Maryland. During the English
CivilWar nervous Maryland Catholics acted to solidify their position with a
1649 “Act concerning Religion.” Known for providing religious toleration,
the Act in fact was explicitly designed to protect Catholics from the “dangerous
consequence[s]” they feared. Specifically incorporating protection of
Catholicism into criminal law, the Act prescribed execution for any who
openly denied the Trinity; it also ordered that the Virgin and Apostles be
spoken of with reverence and prohibited slanderous religious designations,
with particular mention of the term “papist.”
By 1651, however, the Protestant majority controlled the Assembly,
which abrogated the Toleration Act of 1649 and also passed laws reflecting
Puritan influence, with strict penalties for drunkenness, profanity, swearing
and cursing, adultery, fornication, blasphemy, and violating the Sabbath.
Only the governor’s veto prevented a tax-supported Protestant establishment.
In 1654, angered by persistent interference from Calvert, the Assembly
launched its own civil war by repudiating the Lord Proprietor’s authority
to govern. The governor raised an army to defend his proprietary rights, but
was defeated in 1655. Now unencumbered, the Assembly made Catholicism
a crime. Radical Puritans plundered homes of Catholics and forced
them and their priests into exile, executing at least four who resisted.
Thus self-government in Maryland resulted in violent religious persecution,
not toleration. Refusing defeat, Baltimore worked through a hostile
Puritan Parliament to reestablish dialogue with the Maryland Assembly: he
regained control but on radically modified charter terms, which included
installation of a Protestant governor. Baltimore retained his income, but
his role in governance was never the same.
Charles Calvert succeeded his father as Lord Baltimore in 1676 and
took advantage of the Restoration in England by trying to exclude Protestants
from Maryland government. In response, the Assembly complained to
London that Baltimore overused his veto, filled powerful offices with
Catholics, and denied Protestants their rights of self-government. With
continuing Puritanical zeal, the Assembly also prohibited Sabbath labor
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360 Mark McGarvie and Elizabeth Mensch
and required church attendance or private worship. While not explicitly
anti-Catholic, the legislation was so perceived.
In the political skirmishes that followed, the Lords of Trade generally
favored the Protestants, especially after a report from an Anglican minister,
John Yeo, was forwarded by way of the Archbishop of Canterbury. Yeo
described Maryland’s lack of churches, its general irreligion, and its “notorious
vices . . . soe that it is become a Sodom of uncleanness and a pest house of
iniquity.” Baltimore, however, stubbornly resisted pressure from the Lords
to stop favoring “those of the Papish Religion to the discouragement of his
Majesties’ Protestant subjects.”
As in New York, England’s Glorious Revolution of 1688 brought revolution
to Maryland. An anti-Baltimore assemblyman, John Goode (variously
spelled “Coode”), a one-time Anglican minister, planter, and businessman,
recruited a small army with support from Protestant lawyers and merchants
who had recently fled the English Restoration. Goode’s band marched
toward the capital, and the Council and Governor surrendered without
resisting. The rebels, called the “Associators,” were not anarchists. They
claimed only to object to a government that rested on a charter rendered
invalid by Parliamentary supremacy, and that now refused to recognize the
new Protestant monarchs as the lawful Crown. Immediately congratulating
the Crown, the Associators implored them to stabilize a Protestant Maryland
government. Only near the end of 1689 did the Protestants, claiming
fear of violence, also close Catholic churches and imprison priests; in addition,
Associators undertook investigation of the Baltimore administration,
turning up evidence of misused funds and abuse of power, which they
reported to England. In 1690 Whitehall charged Baltimore with fifty-two
Articles of mismanagement; the Privy Council recommended suspension
of his charter, with retention of only a small portion of the colony’s income.
A new governor, Copley, arrived in 1692, and the Lords of Trade selected a
Council containing many Associators.
English diplomacy, however, imposed limits on Protestant triumph in
Maryland. Seeking good relations with Spain, his military ally against
France, KingWilliam promised Spain that Catholics would be free to worship
both in England and the colonies. After the Associators’ attacks on
Catholics in 1689, Spain pressed William to act. William extended to the
colonies the limited religious freedom guaranteed in the English Act of
Toleration (1689) and ordered Governor Copley to restore liberty of conscience
to Catholics. In response the Assembly passed a bill establishing
Anglicanism; Copley refused to implement it.
Toleration during the period of royal control did not amount to religious
freedom. Non-Christians had few rights; they could not bestow property
by will, vote, or hold office. The Governor and Assembly renewed laws
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against Sabbath-breaking, sexual misconduct, alcohol consumption, and
various forms of gaming and entertainment, all with the expressed purpose
of ensuring Christian morality. Catholics were an isolated minority, shorn
of political power. They could practice their faith in public, but were not
granted full rights of property ownership or political participation until
the Revolution. Many, feeling betrayed, supported a return of Baltimore
and Stuart restoration. Jesuits aggressively asserted proselytizing rights
in 1697, resulting in then-Governor Nicholson’s private condemnation of
Catholicism as an “idolatrous religion,” but Nicholson’s hands were tied by
royal policy and he incurred Protestant wrath by tolerating Catholics.
By the turn of the century Catholic plantation owners, mostly Calvert
friends or relatives, had witnessed the decay of Maryland’s manorial system.
Local government replaced manor courts in administering justice
and providing social needs. The colony remained religiously and ethnically
diverse, with Quaker and Catholic “undesirables” from other colonies,
along with immigrants from Scotland and slaves from Africa. The 1692
“Act of [Anglican] Establishment” had never been implemented, despite
growing Anglican influence; three times the Lords of Trade underWilliam
rejected it. Then, when Queen Anne succeeded KingWilliam in 1702, she
confirmed the 1692 Act and revoked orders securing freedom of religion
for Catholics. As in other colonies, Queen Anne’s reign represented a period
of intensified Anglicanism, embraced by Maryland’s Assembly because of
its implicit anti-Catholicism. When Anne’s royal governor, John Seymour,
arrived, his first action was to arrest and threaten Catholic proselytizers; he
then urged adoption of criminal laws to address the “audacious misbehavior
of Romish Clergy,” resulting in prohibition of Catholic worship in public
and severe penalties for Catholic proselytizing.
Legally the Anglican establishment was relatively weak. It permitted
practice of any Protestant religion and did not require attendance at Anglican
services. The Assembly did, however, support establishment by organizing
vestries as quasi-governmental organizations in twenty-two of the thirty
parishes and provided new church buildings for most of those parishes.
Elected vestrymen collected taxes to pay for churches, poor rates, support
of a minister, and, often, a church school. A 1715 law allowed vestrymen to
remove children from a Catholic mother if their Protestant father died, so
they “be Securely Educated in the protestant religion.” For funds to pay for
the French and IndianWar, the Assembly taxed Catholics double for their
land and allowed lower tax rates on trade among Protestants.
Only after the fourth Lord Baltimore converted to Protestantism and successfully
petitioned for return of his family’s land did Anglicanism flourish
as the chosen religion of the proprietary family. For the first time, social status
attached to participation in the Anglican Church; legal establishment,
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362 Mark McGarvie and Elizabeth Mensch
formally weak, was coupled with real political clout. Anglican establishment,
however, did not prefigure the colony’s future. Western Maryland
grew dramatically from 1720 to 1776, but Anglican attempts to benefit
from establishment there failed. Westerners were largely recent immigrants
– Germans, French Huguenots, and Scots-Irish – who were disinclined
to adopt Anglicanism. Some brought solid commitments to home
churches, such as Dutch Reformed, Moravian, Mennonite, or Lutheran.
Others followed Great Awakening preaching, which, as in Virginia,
appealed openly to lower classes and slaves. Participants usually became
Baptists or Methodists, and local churches, with their growing strength,
served as de facto established churches throughout the frontier: they collected
money for the poor, funded education and medical care, delivered
mail, and kept records. One church task was to construct schools and hire
teachers; Bibles served as texts until the decline in Christian education in
the 1770s. In 1750, the Lutheran Ministerium also founded an orphanage
for children of deceased German immigrants. Government performed none
of these functions on the frontier, and even along the seaboard dissenting
churches assumed many such tasks. Disturbed by dissenters’ success, the
Anglican ministry sent missionaries to the west, but they chiefly encountered
hostility to Anglicanism’s official establishment.
Limited toleration existed throughout most of the colonial era, but it
was frequently imposed by a distant government primarily concerned with
political and economic goals. Even in its more liberal incarnation, religious
toleration never became the freedom to believe and to practice any or no
religion without the loss of political, economic, or civil privileges. On
the eve of Revolution, Maryland stood as an Anglican establishment that
relied on churches to perform many public functions, relied on Christian
teachings for many of its laws, and persecuted non-Christians and non-
Anglican Christians to varying degrees. Maryland, in this way at least, was
a typical British-American colony.
CONCLUSION
Four main themes emerge from these accounts. The first is the theme of
Christian community and its erosion. Yearning to regain lost community
is, of course, a recurrent American motif. The historian is challenged to separate
fact from myth; complete separation may be impossible. Yet, clearly
in colonial America religion was integrated with law as a means of building
communities rooted in common Christian values, and many colonists
lamented when their contemporary reality fell short of an idealized past or
failed to prefigure the millennial future.
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Law and Religion in Colonial America 363
A second theme is the shift in influence from public religious establishment
to a “private” denominationalism with complex links to the public
order. Denominational linkages to the public realm were achieved partly
through legal forms that would soon be located, like religion itself, within
a sphere of private ordering – property, corporation, and charitable bequest.
As denominationalism became the dominant model for American religious
life it employed and reinforced those legal categories, thereby shaping reconfigurations
that would later transform American conceptions of private
right and public authority. For example, tasks considered both public and
religious under colonial establishment – charity, education, promotion of
morality – would be redistributed across a public/private divide, posing
dilemmas with which we still wrestle.
The third theme is the one of difference. American colonies were overwhelmingly
Protestant, but Protestants fiercely disputed the role of political
authority in relation to Christian freedom – in other words, the relation
between law and grace or between the City on Earth and the City of God.
Those dilemmas deep at the core of Christian theology were illustrated
in the colonies, as theological differences shaped the legal structuring of
communities and became inseparable from social and economic differences.
It might fairly be said that American Protestants did not solve the problem
of law, but at least many took it seriously, as a question of theological
legitimacy.
Finally, of course, is the theme of colonization. The meaning of “Christian
community” in the colonies was inextricably linked to the constant
presence of those who had been conquered. In confronting the colonized,
white Christians reenacted yet another Augustinian paradox as they found
themselves defining communitarian inclusion by its flip side – by exclusion
and by the coercion of enforced boundaries. Without boundaries, the
pious community seemed to dissolve into the corruptions of the world,
and thence into pagan darkness. That radical dissolution was embraced by
RogerWilliams when he took up residence among the Indians and declared
Massachusetts to be the real pagan wilderness, since coerced exclusions had
replaced true Christian love. For most colonists, however, community came
to be defined in part by an “other” that could be both racially identified and
variously described as heathen or Satanic. That “otherness” united whites
and reminded them of the vigilance needed to build Christian community.
As a result, “community” increasingly rested on foundations of bloody
conquest and enslavement. For example, during the attacks of the 1670s
Puritans believed God had unleashed Indians as a punishing force from
Satan, in part because, in the wilderness, Massachusetts had itself become
too heathen and was no longer a godly community. Puritans slaughtered
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364 Mark McGarvie and Elizabeth Mensch
Indians to prove God’s power and their own worth and sold Indian children
(“young Serpents”) as slaves.
These inclusion/exclusion decisions, defining the meaning of Christian
community, set in motion ironic forces and cross-currents that played themselves
out for decades in post-Revolutionary Era America. For example, the
all-enveloping, anti-Puritan Anglican church in the South embraced both
unregenerate masses and privileged elites, the former frustrating New Englanders’
conceptions of a true church, the latter asserting a status New Englanders
found unchristian. Yet, Southern Anglicans rejected African slaves
the New Englanders might well have welcomed. By contrast, dissidents
during the Great Awakening excluded from their definition of Christian
community New England latitudinarianism, commercial wealth, and the
values of elite Southern culture, which they labeled immoral, while including
slaves and the lower classes. Ensuing struggles to define the “true”
meaning of community in America would last until the Civil War, and
beyond.
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11
the transformation of law and economy
in early america
bruce h. mann
Scholarship on law and the economy often has a chicken-and-egg quality.
Is law a tool wielded instrumentally to effect specific economic ends, or
does it emerge functionally from particular economic needs? Most such
writing addresses the nineteenth century, but it serves as a caution for
earlier centuries, despite, or perhaps because of, the comparative paucity
of work on law and the economy in the colonial period. What makes the
caution necessary is that, notwithstanding a certain heuristic value, the
dichotomy misleads and oversimplifies. It could hardly be otherwise, given
the pervasiveness in society of both law and economy. Things legal and
things economic are everywhere any moderately perceptive historian looks,
by their very profusion interacting in complex ways. Moreover, one cannot
talk of law and economy in the seventeenth and eighteenth centuries as
though each was a single, unitary construct. There were many laws – or,
perhaps more helpfully, many legalities – and many economies, as diverse
and diversified as we now know British North America itself to have been.
The task at hand is to sort out the myriad strands and see if they can be
woven into a coherent story or set of stories about law and the economy in
the seventeenth and eighteenth centuries.
The only clear generalization one can offer is that law and economy at
the close of the eighteenth century looked very different than they did at
the beginning of the seventeenth. This is not the same as saying that the
relationship between them changed over that span, although it did; but
how it changed is less clear than the fact that law and economy themselves
changed. To indulge in the sort of crude oversimplification just criticized,
in the seventeenth century the relationship between law and the economy
played out on a level one might loosely call public, while in the eighteenth
century it was more clearly private.
The legal activities of greatest consequence for the economy in the seventeenth
century were the establishment of legal institutions and attempts at
economic regulation. The two were related. Many of the regulatory measures
365
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366 Bruce H. Mann
emanated from legal institutions that were called courts, but that blended
judicial and administrative functions. Defined broadly, economic regulation
included wage and price controls, fencing regulations, land distribution
rules, land-title recordation, regulation of labor relationships, and the
like. By way of contrast, private law activity – matters of debt, contract,
and property – were generally subsidiary to public rules. Property law was
the most “developed” of the private law areas, in the sense of being more
articulated and formalized. Debt and contract were, by comparison, almost
rudimentary. This difference reflected the centrality of land and the highly
localized, relatively undeveloped nature of the economy. The relationship
between law and economy did not have a transactional basis in the sense
that law shaped or influenced how economic actors dealt with one another.
Rather, it rested on regulation and on the growing protection of private
rights in land.
Changes toward the end of the seventeenth century began to affect the
relationship between law and economy. Local court functions became more
differentiated, with the result that courts focused more clearly on disputes
between individuals. Local economies began to turn outward, as the production
and accumulation of things to sell and the spread of markets in
which to sell them promoted the expansion of the coasting trade and the
development of a trans-Atlantic trade. These economic changes shifted the
focus of law to transactions between individual economic actors. Issues of
debt and contract came to predominate.
Part of the eighteenth-century story is how the transformation of formerly
local economies made credit and failure the dominant legal issues.
Economic development required credit, which in varying ways was supplied
by paper money, written credit instruments, and tobacco warehouse receipts.
The expansion of credit necessarily raised the question of how to assure its
repayment, which law tried to address through mortgages, sureties, tighter
procedural rules, and other such devices. Under the time-honored principle
of what-goes-up-must-come-down, the expansion of credit and of the
economic activity that ran on it meant that law also had to learn how to
handle economic failure. The private-law focus of the relationship between
law and economy made this more difficult. The notion of credit as something
created in bilateral contracts enforceable through similarly bilateral
litigation complicated insolvency and bankruptcy, both of which required
rising above the transactional origin of each debt to achieve some degree of
cooperation among creditors. Long-standing beliefs that insolvency represented
moral failure rather than economic risk and that debtors thus bore a
moral obligation to repay their debts in full further complicated the ability
of law to deal with failure. Moreover, the large-scale speculation schemes
that were the primary investment vehicles of the 1780s and 1790s quickly
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The Transformation of Law and Economy in Early America 367
outstripped the ability of the legal system to deal with them, both in terms
of how they mustered capital and of how to sort through the consequences
of their collapse – a dilemma that foreshadowed the legal struggle to define
and contain the great economic and political phenomenon of the nineteenth
century, the business corporation.
In the broadest and most summary of outlines, that was the shape of
the changing relationship between law and economy in the seventeenth
and eighteenth centuries. Giving it content and coherence, not to mention
credibility, requires rather more explanation. Any explanation can, of course,
only be partial. The literatures of law and of economy for the era rarely
overlap. There is more for New England, less for the South, and little for
the colonies in between. But there is enough to hazard a beginning.
I. LAND AND LAW IN THE EARLY ECONOMIES
While most of the British North American colonies shared roughly similar
dates of settlement, they did not necessarily share similar laws or economies.
Eventually the former would converge, but not the latter. The Southern and
Caribbean colonies began as explicitly commercial ventures with different
postures toward law than was the case in the northeastern colonies, where
economic activity was more a means than an end. For example, whatever
profit-making ambitions the original investors in the Plymouth or the
Massachusetts Bay companies might have had quickly evaporated in the
face of land and resources that were suited only to household production,
a limitation that dovetailed nicely with the communal aspirations of the
settlers themselves. Not all who migrated to the New England colonies
in the first decades of settlement were Puritans or Pilgrims or families or
congregations, but enough were that the laws and economies they established
were theirs. Others had to conform or live on the margins. Similarly,
the Quakers, Presbyterians, and German pietists who settled Pennsylvania
and New Jersey later in the seventeenth century found land that was much
better suited to commercial agriculture than any in New England, but like
the Puritans they arrived with a religiously shaped vision of society that
placed the family, and consequently the household economy, at the center.
This is not to say that trade or the marketplace were anathema – far from
it. But they were contested spheres that some people pursued and others
attempted to contain – a tension that often found legal expression.
Apart from rapidly depleted stocks of beaver pelts, the natural resources
of New England could be counted most generously as trees and fish, neither
of which promised great riches. The soil tended to be rocky and uneven,
cultivable only in relatively small patches with little commercial potential,
though reasonably well suited to small-scale farming. Rather than distribute
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368 Bruce H. Mann
land under the headright system common in the southern colonies, the New
England colonies promoted concentrated settlement by granting townsized
tracts to quasi-corporate bodies of proprietors, which in turn allocated
land to male heads of households in combinations that included house lots
clustered in town centers, more dispersed farm lots, and pasturage rights
in the town common lands. The allotments varied in size and choiceness
according to social status, family size, and wealth. In Massachusetts, the
General Court underscored the purpose of the grants in 1634 by declaring
that it would seize the land of any grantee who did not build on or otherwise
improve it within three years and re-grant it to someone who would.
Initially, the proprietorship was coterminous with the town, an identity
reinforced in some towns by town covenants that ranged from hortatory
professions of godly fraternity to blueprints for public participation, all
phrased in contractual language and signed by the landowning inhabitants.
In time, the arrival of new settlers who could purchase land but not shares
in the proprietorship and the coming of age of sons of proprietors who
similarly were excluded from the benefits of proprietorship – the most
valuable of which was the right to share in future land distributions – caused
significant problems for town governance and citizenship, which need not
concern us. What matters is that the prevailing pattern of land distribution
created a landscape of small farms in close proximity to one another, in
sharp contrast to the dispersed plantations that came to characterize the
Chesapeake. There were, of course, always outliers – fisherman, trappers,
and others who preferred to live beyond the reach of godly neighbors –
but their preference for the margins also made them marginal to the main
development of law and economy.
If the land itself and the manner in which it was distributed determined
that the economy would be shaped primarily by household production, the
legal form in which land was distributed influenced how law touched on the
economy. Throughout New England, land grants to individuals were almost
exclusively in free and common socage, which meant that grantees owned
the land without owing any continuing personal or financial obligations
to anyone else, whether as rents or personal services – the beginning, in
effect, of the American dream. Tenancy existed, most notably in William
and John Pynchon’s Springfield in western Massachusetts. But it was not
the norm. Instead, people typically held land in a legal form that not only
allowed them to farm it but also to treat it as an asset and a commodity, a
part of their wealth that could be bought, sold, mortgaged, and inherited.
This helps explain the early appearance of land recordation statutes, first in
Plymouth in 1636, then in Massachusetts four years later.
Recording statutes protect landowners and facilitate land transactions
by creating public evidence of title on which prospective purchasers and
creditors can rely. In their modern form, they do this by designating an
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The Transformation of Law and Economy in Early America 369
office to which purchasers and creditors can present their deeds from the
owner/seller or owner/debtor to be copied into the public records, where they
constitute legal notice of their interests and establish their legal priority over
anyone who later asserts a competing interest in the land. Recording statutes
are notice statutes. They do not require people to record their deeds or other
instruments of title for the documents to be valid as between the parties to
them – as between, say, the seller and buyer or the mortgagor and mortgagee.
Rather, they require buyers and creditors to record their instruments if
they want to establish their priority over third-party claimants. Once an
instrument is recorded, anyone contemplating a transaction involving the
same land is deemed to have notice of the prior claims and so will not prevail
over them. Thus, buyers who record their deeds from their sellers need not
worry if someone later claims to have an earlier but unrecorded deed to
the same land. And creditors thinking of lending money to a landowner
on the security of a mortgage can determine if other creditors have already
recorded mortgages in the same land to secure their own loans to the owner
and who therefore would have first claim to the mortgaged property in the
event of default.
The first recording statutes were much less detailed than their modern
equivalents. They did not, for example, require that the full text of the
deed be recorded and so were of little help in boundary disputes. And they
could be of little practical comfort in frontier areas where distance to the
courthouse often discouraged recording altogether. But they nonetheless
established the important legal principle that priority of record guaranteed
priority of title, thereby helping redefine the economic value of land.
Whereas the value of land had traditionally been measured in straightforward
terms by what could be extracted from it, either in rent or what
it could produce, a proper land title system broadened the understanding
of economic value to include land as a commodity that could be bought
and sold, and land as an asset that could be tapped to secure credit. It was
these new understandings of economic value that in the eighteenth century
helped drive land speculation and the efforts of squatters to secure paper
recognition of their claims. This redefinition, however, lay in the future.
II. REGULATING THE MARKETPLACE
At the very beginning of settlement in New England, when land mattered
most for the families it could sustain, the primary impact of law on the
economy lay in its attempts to regulate the economy by restraining what
would later be apostrophized as market forces. In early modern England,
a regulated economy was an important element of a moral economy that
preserved order and stability within the traditional social hierarchy. What
later writers referred to as “the restlessness of the market place” was thought
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370 Bruce H. Mann
inimical to a well-ordered society. In Massachusetts in the 1630s, regulation
meant, most saliently, the enactment of wage and price controls. The former
were a response to the scarcity of non-family labor, the latter to a combination
of remembered English regulations and theological concerns about
just price. Both attempted to deal with the strains placed on the economy
by the Great Migration, which propelled the European population of New
England from a few hundred in 1630 to twenty thousand a mere decade
later.
Later generations made much of the contrast between free labor in the
North and bound labor in the South, as though the difference stemmed from
innate moral differences. It is true that bound labor, whether as indentured
servants or as slaves, never reached the scale in New England that it did in
the plantation colonies, but that was not because of moral scruple. Bound
labor was too common in the Northern colonies to believe it would not have
spread had economic conditions supported it. Although not on a par with the
voracious demand for labor of the plantation economies, New England had
its own labor needs, but little wherewithal to meet them. Even small farms
were labor intensive, but they did not generate sufficient surplus to purchase
bound labor, which required a capital investment that was beyond the means
of most landowners. Farmers relied instead on family labor, which could
include less fortunate relatives, dependent sons and daughters, or, for certain
tasks, apprentices. When these sources fell short, landowners turned to wage
labor, whether for unskilled field work or for skilled labor such as carpentry.
There the market prevailed. Whether skilled or unskilled, labor was scarce
and demand was high, thereby raising the wages workers could command.
It was in part to counter this market response, which observers thought
of as greed, that the legislature enacted caps on daily wage rates. Other
corners of New England addressed the problem differently: the Pynchons
in the Connecticut valley used immigrant servants and dependent tenants
in what often resembled debt peonage; large-scale sheep and dairy farmers
on Narragansett Bay used Indian and later African slaves. But they were
just that, corners.
Price controls were known in England, primarily in the form of periodic
efforts to regulate the price of bread, but in Massachusetts their brief imposition
owed more to the theological idea of just price – a price determined
not solely by the market but also by considerations of intrinsic value and
godly restraint. Just price notwithstanding, price controls often gestured
toward the market. For example, prices of foodstuffs were more likely to
be regulated in Boston than in the more self-sufficient rural areas that supplied
Boston. Prices of perishable items tended not to be regulated, their
perishability giving buyers leverage they did not have in more durable
items.
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The Transformation of Law and Economy in Early America 371
In truth, wage and price controls were more hortatory than binding.
Stephen Innes has calculated that peacetime wage and price controls were
in effect in Massachusetts for only forty-three months between 1630 and
1684, primarily in the first decade of settlement. Even when nominally in
force, controls could be toothless. The General Court declared in September
1634 that employers who violated the mandated wage limit would not
have to pay the fine prescribed by statute. By 1636, the General Court
had largely withdrawn from centralized wage regulation and directed the
towns to set and enforce wages. Prosecutions at both levels were few and far
between. This ambivalence toward regulation arose from different sources.
One was the inability of the legislature to abrogate the laws of supply
and demand, which although not understood or even named nonetheless
inhibited compliance. Another was that wage limits sometimes had noneconomic
goals. For example, when the General Court in 1633 reimposed
wage and price limits it had previously rescinded, it did so in response to
complaints that laborers were using their unregulated, and consequently
higher, wages to get drunk and buy “superfluities.” Wage limits for such
class purposes went hand in hand with sumptuary laws, which just as
ineffectually attempted to limit the consumer impulse for lace and other
fineries to people whose social status merited them.
The futility of the controls illustrated the limits of law. It did not, however,
imply an unrestrained marketplace. If the market could not be tamed
by law, perhaps it would bend to the influence of the traditional moral economy
in which profit had to be tempered by the good of the community. The
legislature periodically tried to establish normative restraints by exhorting
the population to observe suggested limits. Individual towns encouraged
voluntary compliance. The 1639 prosecution and conviction of the wealthiest
and arguably greediest merchant in Boston, the reviled Robert Keayne,
for price gouging rested more on general principle than on statute and was
seconded by the formal censure of his church. Law still had a place, even if
for exemplary purposes.
Although New England legislatures had to concede that they could not
restrain market values by fiat, there were other legal mechanisms for regulating
the economy. These other mechanisms could facilitate market exchanges
or limit their consequences. Among the former were regulatory measures
to assure the quality of goods traded and the fairness of the people trading
them. Chief among the latter were usury laws, which restricted the
cost of credit by criminalizing the charging of interest above the statutory
maximum.
In England, policing quality in the marketplace had generally been the
responsibility of craft guilds. But guilds never took root in the American
colonies. For all of four months in 1635, Massachusetts created a merchants
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372 Bruce H. Mann
guild of sorts by giving nine men the exclusive right to board arriving
ships, examine whatever goods they had for sale, agree on the prices, and
purchase the goods for resale to the inhabitants at a 5 percent mark-up.
The magistrates quickly conceded the unenforceability of such a monopoly,
which few but the nine appointees favored, and replaced it with a similarly
short-lived system that applied only to imported foodstuffs, in which the
colony government had the right of first purchase and licensed wholesale
merchants that could buy whatever remained. Massachusetts experimented
again in 1648 by granting the coopers of Boston and Charlestown guild
privileges to enforce standards of packing fish, pork, and beer for export,
complete with the customary English guild privileges of regulating entry
into the trade and judicial authority over their members. The General
Court declined to renew the coopers’ charter four years later and assumed
responsibility for regulating the quality of export goods, a responsibility
it had never relinquished over other goods or at most had delegated to the
towns. The colony and individual towns variously appointed fish cullers
to grade the quality of the catch, leather searchers to inspect the hides and
skins supplied to tanners and shoemakers, flour inspectors to test the quality
of bread, and, most pervasively, inspectors of weights and measures so that
purchasers would not have to rely solely on the integrity of vendors for
the accuracy of their measurements. In short, public officials oversaw most
aspects of commercial activity.
Usury laws, in which the colonies followed centuries of Western tradition,
were just one consequence of two related facts that shaped much of
the relationship between law and economy in early America – namely, that
merchants conducted business on promises and that they controlled the
available supply of money. The former is fundamental. Unless commerce
consists of simultaneous exchanges of goods or services and the payment
for them – that is, unless buyers immediately pay their sellers in cash or
in kind – people must conduct business on promises, whether promises to
pay, promises to deliver, or promises to perform. The promises create debts
and transform the people who make and receive them into debtors and
creditors. The full ramifications of this belong to the eighteenth century,
but the immediate impact in the seventeenth century derived from the facts
that all debts carried interest in one form or another and that they required
formal enforcement mechanisms in the event of non-payment.
A perennial complaint throughout the colonial period of everyone who
ever bought or sold anything – rich and poor alike, debtors and creditors
all – was the scarcity of money. The colonial economies never had enough
specie and rarely any paper currency to serve as a circulating medium of
exchange. In their absence, people paid for goods and services in agricultural
produce, or “commodity money.” Unless one assumes a landscape of
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The Transformation of Law and Economy in Early America 373
people routinely pushing wheelbarrow-loads of produce the way modern
Americans carry wallets, commodity money necessarily turned all transactions
into credit transactions in which people delivered goods or performed
services and were paid later. Until the beginning of the eighteenth century,
the predominant mode of memorializing these transactions in the northeastern
colonies, with the possible exception of Dutch New Amsterdam,
was by book accounts, which enabled people to purchase goods or services
on credit with payment postponed until they could harvest their crops or
otherwise acquire commodity money items.
Books were running accounts of the dealings between creditors and their
debtors. Each entry chronicled a transaction – the purchase of goods, the
performance of labor services, occasional payments on account. In legal
terms, the defining features of book accounts were that they did not contain
an explicit promise by the debtor to pay for the goods or services received
and did not stipulate a time for repayment. Instead, books recorded debts
for which the law implied a promise to pay, albeit at a time uncertain. That
the promise to pay was implied rather than express did not compromise the
popularity of book accounts, but it did shape their salient features. Books
were only presumptive, not conclusive, evidence of the debts they recorded.
That is, when sued, debtors were free to counter their creditors’ claims with
a wide range of controverting evidence, allowing juries to sort out who owed
what to whom. Book accounts thus had too much intrinsic uncertainty to
permit the calculation of interest, even though creditors who sued typically
prevailed. On the other hand, vendors compensated for their inability to
levy interest by charging higher prices to credit customers than they did to
cash customers.
The first government intervention in the debtor-creditor relationship was
prompted by the same scarcity of money that underlay routine dealings on
book. In October 1631, a scant sixteen months after arriving in New England,
the Massachusetts magistrates made corn legal tender at the market
rate for all debts except those in which the parties had expressly contracted
for payment in money or beaver pelts, the latter an acknowledgment of the
growing importance of the fur trade. Six years later the General Court fixed
the price at which corn would be accepted in payment of any future debts,
although it subsequently compensated at least some creditors who suffered
losses when the market price of corn fell below the statutory tender price.
In 1640, the sudden prospect of a Puritan future in England stemmed the
Great Migration. The economy it had supported spiraled into depression.
The price of corn, which had been driven upward by demand as long as
immigration flowed, plummeted. As a result, corn lost most of its value as
money, throwing credit into disarray. During the years of booming migration,
settlers had supplied themselves on credit, often secured by mortgages
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374 Bruce H. Mann
on their lands, crops, or cattle. When crop prices fell, they lost the ability
to repay their creditors, who then seized the mortgaged land or crops,
thereby truly impoverishing their debtors. Unsecured creditors could wreak
the same damage by winning court judgments against their debtors and
levying execution on the debtor’s property. As JohnWinthrop wrote in his
journal, “men could not pay their debts, for no money nor beaver were to
be had.”1 In its second intervention in the debtor-creditor relationship, the
General Court moved quickly in October 1640 to extend at least some protection
to debtors by requiring that creditors accept a debtor’s property at
values determined by three “understanding and indifferent men” and that
they exhaust the debtor’s movable property before seizing his land, thereby
giving at least temporary protection to the ultimate source of the debtor’s
livelihood. For debts contracted thenceforward, the Court stipulated that
creditors could not compel payment in money, but rather had to accept
commodities at such rates as the Court determined or, if the Court failed
to act, by the appraisal of “indifferent men.” Connecticut enacted a similar
law four months later.
By May 1646 Massachusetts legislators decided that the worst of the crisis
had passed and repealed the law that had permitted contracts for money to
be paid in kind. They had already eased credit by relaxing the restrictions
on usury, and to facilitate international trade they had lifted the ceiling on
interest rates for bills of exchange. In 1650 they repealed another law from
the same era that had allowed debtors to stymie the attachment process
simply by failing to appear in court. Nevertheless, while in force, the laws
shielding debtors were a very Puritan gesture of the Christian charity that
leaders such as Winthrop felt creditors should have shown on their own.
On a broader scale, depression forced a shift in government efforts
to regulate the economy. Wage and price controls were largely abandoned.
Massachusetts overcame its early antipathy to monopoly rights and
began offering franchise monopolies for limited terms of years to budding
entrepreneurs to encourage economic development. These included
straightforward market monopolies, such as guarantees of exclusive markets
to fur traders who agreed to pioneer routes to new sources of furs;
market monopolies combined with quasi-patent protection, such as grants
of exclusive rights to sell iron conditioned on building ironworks that
used advanced technologies; and outright protection of intellectual property
rights in the form of patents to inventors of manufacturing machines,
who could then charge for their use. The colony also granted tax abatements
and direct subsidies to spur growth in commercial endeavors as varied as
1 Richard S. Dunn, James Savage, and Laetitia Yaendle, eds., The Journal of John Winthrop,
1630–1649 (Cambridge, MA, 1996), 342.
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The Transformation of Law and Economy in Early America 375
planting hemp and flax, clothmaking, mining, raising sheep, and building
bridges and wharves. Towns chipped in grants of land for gristmills,
sawmills, and ironworks, often sweetened by tax exemptions and freedom
from militia duty. The effect was to socialize the start-up costs of economic
development by creating legally enforceable rights – some of which resembled
property rights – in selecte,d grantees. Regulation did not disappear.
Town or colony governments continued to set ferry tolls and tavern hours,
regulate the weight of loaves of bread, and oversee exports. But promoting
development became paramount.
There the relationship between law and economy in New England
remained for the rest of the seventeenth century: a mixture of government
stimulus and regulation that tried, with mixed results, to overcome
the limitations of land, labor, resources, and money within the framework
of covenanted communities that emphasized not the individual, but the
individual’s obligations to God and to others, while at the same time seeing
a person’s financial success as a sign of God’s favor.
III. THE LAW OF TOBACCO
New England’s efforts to promote and regulate a diversified economy stood
in sharp contrast to Virginia, where regulation of the economy in the early
years operated within the framework of martial law. Until 1618, all land
was owned by the Virginia Company and worked by strictly supervised,
military-style gangs of laborers bound to the Company by indentures for
specified terms. Only when tobacco took root as the engine of the Chesapeake
economy did the Company introduce the headright system by which each
settler received fifty acres of land for himself, each member of his family,
and each bound laborer he imported. Tobacco soon dominated the economy
so completely that every point at which law touched on the economy had
something to do with tobacco, whether it was labor, finance, exchange, or
regulation.
Tobacco was a labor-intensive crop – an attribute that, when coupled
with its huge profitability, sharply raised the demand for, and consequently
the value of, labor. Contract law sailed to the rescue. Beginning in 1619,
the Virginia Company recruited labor in England by providing passage to
Virginia as a loan that workers agreed to repay with their labor services
for a specified term of years, usually four but sometimes as high as seven.
The contracts of indenture they signed memorialized the terms of their
agreement. The Company then transported the now-indentured servants
to Virginia, where it auctioned or sold the contracts and the labor they
promised to planters who agreed to furnish the servants with food, clothing,
and lodging and, at the end of the term of indenture, “freedom dues” – a
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376 Bruce H. Mann
suit of clothing and a small allotment of land. Private agents and ship
captains soon took over recruitment and transportation from the Company.
Indentures were freely assignable; that is, they could be transferred from
one master to another, whether by sale, gift, inheritance, or as stakes lost at
cards, with each subsequent owner acquiring the servant’s labor for whatever
term remained under the contract.
From a lay perspective, and perhaps also from the perspective of masters
and servants themselves, indentured servants resembled a species of property,
sold from one master to another without the servant’s consent. But
they were not. Even as indentured servitude developed into a distinctive
legal institution, it remained a creature of contract law, not property law.
Workers had some latitude within which they could negotiate the terms of
their indentures, depending on what skills they offered, and the master’s
rights were in the servant’s labor, not the servant’s person. This did not
mean that masters and servants were equal contracting parties, as modern
contract law would presume, but the indentures were no less contracts
for the imbalance. In one key respect, the law did acknowledge that labor
indentures were not ordinary contracts. Whereas the standard legal remedy
for breach of contract was monetary damages, courts routinely ordered
specific performance of indentures, requiring the breaching party, whether
servant or master, to perform the labor or deliver the maintenance that he
or she had promised in the indenture. In the seventeenth century, at least,
there was no monetary substitute for bound labor.
White indentured servants initially supplied the labor needs of the Southern
and Caribbean colonies. However, within a short time in the sugar
colonies of the Caribbean and by the end of the seventeenth century in
the tobacco colonies of the Chesapeake, indentured servitude had yielded
to African slavery as the dominant labor system. Part of the persistence of
indentured servitude in the Chesapeake was a function of differences in the
conditions of cultivation; tobacco was not suited to the routinized labor
of work gangs and could be grown profitably on small farms as well as on
large plantations. Part was a function of timing. Only toward the end of
the century did Virginia and Maryland, with their dwindling supplies of
land, have to compete for immigrant labor with Pennsylvania, where an
abundance of cheap land promised greater post-indenture opportunity for
small farmers. There were other economic factors, too, and some political
ones as well, but critical to the emergence of slavery as the dominant labor
system in the Chesapeake was the evolution of a clear and unambiguous
legal definition of slaves as property. Slavery had certainly existed before,
but it was the legal articulation of slavery as a status of lifetime, heritable
servitude that applied to all Africans and only to Africans that firmly bound
property law to the tobacco economy.
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The Transformation of Law and Economy in Early America 377
Tobacco also shaped the law of finance and exchange in the Chesapeake.
As the only crop of consequence, the entire export trade – and therefore the
entire wealth – of the region rested on it. Tobacco gave British merchants a
direct involvement in the Chesapeake economy that they did not have in the
colonies to the north. It also gave planters a familiarity with sophisticated
commercial credit instruments that most economic actors in New England
did not have. Bills of exchange, the workhorse of trans-Atlantic commercial
credit, penetrated local credit transactions to an extent unmatched
elsewhere. This suggests a somewhat higher level of legal and financial
sophistication in the plantation economies, but it also reflected an important
structural difference between the Southern and Northern economies
that had far-reaching consequences. Almost from the beginning, settlers in
the plantation colonies, where the economies revolved around single staple
crops – tobacco, rice, or sugar – did more business with consumers and suppliers
in Europe and less with one another than did settlers in the Northern
colonies, which of necessity developed more diversified, if less profitable,
economies.
IV. CREDIT AND ITS CONSEQUENCES
This description of the plantation economies points toward what became
the overriding legal and economic issue of the eighteenth century: credit.
Virtually every significant development at the intersection of law and economy
bore a direct or indirect relationship to credit. Indeed, one could,
without exaggeration, write the entire history of law and economy in the
long eighteenth century through the lens of credit. Credit was the wheel of
commerce, both foreign and domestic. It was the engine of internal development.
It was the foundation of finance, both public and private. It drove
the settlement of the frontier and fueled vast land speculation schemes. It
enabled farmers to buy land and livestock and planters to purchase land
and slaves. It made possible the specialization of business activities that
distinguished urban towns and cities from rural areas. It gave wing to the
consumer revolution. And its withdrawal shattered lives and economies.
What gave credit legal, rather than just economic, significance was its
conjoined twin, debt. The two were inescapable, integral facts of daily life in
early America, whether one was an Atlantic merchant or a rural shopkeeper,
a tidewater planter or a backwoods farmer. Debt cut across regional, class,
and occupational lines so completely that everyone stood somewhere on the
continuum of indebtedness that ran from prosperity to insolvency, either in
their own right or by their dependence on a husband, a father, a master, or
an owner. One can see this in the pervasiveness of debts owed and owing in
probate inventories, in the predominance of debt actions in civil litigation,
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378 Bruce H. Mann
in the vast number of account books that have survived but never found their
way into litigation, and in the fact that promises to pay were themselves
a medium of exchange, circulating as money through factoring of open
accounts and assignment of notes and bonds. Relations between debtors and
creditors, and consequently the economy itself, were shaped by such matters
as the legal form of the debt, whether a debt was secured or unsecured, the
procedural rules of debt collection that came into play when debtors failed
to pay debts when they were due, and the laws of insolvency, bankruptcy,
and imprisonment for debt that governed the disposition of the debtor’s
person and property. If credit was the lifeblood of the economy, law was the
framework within which credit and the economy operated.
Each of the different legal forms used to extend credit played a different
role in the economy, a role that in large part turned on the differing degrees
to which each one facilitated repayment. Throughout the colonial period,
the form of debt that virtually everyone – rich and poor, urban and rural,
even servants, many women, and some slaves – was familiar with was the
account book. But book accounts did not dominate economic exchange in
the eighteenth century as they had in the seventeenth. As running accounts
of face-to-face dealings between creditors and their debtors, they were creatures
of relatively insular local economies in which conditions of land, labor,
and transportation kept trade largely within well-worn channels. By their
very nature, book accounts recorded the transactions of people who dealt
with one another repeatedly and who thus knew, whether through trust
or merely familiarity, what to expect of one another. Within this context,
the comparative informality and the procedural and evidentiary flexibility
of book accounts gave them enough legal indeterminacy that payment
was often more a matter of negotiation than of legal compulsion. However
appropriate book accounts may have been for local economies, they
were ill suited for more complex commercial transactions or for the direct
extensions of credit at interest that constituted investment. There, formal
written credit instruments supplied the economic need.
Written credit instruments came in several precisely defined forms, in
all of which debtors, over their own signatures, expressly promised to pay
specific sums to creditors, either on demand or by a certain date. Bonds,
for example, could be conditioned or simple. Both were contracts under
seal by which the obligor bound himself to pay a stipulated sum to the
obligee on a stated date. Conditioned bonds, which were the more common
and useful of the two, differed from simple bonds in that they predicated
payment on the obligor’s failure to perform a specified condition before the
date set for payment. That condition, known as a condition of defeasance,
could be either the performance of some act or the payment of a sum of
money. Conditioned bonds guaranteed the conveyance of land, the delivery
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The Transformation of Law and Economy in Early America 379
of commercial goods, and the repayment of loans. Their guarantee lay in
their in terrorem effect. Failure to perform the condition made the obligor
liable for the full amount of the bond, which was typically twice the sum
lent or twice the value of the items to be delivered.
Bills obligatory and promissory notes or notes of hand were promises
signed by the debtor to pay the creditor a specified sum within a stipulated
time or on demand. Bills generally acknowledged the debt and recited what
we would now regard as consideration for the debtor’s promise – that, for
example, the obligation was for goods received – whereas notes were simply
unadorned promises to pay the named amount, much like I.O.U.’s. Bills
obligatory were signed by witnesses; promissory notes were not.
Bills of exchange were a further variant and, for commercial purposes, a
very important one. The precursors to modern checks, bills of exchange facilitated
long-distance commercial transactions by serving as vehicles for borrowing
money, making third-party payment of debts, and moving money
from one place to another without having to do so physically. In its plainest
form, a bill of exchange was a written order by one person instructing a
second to pay a third. Or, in legalese, a drawer drew on a drawee in favor of
a payee. The drawee, whose position in the transaction approximated that
of the bank where one has a checking account, became liable for payment
to the payee only by agreeing to do so when physically presented with
the bill; that is, again in legalese, by accepting the draft. The person who
presented the bill for payment was, technically, the holder of the bill. He
might be the original named payee, or someone to whom the payee had
endorsed the bill, or a subsequent endorsee from intervening endorsers. On
acceptance, the drawer became liable to the drawee for the amount of the
draft. A drawee’s refusal to accept a draft had serious consequences for the
drawer, the magnitude of which is best captured by the fact that rejected
bills were referred to as “dishonored.” Drawees sometimes refused drafts
because they lacked funds to pay them. More often, however, they did so
because they lacked confidence in the drawer’s ability to reimburse them;
in other words, they doubted the drawer’s creditworthiness. A dishonored
bill of exchange thus reflected directly on the honor and reputation of its
maker and, by extension, on all his other bills.
Unlike book debts and oral promises, written credit instruments carried
interest, either by contract or by statute. If by contract – which is to say, by
agreement between debtor and creditor, whether the agreement was truly
negotiated or imposed by the creditor – the rate of interest and when it
would begin to accrue were stated in the instrument. If by statute, it usually
took the form of a maximum legal rate, above which lay the forbidden
realm of usury. Also unlike book debts and oral promises, written credit
instruments were assignable; the creditor could transfer the instrument by
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380 Bruce H. Mann
endorsing it to a third party, who would then have the right to collect the
amount due on it from the debtor, interest and all.
Assignability plays a crucial role in commercial economies. A proper
credit system requires that debts be transferable, most importantly because
the ability to transfer a debt permits the transferors to pay their own debts.
With assignability, the debtor’s promise to pay becomes a kind of currency
that circulates from one assignee to another, coming to rest only when whoever
holds the written evidence of the promise asks the debtor to make
good on it. Local traders can thus satisfy their debts to their suppliers by
endorsing over to their suppliers the promissory notes they have received
from their local customers in payment for goods purchased – thereby transferring
to their creditors the promises to pay that their customers have
made to them. The one who ultimately demands payment of the note from
the debtor whose note it is will then be the more distant supplier, not the
local trader with whom the debtor had originally dealt. For this process
to work, promises to pay must be severed from the transactions that give
rise to them and be treated as essentially fungible. Only then can written
credit instruments circulate in the economy. Assignability thus promoted
economic efficiency by depersonalizing the relationship between debtor and
creditor, part of the social cost of commercialization.
Notes, bills, and bonds were instruments of a commercial economy. But
different colonial economies commercialized at different times and in different
ways. For example, in the seventeenth century the Dutch in New
Amsterdam, which was established essentially as a trading post, applied
the same formal writings obligatory executed by the debtor before a notary
and two witnesses, then recorded in the notary’s register, used in Amsterdam
itself, which was rapidly becoming the leading financial center in
Europe. Less formal debt obligations became common only after the transfer
to English rule in 1664. Similarly, virtually from their inception, the
plantation colonies of the Southern mainland and the Caribbean produced
valuable export crops for the European market – sugar in the Caribbean,
tobacco in the Chesapeake, rice and indigo in South Carolina – which meant
that they were full participants in the trans-Atlantic economy.
The economics of sugar and rice cultivation more or less compelled
large-scale operations, creating capital-intensive plantation economies to
which entry was very expensive, primarily because of the high cost of slave
labor. To meet these costs, planters relied on credit, which, because of the
large sums required, was usually trans-Atlantic rather than local in origin.
Large planters were thus doubly bound to the trans-Atlantic economy for
their markets and their credit, both of which relied on promises formally
embodied in commercial credit instruments. Planters typically paid for
purchases in bills of exchange drawn against the planter’s credit balance
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The Transformation of Law and Economy in Early America 381
with a metropolitan merchant or, more often, against the anticipated value
of commodities shipped to market but not yet sold or even landed when
the bill was drawn. The purchase of slaves was usually a credit transaction
in which planters paid in bills of exchange payable two, four, or six months
after acceptance, or in bonds due at specified future dates. The length of
time required for payment, like the prices of the slaves themselves, was a
market phenomenon governed by conditions of supply and demand both
in the slave trade and in the trade in the staple crops produced by slaves.
The bills of exchange and bonds used in these transactions were sophisticated
commercial instruments designed to facilitate long-distance credit.
They also penetrated local transactions because of the many planters who
dealt directly with English merchants rather than with local intermediaries
and so were accustomed to using them and, in the case of bills of exchange,
for the very practical reason that the funds and credit on which a planter’s
bill of exchange drew lay on the books of the British merchant to whom
the planter shipped his tobacco. Yet it would be misleading to describe the
plantation economies as commercial economies in any true sense, despite
their use of commercial instruments. To be sure, trade in sugar, rice, and
tobacco could be enormously profitable. Because of them, the plantation
colonies were the only North American colonies to trade with England on
anything approaching an equal footing. They were the only colonies from
which the ships that had brought consumer goods could return to England
laden with valuable cargo. Planters made large capital investment in land
and slaves and often amassed considerable wealth, much greater than farmers
or even merchants in the colonies to the north. But “commercialization”
describes a set of economic practices and values, not merely a profitable
trade. Their wealth and use of commercial paper notwithstanding, planters
self-consciously adhered to a traditional set of agrarian values that regarded
participation in the market as primarily a means to the end of presenting
oneself as a gentleman, which by definition meant holding oneself apart
from, and above, the marketplace. So deeply ingrained and enduring was
this posture that even after the Revolution Southern Jeffersonians disdained
commerce while embracing trade. “Trade” was an accumulation of exchange
transactions. “Commerce,” to its detractors, was a world view dominated
by the pursuit of profit for its own sake.
The seeming anomaly of planters entirely dependent on trans-Atlantic
trade using commercial credit instruments while disdaining commerce
makes more sense when viewed against the vagaries of the tobacco and
sugar markets and the legal responses to them in the eighteenth century.
Debtors and creditors in the Chesapeake – or, more precisely, Chesapeake
debtors and their local and foreign creditors – lived in a state of mutual
dependence possible only in a highly leveraged economy, where the fortunes
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382 Bruce H. Mann
of borrowers and lenders were so thoroughly intertwined that they often
seemed more like partners. Debt was a constant companion of the successful
and unsuccessful alike; few planters after 1660 managed to avoid it.
Planters purchased slaves with promises to pay for them at a future date.
They shipped tobacco to British merchants on the understanding that the
payment they ultimately received would be based on the market value of
the tobacco when it arrived. They bought supplies and consumer items
from British merchants and local traders by promising to pay for them
with anticipated future profits. They bought tobacco from and resold goods
to lesser planters who did not have their access to British markets, with
all parties exchanging promises as well as goods. The flow of commodities,
goods, and slaves within the Chesapeake and across the Atlantic thus rode
on debt; that is, on promises that were, at least in theory, legally enforceable.
Similar credit patterns prevailed in the sugar and rice colonies to the south.
The large role of English credit in the plantation economies occasioned
a wide range of legal responses, most of which were shaped by the more or
less continual decline in commodity prices from the closing decades of the
seventeenth century onward. The link lay in the fact that lower prices for
sugar or tobacco tended to drive planters deeper into debt, which creditors
periodically attempted to collect. To deter creditors, colonies resorted to
various legal and legislative measures, the most important of which recognized
the economic centrality of land and labor. For example, land in the
plantation colonies, Jamaica included, typically enjoyed a statutory exemption
from attachment. Creditors could not seize a debtor’s land and sell
it out from under him unless the execution was pursuant to a mortgage
foreclosure, in which case it was the debtor who had put the land at risk
by pledging it to secure a debt. All other property, apart from a few small
exemptions, was vulnerable to a creditor’s levy. But land was worthless
without the labor to work it, as the Virginia House of Burgesses recognized
in 1705 when it formally reclassified slaves as real property – that is, land –
which meant they could not be reached by creditors unless their owner had
mortgaged them. Also in 1705, the Virginia burgesses enacted two additional
impediments to creditors: a statute of limitations barring them from
recovering sums due on judgments or bonds after a certain period of time,
and a requirement that attorneys suing local debtors on behalf of English
creditors post bond to cover court costs and damages. The spirit of these was
not new. At various times in the seventeenth century Virginia had allowed
debtors to spread payments to their creditors across three harvests, and the
assembly had twice suspended collection on debts contracted in England.
For its part, Maryland shielded its planter-debtors when the tobacco crop
failed in 1724 by imposing a general stay of executions, thereby preventing
creditors from collecting on judgments they had won in court. Jamaica tried
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The Transformation of Law and Economy in Early America 383
a similar protection in 1728 by requiring creditors to accept commodities
in payment of debts at fixed prices, but the law died without approval by
the Board of Trade.
In addition to addressing the problem of tobacco-related debt by limiting
private law remedies, Virginia and Maryland adopted regulatory measures
as well. Both colonies tried to boost the sagging price of tobacco by reducing
the quantity and improving the quality of the tobacco exported each
year. Their efforts to do so – banning the inferior second-growth tobacco
leaves and barring export of trash tobacco (stems, pulverized leaf, and other
scraps) – proved unenforceable. The Virginia burgesses briefly added teeth
to the restrictions in 1713 by requiring inspection of all tobacco at central
warehouses and destruction of all trash tobacco. But planters who produced
the targeted grades of tobacco protested, and the Board of Trade
disallowed the law four years later. When depression returned in the 1720s,
both colonies reimposed the prohibitions on seconds and on exporting trash
and limited the number of tobacco plants each worker could tend. These,
too, proved unenforceable, partly because of the resistance of poor planters
and planters in areas where inferior grades of tobacco predominated, who
rightly feared that the consequences would fall disproportionately on them,
and partly because lower exports would have reduced the duties and fees
collected by the Board of Trade and the Maryland proprietors.
There matters might have rested but forWilliam Gooch, the royal governor
of Virginia. Gooch was dispatched to Virginia in 1727 with instructions
to ask the assembly for a bill that would permit British creditors to
recover sums owed in Virginia to their bankrupt British debtors, which
both Virginia and Maryland barred. Gooch’s failure to win such a bill
helped persuade British merchants to join him and wealthy planters in
lobbying for and winning passage of an inspection act in 1730. The act
had far-reaching consequences for both public and private law in Virginia.
It required all planters to take their tobacco to government-owned warehouses.
There, public officials would inspect the tobacco; pass only what
they judged good, merchantable, and free from trash; and burn the rest.
The inspectors then weighed the good tobacco and gave planters tobacco
notes or warehouse receipts denominated by weight that added up to the
amount of tobacco they had deposited for export to Europe. The notes
circulated within the colony as legal tender for taxes and private debts.
Maryland, whose planters generally grew lower quality tobacco, did not
enact a similar law until 1747, after years of growing price differentials
between inspected, quality-certified Virginia tobacco and its uninspected
Maryland counterpart.
The implications of the Virginia inspection act for private law lay in the
tobacco notes it authorized. The economies of the British North American
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384 Bruce H. Mann
colonies suffered from the lack of an adequate circulating medium of
exchange. Led by Massachusetts in 1690, several colonies issued paper currency
in the form of bills of public credit. Paper money redressed chronic
shortages of specie and credit, stimulated internal trade, and facilitated
consumption, but it was also prone to crippling depreciation, especially in
New England, as few colonies had the fortitude to tax old issues out of circulation
before emitting new ones. Virginia was the last colony to issue paper
currency, in 1755. Until then, it relied on bills of exchange, bonds, and the
new tobacco notes. Tobacco notes, which were backed not by promises but
by hogsheads of quality-certified tobacco, and bills of exchange, which drew
on planters’ accounts in England, enjoyed a modicum of stability because
their value was ultimately determined by the value of the tobacco crop in
pounds sterling. This comparative monetary stability gave lenders a measure
of security that a depreciating currency could not. It also permitted
borrowers to give bonds for their obligations, whether for cash advances or
to refinance existing debts by rolling book accounts with local traders over
into the more certain promises of bonds.
Bonds, tobacco notes, and bills of exchange all circulated inVirginia as the
equivalent of money. Bonds offered protections to debtors that promissory
notes did not. The procedural rules of the action of debt by which bonds
were litigated limited the creditor’s recovery to the contract amount and
barred additional claims for damages, and equity rules permitted judges
to chancer the contract sum stipulated in the bond to a lower amount.
Ironically, in 1732 debtors lost other protections they had enjoyed when
Parliament passed an act “for the more easy Recovery of Debts” in the
colonies that made land, houses, chattels, and slaves liable for satisfying
sterling debts due by bond (the debts most commonly owed to British
merchants), any colonial law to the contrary notwithstanding.
Although the 1732 debt recovery act applied throughout the colonies,
its greatest impact was on the plantation economies. By exposing slaves to
the claims of their masters’ creditors, it enhanced the legal efficacy of the
bonds planters gave to buy them, thereby encouraging expansion of the
credit-based slave trade. It also facilitated the expansion of the store system
that was the foundation of Scottish merchants’ success in the tobacco trade.
Scottish factors aggressively established stores far upstream in the Piedmont
region, selling supplies on credit to smaller landowners while engrossing
much of their tobacco crops for the Glasgow firms. Although the initial
credit was usually on book accounts, a substantial portion of this shortterm
credit was converted into long-term obligations, primarily bonds or
mortgages. When the Scottish factors sued for these debts, which they did
not hesitate to do, they not only had the colonial debts act behind them, but
as local creditors of locally contracted obligations they also sidestepped the
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procedural impediments that Virginia regularly threw up against foreign
creditors.
Mortgages performed different credit functions in different colonies. For
example, Jacob Price has described mortgages in the Caribbean as “the last
stage in the ontogeny of debt: book debt, bond, judgment, mortgage.”2
When a planter ran up accounts on book too large to be cleared by the
next crop or two, he might give his creditor – a local or British merchant
or trader – a bond to guarantee repayment and, incidentally, to gain time.
If the planter failed to pay the bond, the creditor could then sue and win
judgment. To forestall execution on the judgment, the planter would give
his creditor a mortgage on some or all of his land and slaves. Mortgages
used in this fashion, to secure payment of a judgment, performed a very
different economic function than did mortgages given to secure credit. As
an example of the latter, consider the transformation of South Carolina from
an unimpressive outpost in 1690 to a wealthy colony whose great planters
produced rice for the European market by 1740, which was driven in part
by mortgage-backed credit, as small farmers expanded their operations and
became planters by mortgaging their land and slaves to secure loans to
purchase more land and slaves. These were mortgages to finance development,
not to secure prior past-due obligations. As the mortgagees were
often Charleston merchants and the mortgagors rural farmers and planters,
mortgage lending in South Carolina represented investment by urban merchants
in country plantation development. Investors also included artisans,
widows, and, in time, institutional investors, such as local parish vestries
and even the Society for the Propagation of the Gospel in Foreign Parts – a
sure sign of the growing maturity and sophistication of the credit market.
The mortgage market did not finance the agricultural development of the
South Carolina lowcountry by itself, but it was a major source of the capital
that did.
Mortgages played yet another role in New England and the middle
colonies, where they were the essential security mechanism in every attempt
to establish a land bank. The object of a land bank was to create a stable
circulating medium of exchange by issuing paper money backed by the
security of mortgages on land. The idea itself circulated as early as the
1650s. In 1684, Massachusetts became the first colony to consider, and
to reject, a proposal to establish a private land bank. Other attempts to
create private land banks generally met stiff opposition, but in the quartercentury
from 1712 to 1737 ten colonies created public land banks, usually
labeling them loan offices. Only Delaware, Virginia, and Georgia did not.
2 Jacob M. Price, “Credit in the Slave Trade and Plantation Economies,” in Barbara L.
Solow, ed., Slavery and the Rise of the Atlantic System (Cambridge, 1991), 35.
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386 Bruce H. Mann
The colonial loan offices lent provincial paper money to citizens on the
security of their land, farms, town houses, or other real estate, with the
hope of promoting trade and industry. Despite the popularity of the loans,
the effect on business was uncertain, although the interest paid by the
borrowers did meet a variety of government expenses, such as poor relief,
schools, public buildings, and the like. By and large, land banks succeeded
in the middle colonies and failed in New England. Land – the irreducible
core of mortgage-backed lending – was simply more valuable in the middle
colonies than in New England because of the region’s profitable commercial
agriculture, and loan directors there were much more rigorous in requiring
that the lands mortgaged were ample security for the money borrowed.
In addition, the middle colonies showed significantly more restraint in the
volume of currency issued, sparing themselves the ruinous depreciation that
characterized New England currency, which at times seemed to be printed
with near-abandon.
V. COMMERCIALIZATION AND CREDIT
Commercialization of the New England economies proceeded along different
lines and employed different legal forms than in the Southern plantation
economies. The middle colonies partook of both, though with a greater affinity
for the New England model. Internal trade in New England expanded
dramatically in the first half of the eighteenth century, spurred first by a
boom in international trade through Boston in the 1690s and later by rapid
population growth and periodic military expeditions to Canada and against
the Indians. The rate of population growth outstripped the availability of
new land for settlement. The resulting pressure on land encouraged more
specialized cultivation to adapt to the different types of land. Specialization
in turn led to commercial farming, both because of the inherent need
to market crops and the development of large markets for foodstuffs in
the West Indies. Market farming and agricultural specialization did not
develop as fully in New England as they did in Pennsylvania or the Chesapeake.
Nonetheless, the agrarian economy of the region developed enough
to change the contours of commercial activity. With more products available
for export, secondary ports and market towns grew to accommodate
the demands for markets and transportation. The concentrated population
and market orientation of these towns encouraged the appearance of artisans
and shopkeepers. The lure of greater local trade opportunities encouraged
people to enter the lists as small traders and challenge established merchants.
This was the process of commercialization: people trading across
greater distances, credit networks snaking through the countryside, the
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The Transformation of Law and Economy in Early America 387
specialization of business enterprise, farmers and craftsmen trading on the
side, artisans supporting themselves primarily by their crafts.
Commercialization was also an embrace of different values. To take just
one prescient example from the beginning of the economic transformation,
in 1699 the ministers of the Cambridge Association in Massachusetts formally
abandoned their categorical objection to usury – opposition to which
had been a cornerstone of Puritan commercial theology since the founding of
the colony – conceding that “Humane Society, as now circumstanced, would
sink, if all Usury were Impractable.” They now justified moneylending, at
least at reasonable rates, in terms appropriate to a commercial economy;
namely, that it is only equitable for a lender to reap some benefit from a
borrower’s use of his property and that money is a commodity, an asset, and
as such “is really as Improvable a thing as any other.”3
As the New England economies changed, credit transactions rested
increasingly on promissory notes, not on the more elaborate bonds common
in Virginia. The advantage of written credit instruments in the new
economy was that the debtor’s liability on them rested not on the substance
of the transaction, as it did in book debt, but rather on whether the note
or bond itself met the legal requirements of form. Except for pleas that
were limited in scope and often technical in nature, notes and bonds bound
debtors to what they had signed. As a consequence, the outcome of litigation
on them was more predictable. Rates of contest declined as debtors
increasingly admitted liability by confessing judgment against themselves
or by not appearing in court at all and allowing judgment to go against
them by default. Most actions on notes and other written instruments were
not disputes at all but rather fairly routine reductions of debts to judgments.
All of this reflected a world of relations between debtors and creditors that
was rather different from the world of book debt. The exchange recorded
by book accounts was often, though not always, commercial in nature. It
might represent trading on account with a local shopkeeper, but it could
just as easily arise from labor services by a neighbor. The exchange covered
by notes and bonds, on the other hand, was always commercial. It arose
from trade transactions, from direct extensions of credit, or from contractual
undertakings. With their comparative precision and certainty, notes
and bonds were instruments of increasingly commercialized economies in
which trade and credit networks spanned greater distances. This was as
much the case in Pennsylvania, where merchants were much more likely
than farmers to formalize economic transactions, and New York, where
3 Quoted in Perry Miller, The New England Mind: From Colony to Province (Cambridge, MA,
1953), 309.
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388 Bruce H. Mann
economic relationships were increasingly contracted in writing and enforced
according to their terms, as in New England.
One factor in the preference for notes over bonds was the advent and
spread of paper money, which itself was both a cause and a symptom of
commercialization. Bills of public credit were, in effect, public variants of
private promissory notes. Their very appearance signaled growing involvement
in a commercial economy. From the time Massachusetts first issued
bills of public credit in 1690 as an emergency revenue measure after a
series of costly imperial wars, people recognized their value as a circulating
medium of exchange independent of any government revenue potential.
For farmers and new traders who ran marginal operations with little capital
support, paper money eased the chronic shortages of currency and credit
that limited their growth. It answered the demands for capital of farmers
who wanted to buy land or livestock and of traders who needed goods to
trade. It provided an alternate source of credit for retailers, shopkeepers, and
others in the domestic market that enabled them to bypass large wholesalers.
With paper currency, new merchants entered towns and competed
with established traders by offering farmers cash for their goods. Farmers,
in turn, used the cash to repay debts they owed to the merchants with whom
they usually ran up long book accounts – a relationship that could resemble
economic bondage when they fell far enough behind.
As paper money circulated through the New England economies, touching
people whose previous participation in the economy had been conducted
by commodity exchanges, it democratized credit, allowing local traders and
entrepreneurial farmers to share the aspirations of Atlantic merchants. Early
proponents had recognized that ordinary people, not just large merchants,
wanted to engage in commerce. But what some saw as opportunity, others
viewed with concern. Cautionary writers argued that the credit made freely
available by paper money encouraged people to spend beyond their means,
to consume rather than invest. Rather than be satisfied with a competency
appropriate to their station, they complained, people sought to emulate
their betters, in the process incurring indebtedness that threatened both
their moral and economic independence. To their minds, credit and everything
it entailed – the right to engage in commerce, to borrow, to consume –
should be limited to the privileged few.
The most vocal opponents of paper money objected on other grounds.
These were the great Atlantic merchants, whose direct connections to
England gave them ready access to credit. Paper currency was of no use
to them in their international trade, since their foreign creditors would not
accept it. In their domestic transactions, they were the ones who stood to lose
the most if legal tender laws compelled them to receive paper money from
their debtors in payment of their obligations, given the tendency of New
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The Transformation of Law and Economy in Early America 389
England bills to depreciate. Moreover, competition from new merchants
with the growing contacts in the countryside that paper money facilitated
threatened the dominance of established import merchants at the same
time that it drove up commodity prices, which made it more expensive for
Atlantic merchants to assemble cargoes for export. Complaints to England
by the large Atlantic merchants eventually attracted the scrutiny of Parliamentary
regulators, who moved to bar or restrict additional emissions of
paper currency.
Agents of commercialization appeared on both sides of the issue. They
all assumed the existence of competing economic interests in society – an
assumption alien to earlier ideas of the covenant and an organic body politic.
The controversies over paper money and banks were an emphatic rejection
of the Puritan jeremiad, with its religious theme of declension, as a means
of explaining commercial change and an embrace of the secular language of
political economy. Even ministers who contributed to the debate wrote
in terms of the role of money, the balance of trade, and political virtue,
not of sin and punishment. This in itself was a fundamental change. But
the debates also raised issues and questions that continued to occupy law
and economy well into the Early Republic: Who had the right to participate
in commerce, to borrow, to consume? Would easy credit undermine
industry and frugality? Did consumption threaten the social order? Did
debt compromise independence and political virtue? What was the proper
role of government in financial and economic affairs? Was credit necessary
to a commercial economy? What was the proper role of commerce? Was
depreciation a moral issue, an economic issue, or a legal issue?
VI. THE LAW AND ECONOMY OF FAILURE
Written credit instruments and paper money were elements of a commercial
economy based on contractual exchange. As they spread through the
economy, the focus of law inevitably shifted to transactions between individual
economic actors. Issues of debt and contract came to predominate,
one measure of which was the overwhelming proportion of debt-related
actions in civil litigation, not just in New England, but throughout the
northeastern colonies. However, the law of debt and contract had a converse
that was just as important to a commercial economy – the law of
failure. The increasingly commercial economies of the eighteenth century
created new opportunities for success. They also multiplied the risk of failure.
Commercial development rode the crest of a rising tide of indebtedness,
otherwise known as investment. It was a tide that reflected the confidence
of prosperity as farmers and planters, artisans and shopkeepers, traders and
merchants borrowed against anticipated profits to finance the undertakings
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390 Bruce H. Mann
that they knew – not hoped, but knew – would create them. Not surprisingly,
some faltered while others soared. In highly leveraged, largely uninsured
economies, even single misfortunes can bring ruin. However great
the wreckage, debt always remains, and with it questions that only law
can answer: What should become of debtors and their property when what
they owned was not enough to pay what they owed? Did creditors’ claims
to repayment of what they had lent extend to the bodies of the debtors to
whom they had lent it? Could creditors imprison their debtors or bind them
to service? Could insolvent debtors ever hope for release from their debts,
short of repayment in full?
Whether a society forgives its debtors and how it bestows or withholds
forgiveness are more than matters of economic or legal consequence. They
go to the heart of what a society values. At the beginning of the eighteenth
century, people believed in a moral economy of debt that assumed
the dependence of debtors and the omnipotence and inherent justness of
creditors.Within that framework, inability to pay was a moral failure, not
a business risk. Ministers preached that debtors must, if necessary, dispose
of everything they own to repay their debts. God was the “Great Creditor”
who casts insolvent souls into the debtors’ prison of hell. As one minister
wrote, a debtor who failed to pay “not only lost his Religion, but his
Morality too.”4
For these men and for the people to whom they preached, debtors were
morally bound to pay their debts. Insolvency, although pitiable, warranted
no relief other than what creditors might be inclined to grant out of the
goodness of their hearts. Not surprisingly, the law agreed with them. Every
colony, and later every state, permitted imprisonment for debt, most on
mesne process and all on execution of a judgment. Several colonies – all in
the North – bound insolvent debtors to their creditors as indentured servants
to work off their debts. A handful of colonies flirted briefly with true
bankruptcy discharges, others with insolvency laws that distributed the
debtor’s property while leaving his debts intact. Unlike criminals and paupers,
imprisoned debtors had to provide their own food, fuel, and clothing –
supplied from their own resources, the generosity of family or friends, begging,
or the beneficence of a local relief society – or they did without. The
state owed debtors nothing; not food, not clothing, not heat, not sanitation,
and certainly not a discharge.
Quite apart from any moral reservations, attempts to enact insolvency
or bankruptcy laws were compli,cated by the nature of credit itself. Credit
was created in bilateral contracts that were enforceable through similarly
4 Samuel Willard, Promise-Keeping, A Great Duty (Boston, 1691), 18.
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The Transformation of Law and Economy in Early America 391
bilateral litigation. One creditor, one debtor; one plaintiff, one defendant.
Insolvency and bankruptcy proceedings, however, required transcending
the transactional origin of each debt to achieve cooperation among creditors.
Cooperation meant apportioning their losses among themselves, not
securing repayment.
In fits and starts, colonies began to regard an insolvent debtor’s financial
and material remains as rightfully belonging to all of the debtor’s creditors
rather than to the creditor who was quickest to seize them. In part, this
recognition was shaped by the growing geographic complexity of credit.
Trading networks and the assignment of debt obligations swept debtors
into larger economies. Whether or not debtors themselves traveled, their
debts did, so that debtors often owed money to distant creditors as well as
near ones. By the 1750s, the old moral economy of debt had begun to slip.
For the first time one finds people arguing against imprisonment for debt
and for bankruptcy laws. What prompted the change was failure. Economic
growth enabled more people to fail owing greater sums of money to larger
numbers of creditors than had been possible in the smaller, more insular
local economies of the seventeenth century.
The legal landscape changed dramatically with the Seven Years’ War.
Wartime economic expansion, coupled with wartime economic risk, followed
by postwar economic contraction, created the sort of fluid economy
in which both success and failure could flourish. Shortly after the war began,
several colonies experimented with new statutory schemes for discharging
debts as well as debtors, the first concerted effort to do so.Within a two-year
period, 1755 to 1757, New York, Rhode Island, and Massachusetts enacted
bankruptcy systems that distributed insolvent debtors’ assets among their
creditors and discharged them from further liability on their debts. Connecticut
followed suit in 1763. The experiments were short-lived or restrictive
in their application or both. Each one expired or was repealed, leaving
behind at best mechanisms for distributing debtors’ assets without relieving
debtors themselves, and at worst nothing at all.
The economic uncertainties of war were prelude to those of peace.
Economies that had expanded to meet wartime needs and opportunities
contracted. In addition, the demands of British creditors for payment in
specie accelerated its depletion. To make matters worse, tightened enforcement
of British imperial policy, together with high taxes by the colonies
themselves to repay war debts and new Parliamentary measures to bind the
colonies more closely to Britain, notably the Currency Act of 1764, combined
disastrously to block sources of hard currency, drain paper money from
the economy, and prevent new emissions of paper currency. As the supply
of money shrank, commercial transactions required hopelessly long credits
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392 Bruce H. Mann
or reverted to commodity money, taxes could not be collected, and debts
could not be paid. The colonial economies could not function smoothly
or profitably without an adequate circulating medium of exchange. The
postwar recession deepened into a depression that, in Carl Bridenbaugh’s
colorful phrase, “deranged the entire credit structure.”
The war and its aftermath demonstrated to all how far tremors in foreign
markets rippled through the colonial economies. One consequence was to
demystify economic success and failure by clarifying economic cause and
effect, which in turn pushed insolvency farther from moral failure and closer
to simple economic risk. The accompanying flurry of statutes suggests a new
willingness to create a law of failure that was something other than mere
debt-collection process. With the economic impact of war and its aftermath
clear for all to see, it became harder to stigmatize insolvency as moral
failure. But there was a twist. Writers continued to warn against the dangers
of debt in moral terms, but their target now was consumer debt, not
commercial debt. When Benjamin Franklin railed against debt in Poor
Richard’s Almanack – “He that goes a borrowing goes a sorrowing,” “The
Borrower is a Slave to the Lender, and the Debtor to the Creditor” – he was
exhorting his readers not to buy consumer goods on credit.5 Commercial
debt was different. Commercial creditors and debtors were, after all, partners
in “the Race of Commerce.” The redefinition of insolvency from moral
failure to economic risk thus applied principally to debtors who were themselves
entrepreneurs in the changing economy. So, when Americans began
to question the efficacy of imprisonment for debt and consider the utility
of bankruptcy discharges, their animating concern was the people who
trafficked in credit, not those who merely purchased on it.
The American Revolution drove these lessons home with a vengeance.
Like all wars, the Revolution was fought on credit. The Continental
Congress and state governments issued massive volumes of paper money
and loan certificates to sustain the war effort, which of course led to equally
massive depreciation, which in turn was aggravated by inflation, as largescale
government purchases drove prices upward, prompting Congress to
print even more currency. Private debts were only slightly less daunting.
The war had disrupted foreign trade, which was the linchpin of the entire
economy. After the war, prices declined and the economy contracted. At the
same time, British merchants flooded the market with higher quality, lower
priced goods and pressed commercial credit on coastal import merchants to
enable them to feed the pent-up demand for consumer items. The tentacles
of credit followed the goods from importers to wholesalers to retailers to
5 [Benjamin Franklin], Father Abraham’s Speech To a great Number of People, at a Vendue of
Merchant-Goods; Introduced to the Publick by Poor Richard (Boston, [1758]), 14.
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The Transformation of Law and Economy in Early America 393
consumers, from the ports to the backcountry. Exports fell, imports grew,
income and wealth declined, and debt increased.
The instability of paper currency in the 1780s generated several responses.
The most immediate was proposals to charter banks that could issue bank
notes as a form of private currency that would be backed by something more
substantial than the traditional hope-and-a-prayer of government issues.
From the beginning, calls for a bank emphasized the importance of public
credit and a stable paper currency to commerce and industry. Thus, when
Robert Morris procured a charter for the Bank of North America in 1781,
the venture had widespread support among merchants, as did similar banks
organized or incorporated in New York and Boston in 1784 and Baltimore
in 1790. Agrarian interests, however, attacked banks as undemocratic concentrations
of wealth and succeeded in revoking the state charter of the
Bank of North America.
A second response, corollary to the first, was the enactment of state
tender laws, which required creditors to accept paper currency at face value
in payment of debts, no matter what the actual depreciated value of the
currency. Paper money as legal tender for public obligations such as taxes was
familiar enough before the Revolution, but as legal tender for private debts
it remained controversial. Although often cast as debtor-relief measures,
tender laws generated more complex reactions, largely because debtors were
themselves often creditors, which made any tender law a double-edged
sword. In addition, hostility to a state tender act varied with the rate of
depreciation. Tender laws in states with reasonably well-supported paper
currency did not encounter nearly the opposition they did in states with
notoriously devalued currency. Initially, tender laws seemed an unavoidable,
if drastic, solution to the problems debtors faced in how they were to repay
prewar and wartime domestic debts when the only currency available, when
any was available at all, was depreciating paper. Legislatures did not set out
to “defraud” creditors. Rather, they sought to bolster the value of the only
currency they had. The difficulty, of course, lay in attempting to legislate
the value of something that had no intrinsic worth.
A third response was the rapid spread of speculation, which grew at a
fevered pace at the close of the war when soldiers were sent home with
settlement certificates as their pay. Speculators quickly bought up most of
the certificates for as little as ten or fifteen cents on the dollar. In short order,
and aided by a decline in prices that limited the appeal of trading opportunities,
speculative activity spread to every kind of government issue that
contemplated future redemption, whether land warrants or debt certificates.
Within just a few years, a very large proportion of the state and national
public debt was held by speculator-investors who had bought warrants,
certificates, and indents from the originals holders at steeply discounted
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394 Bruce H. Mann
prices, with the result that people began debating issues of debt equity long
before controversy swirled around Alexander Hamilton’s plan for funding
the public debt in the 1790s.
Alongside the “spirit of speculation” in the 1780s was a renewed acquaintance
with failure. The decline of prices, the scarcity of cash, depreciation,
competition from British manufactures, the obstacles to establishing export
markets when no longer part of the British empire, and efforts by British
commercial creditors to collect prewar debts all contributed to a wave of
business failures after the Revolution. Following as they did so closely on
the heels of a steep rise in mercantile activity, the business collapses deepened
the understanding of failure as the downside of entrepreneurial risk.
This made failure the potential common fate of all merchants. In these circumstances,
merchants recognized the value of asserting mercantile control
over failure, much as the law merchant rested on the principle that matters
of commerce were best adjudicated by men of commerce under procedures
that accommodated the demands of commerce. For merchants, the attempt
to control the consequences of failure led to the first postwar bankruptcy
law, enacted by Pennsylvania in 1785. The Pennsylvania statute offered the
holy grail of debt relief – discharge of unpaid debts – only to commercial
debtors who owed a large minimum amount.
The rise of speculation as the investment of choice in the 1790s fundamentally
transformed indebtedness. Speculators stood at the center of a
financial vortex. Their competition for capital drove up the interest rates
they had to offer to investors, which in turn attracted investment from everwidening
circles, both demographically and geographically. When they
failed, the effects of their failure rippled outward, engulfing those who had
loaned them money. The two financial crises of the decade were triggered
by the collapse of speculation schemes – the bursting of William Duer’s
speculations in bank stock and government securities in 1792 and the failure
of large land ventures in 1797, many of which involved Robert Morris.
The resulting economic distress far surpassed any that had occurred before.
For the first time numerous prominent men found themselves imprisoned
for their debts or fugitives from their creditors. Their presence in the pool
of insolvent debtors confounded the normal expectations of social and economic
status and altered the political dimensions of debtors’ relief. As a
result, the debate over debtor relief was recast as a debate on the merits
of bankruptcy. In part, this was because the sudden increase in the number
of people imprisoned for their debts generated new calls for ending
the practice, which necessarily raised the question of how else to deal with
unpaid debts. In addition, the widespread popularity of speculative investment
had helped speed the redefinition of debt from a moral failing to an
economic one for which imprisonment seemed an inappropriately criminal
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punishment. Perhaps most important, the prominence of the speculatordebtors
dovetailed with the traditional ambit of bankruptcy in England,
where relief was available only to merchants, traders, and brokers whose
debts exceeded a minimum that itself exceeded the typical indebtedness of
farmers, laborers, and shopkeepers – in short, of most ordinary debtors.
The first national bankruptcy act in 1800 thus applied only to commercial
debtors whose success had allowed them to amass debts that were far beyond
the means of less prosperous debtors. The statute was, in effect, a national
statement of the “principle” that release from debts was a boon reserved
for capitalist entrepreneurs, while simpler debtors should, by implication,
remember the sanctity of their obligations. However much men of commerce
might dun their own debtors, the law decreed that for them, and
them alone, the hazards of the market trumped moral obligation. Only they
could fail. All other debtors merely grew poorer, their insolvency the result
not of risk but of their reach exceeding their grasp. The Bankruptcy Act of
1800 was a declaration that the new nation was, emphatically, a commercial
republic. It was also short lived. The traditional restriction of bankruptcy
to elite merchants hinted at aristocratic privilege and so made bankruptcy
untenable in the new democratic politics that erupted from the election
of 1800. Congress repealed the statute in 1803, eighteen months before it
would have expired on its own.
The Bankruptcy Act of 1800 highlighted an important fault line in
the American economy. Merchants and other commercial figures tended
to favor bankruptcy legislation because it offered them an entrepreneurial
safety net if they failed – release from debtors’ prison, an orderly apportionment
of their assets among their creditors, who were thereby compelled to
share in the losses, and discharge from liability for their debts, with the
consequent promise of being able to start afresh in business unburdened of
past debts. Planters and farmers, on the other hand, opposed bankruptcy
because it threatened their livelihoods by exposing their land to their creditors’
claims if the trading all of them did on the side swept them within
the ambit of the law by turning them into commercial debtors. Indeed, the
Southern hostility to bankruptcy – the Southern colonies and states never
experimented with insolvency or bankruptcy relief with the urgency that
their Northern counterparts did – may have been a symptom of the region’s
inability to maintain its colonial economic supremacy after independence.
VII. CAPITAL AND INVESTMENT IN THE EARLY REPUBLIC
There was more to law and economy in the 1790s than dealing with failure.
The decade also saw the emergence of a capital market that financed
economic development in the Early Republic and paved the way for the
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396 Bruce H. Mann
corporation to become the engine of the economy in the nineteenth century.
And there was, of course, the corporation itself. The capital market
had three parts: government bonds first issued as part of Alexander Hamilton’s
plan to fund the national debt, stock of chartered private banks, and
insurance company equities. All three were investment vehicles; indeed,
the first two were objects of the speculative frenzy that culminated in the
Panic of 1792. But that was only part of their utility. Banks, for example,
quickly became the primary source of commercial credit, at least in the
North. Planters in the Southern states drew on the same European sources
of credit they had before the war, which is one reason why the South never
developed significant financial services firms and had little control over
development capital. Banks were created by government charter, both federal
and state. Their initial capitalization came from the sale of shares, the
number of which was limited by charter. The twenty thousand shares in
the Bank of the United States offered to the general public in 1791 at the
high price of $400 per share sold out the very morning they were issued.
Together with the five thousand shares retained by the federal government,
they created a financial institution with $10,000,000 in capital. Banks also
accepted deposits from governments and individuals. Governments usually
deposited specie, while individuals typically deposited promissory notes,
bills of exchange, and other securities, which the bank would accept at a
discount and which the depositor could then draw on by writing checks.
What mattered, of course, was what banks did with the money. Quite
simply, they lent it to borrowers. Banks made business loans to artisans, tradesmen,
manufacturers, shopkeepers, carpenters, shipwrights, blacksmiths,
painters, masons, brickmakers, sailmakers, farmers, and others. They helped
finance the creation of a transportation infrastructure by investing in
(in effect, making long-term loans to) the private internal improvement
companies that built turnpikes, canals, bridges, waterworks, and, eventually,
railroads. Banks were not the only source of investment capital –
insurance companies were another – but they were an indispensable source
of commercial credit. Moreover, the bank notes they issued functioned
as paper money – a circulating medium of exchange backed by fractional
specie reserves. Some banks issued their notes in sufficiently high minimum
denominations that only wholesalers could use them. Others, mechanics’ or
farmers’ banks, operated under charters that required them to issue notes
in denominations low enough to be useful to artisans, shopkeepers, and
farmers in retail transactions. These bank notes filled the gap abruptly created
in 1789 when the Constitution prohibited state governments from
emitting bills of public credit. In the absence of a federal currency, they
remained the only circulating paper currency until the Civil War. They
were also the mechanism by which the Bank of the United States acted as
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an unofficial bank regulator, the equivalent of a central bank. There were 32
chartered banks in the United States by 1800, and 210 by 1815, all of which
issued bank notes, accepted deposits, and made loans. Until it closed in
1812, the Bank of the United States, because of its size and branch network,
routinely accumulated large sums in notes issued by the state-chartered
banks. By periodically presenting these notes to their issuing banks for
conversion into specie, the Bank of the United States kept enough pressure
on the banks’ specie reserves to hold their loan and currency volumes within
sustainable limits.
The corporation, like banks, was not a creation of the 1790s. Both had
much deeper roots. But also like banks, the 1790s is when corporations
began to reshape the economy. Variants on the corporation had existed in
America from the beginning of settlement, which had been undertaken
by chartered joint-stock associations, such as the Virginia Company, the
Massachusetts Bay Company, and the Plymouth Company. Massachusetts,
in particular, had long experience with corporate forms, from creating entities
such as town proprietors that resembled corporations in the seventeenth
century to formal grants of corporate privileges to bodies as disparate
as schools, parishes, church officers, marine societies, and overseers of the
poor in the eighteenth century. So routine were corporations that in 1753
Massachusetts enacted what was, in effect, a general law of incorporation,
nearly a century before such laws became the norm. The statute allowed
owners of land that lay outside existing towns or precincts to form associations
to promote its settlement and improvement simply by petitioning a
justice of the peace to issue warrants for the first meeting – a much simpler
process than the standard mode of incorporation, which was by petition to
and charter from the legislature.
Incorporation is a private-law version of the political maxim, “e pluribus
unum”: out of the many, one. It authorizes a group of individuals to join
together in a new entity that is itself a legal person, a self-governing body
capable of holding property and of suing and being sued. The Massachusetts
legislature granted more than one hundred acts of incorporation in the
1780s, the first full decade of statehood. Nearly two-thirds constituted
individual towns, districts, parishes, and precincts as legal “bodies politic.”
Most of the remainder created various religious societies. Others incorporated
educational institutions and charitable societies. Only a few formed
business corporations – the Massachusetts Bank in 1784, the Charles River
Bridge Company in 1785, the Beverly Cotton Manufactory in 1789. In the
1790s, the legislature doubled the number of acts of incorporation it passed.
“Bodies politic” still dominated, but their proportion fell to half. The number
of incorporated religious societies, educational institutions, charitable
societies, and professional associations increased. Most significantly, nearly
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398 Bruce H. Mann
one-fourth of the acts of incorporation granted that decade created business
corporations organized to construct internal improvements, such as bridges,
canals, turnpikes, and waterworks. The legislature also incorporated seven
banks, six insurance companies, three manufacturing companies, and two
mills.
The sharp rise of the for-profit business corporation in the 1790s continued
in the ensuing decades. The stated purpose of the business corporation
was not to make money, however much that may have been the unstated
purpose. Instead, the legislature conferred corporate status to serve a public
purpose. Thus, banks, turnpike companies, manufacturing companies,
insurance companies, and bridge companies all existed, according to their
charters, for the benefit and good of the public, as did incorporated colleges
and universities, religious societies, charities, and institutions such
as the Massachusetts Historical Society. However, the proliferation of business
corporations soon left this commonality behind. Their numbers grew
as opportunities for capital-intensive enterprise increased. The spectacular
failure of Robert Morris’s land companies in 1797 demonstrated the limits
of what one man could accomplish, even one as wealthy and creditworthy
as Morris. By way of contrast, the ability of the corporation to muster large
quantities of capital through the sale of stock and corporate borrowing –
larger quantities than individuals alone could supply – and to apply it in
a concerted fashion were what permitted business corporations to capitalize
on the opportunities presented by the emergence of national markets.
As Pauline Maier has observed, the corporation empowered individuals
“whose resources were unequal to their imaginations” and thus represented
“the most significant form of collectivism to emerge from the Revolution.”
How to restrain its power would be a question for the nineteenth century.
CONCLUSION
The relationship between law and economy is dynamic, not static. So to
say that the focus of law shifted in the eighteenth century to transactions
between individual economic actors is not to say that it remained there.
The rise of the administrative or regulatory state toward the end of the
nineteenth century and the resulting struggle between public and private
would mark yet another stage in the ever-changing relationship between law
and economy. Nonetheless, the transactional focus of law in the eighteenth
century and its intimate connection to credit had far-reaching implications
for American society.
Scholars differ on the nature and even the existence of economic growth
in the eighteenth century. Undeniable, though, is that the American
economies were becoming more commercial, particularly in the North, as
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trade reached across greater distances, credit networks spread through the
countryside, business enterprise grew more specialized, farmers and craftsmen
traded on the side, and people embraced the market as a value in itself
rather than as a distastefully necessary means to a traditional social end. In
legal terms, these commercial economies consisted of thousands of contractual
exchanges, large and small. Each exchange, whether the purchase and
sale of goods or services or the extension of credit, was a bilateral transaction
between two parties, enforceable through similarly bilateral litigation.
Contractual exchange drew more people into a marketplace in which law
was the ultimate arbiter of economic relations.
Commercial law drew no distinction among persons, even though the
economy itself did. The benefits of commercialization were not distributed
evenly, either within or across regions. Economic actors were thus equals in
legal form despite often being unequals in material substance. This duality
formed the basis of two great social, political, and economic developments
in the eighteenth century. One was the growing claim to equality that
helped spur the Revolution and shape the constitutional order that followed.
The other was the gradual coalescing of economic differences into class
distinctions, a process that accelerated with industrialization in the next
century. The two came together in the claims of ordinary men to political
equality that made the Early Republic such a tumultuous era. Their claims
reflected a democratization of American society that might fairly be said
to have had roots in the democratization of credit that accompanied the
intertwined economic and legal changes of the century.
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law and commerce, 1580–1815
claire priest
Was empire-building an animating objective of the U.S. government in its
early years?Was the Constitution enacted to achieve mercantilist purposes?
Were early federal government policies mercantilist? In the early twentyfirst
century, scholars have been answering these questions with a resounding
“yes.” Their answers suggest that American colonialism of the late nineteenth
century and the record of U.S. military interventions abroad since
then are a continuation of values held since the founding.
The scholarship contending that the federal government in the Founding
Era was by nature mercantilist (or “neo-mercantilist”) and imperial,
however, is imprecise and anecdotal. Moreover, it raises complex historical
questions that scholars have not addressed. Why would a nation of colonies
that fought a revolution against an imperial power immediately adopt the
core values of the mercantilist government it had rejected? How “radical”
could the Revolution have been if the framers of the U.S. Constitution
viewed empire-building as a primary objective? More broadly, if that were
indeed the objective, why did the United States avoid the European race
for colonies in Africa, Asia, and the Middle East for most of the nineteenth
century?
Here, I provide a detailed history of British mercantilism and explain
why its core principles were rejected by American political leaders in the
Founding Era. Part I follows Adam Smith’s Wealth of Nations in defining
“mercantilism” as the policies in force during British imperial history in
the seventeenth and eighteenth centuries. According to this definition,
mercantilism comprises several interrelated positions: first, a commitment
to the belief that political power and national strength are achieved by
government regulations that improve the home country’s balance of trade;
second, the acquisition of colonies that are monopolized and regulated to
further improve the mother country’s trade balance; third, the maintenance
of active military policies to defend these colonial holdings; and fourth,
the adoption of a financial system that supports military campaigns to
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secure and protect markets abroad. Most prominent political leaders in
Founding Era America (and likely the general public) subscribed to the
first element of mercantilism: that national prosperity and liquid credit
markets depended on a favorable trade balance. There was, however, little
support for the acquisition, monopolization, or the defense of colonies and
colonial markets, three core features of British mercantilism.
The rejection of mercantilism in Founding Era America was rooted in the
economic and institutional development of the British colonies in North
America. Part II describes how, from the outset, colonial legislatures exercised
authority independently as sovereign powers, although subject to the
regulation and supervision of the royal government. Colonies competed
with one another for trade and enacted independent commercial and economic
legislation. Until the colonies joined together to throw off English
colonial rule during the American Revolution, discussed in Part III, there
was little unity among them, either economically, politically, or through a
sense of a shared colonial identity.
Not surprisingly, after the American Revolution, the states emerged
as the locus of the citizenry’s allegiance and as the primary institutions
dedicated to economic promotion. Part IV shows how hostility to past
Parliamentary regulation transformed into immediate suspicion of federal
government power. Under the Articles of Confederation, individual states
retained the authority to enact trade regulations and had sole authority to
impose taxes. State sovereignty with regard to commercial and foreign policy,
however, left the former colonies financially and militarily insecure. The
weakness of the state sovereignty model of the Articles led to the movement
for a stronger federal government, which resulted in the ratification of the
U.S. Constitution.
The U.S. Constitution left internal commercial regulation principally to
the states, but constrained the states by preventing them from negotiating
independently with foreign governments and from (at least explicitly) discriminating
against each other’s goods. The U.S. Constitution prevented
the states – which remained the most important units of government –
from adopting mercantilist policies.
The federal government’s power to adopt a mercantilist agenda was curtailed
for much of the nineteenth century not, like the states, by constitutional
provision, but by regional diversity, national political ideology,
and electoral choices. The vast differences in the economies of the North,
Middle Atlantic, and South meant that their economic interests were often
opposed to one another. Tariff policy, one of the principal devices available
to structure national economic policy in the nineteenth century, reflected
a constant compromise between regions with diametrically opposed preferences
(Northerners favored tariffs; Southerners were generally hostile to
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402 Claire Priest
them). Moreover, the growing dominance of Jeffersonian republican values
translated into limited resources for the United States to play a central role
in global imperialism: through the first quarter of the nineteenth century
import tariff levels were relatively low, the citizenry was hostile to federal
direct taxes, and the Bank of the United States was severely limited in its
ability to establish a permanent federal debt that would have allowed the
finance of military action similar to that of England and France.
Expansionist principles were embodied in the conquest of Native
American tribes in the West. But the conquest of the West, perhaps
counter-intuitively, represented the rejection of classical mercantilist ideals.
Subsidization of the conquest and settlement of the West by the federal
government reflected the dominant Jeffersonian view that American economic
growth should be advanced by means of the expansion of agriculture,
not by the capture of markets abroad. Moreover, Western expansion was a
popular policy in part because the proceeds from the sale of public lands
were earmarked to reduce the size of the federal debt. Thus in the early
nineteenth century, the conquest of theWest was a means of expanding the
country’s size while respecting the citizenry’s hostility to taxes and to the
federal government. The American government could easily have competed
with European powers for colonies in Africa, the Middle East, and Asia
in the nineteenth century, but it did not. For much of the nineteenth
century, federalism and republicanism prevented American mercantilism
and imperialism.
I. BRITISH MERCANTILISM
“Mercantilism” is a term derived from the critique of British political economy
that Adam Smith advanced in TheWealth of Nations. Smith showed that
centuries of British commercial regulations and military policy had been
justified by inherently flawed ideas about the sources of national wealth and
global power. A principal object of his critique was the widespread acceptance
of “bullionism,” the view that the wealth of a nation is embodied in
the quantity of bullion (specie) circulating within the nation’s borders. Bullionists
believed that the primary means of increasing national wealth was
to draw specie into the national economy from the outside. The sovereign
could help attract specie by enacting policies that improved the country’s
balance of trade – the value of exports in relation to the value of imports.
Under mercantilist assumptions, merchants served as “agents” of the
state in improving the balance of trade. As described by Thomas Mun, a
London merchant and author of a classic 1664 mercantilist essay entitled
England’s Treasure by Forraign Trade, or the Balance of our Forraign Trade is
the Rule of our Treasure (singled out by Adam Smith as exemplifying the
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faulty assumptions he critiqued), merchants were “the Steward[s] of the
Kingdom’s stock [of specie].” The object of government policy was to help
merchants “sell more to strangers yearly than wee consume of theirs in
value.” Those in the government who espoused mercantilist beliefs were
amenable to enacting legislation on the merchants’ behalf.
Mercantilist assumptions justified military interventions to conquer
colonies and to exclude adversaries from colonial markets. The acquisition
of colonies was believed to improve the balance of trade because colonies
provided exclusive access to natural resources or locally produced goods,
like tobacco or spices, that the home country’s merchants could export at a
profit to other parts of the world. Moreover, colonial markets were regulated
to promote the sale of the home country’s manufactured exports.
Mercantilists typically believed that a fixed amount of trade existed in
the world and that a nation could expand its relative wealth and power only
by “taking” trade away from other nations through the capture of colonies.
The expenses of war were justified on the ground that the loss of trade or
of colonial holdings meant a decline in national wealth and power both in
absolute terms and relative to the nation that “acquired” the trade of the
colony. Winning wars, however, required both a competitive military and
a competitive financial system. Classic mercantilism therefore involves a
possible vicious circle: government subsidizes private investment in trade
with colonial producers; greater private investment in the colonies increases
the exposure to loss when colonies are threatened by foreign powers;
greater investment in the colonies requires the government to increase
military expenditures to protect its colonial holdings; increased military
expenditures must be justified by increased investment in the colonies;
and so on.
The History of British Mercantilism
How did mercantilism develop? Mercantilist regulatory systems did not
appear immediately, but emerged alongside the centralized European state.
In Britain, Parliament enacted individual pieces of special interest legislation
benefiting merchants as early as the fourteenth century. By the
second half of the sixteenth century, the Crown began regularly granting
monopolistic corporate charters to groups of private investors and individual
mariners interested in trading ventures abroad. The principal purpose
of these early companies was to run trading posts, delivering goods from the
British Isles to sell abroad and bringing back high-demand items in return.
These trading ventures were typically financed through the vehicle of a jointstock
company. Money from the sale of shares to the public provided the initial
capital. In the late sixteenth century, the joint-stock company device was
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used to finance trading ventures in Russia, Turkey, the Levant, and the East
Indies.
In this “first” stage of mercantilism, the Crown provided little military
support to the trading companies it chartered. The chartered companies
were required to invest in ships capable of self-defense. The Crown viewed
these private ships as a reserve force that it could use, when necessary, for
its own military ends. Military benefits rarely flowed from the government
to the private sector.
The first English colonies in the Americas were organized as for-profit,
joint-stock companies. For example, theVirginia Company of London (chartered
in 1606), which created the first settlement at Jamestown, and its
companion Plymouth Company, which attempted to settle at Sagadahoc,
were both joint-stock companies. Theirs was a far more complicated type
of business than the traditional trading posts. Unlike the companies trading
in the East, which had traded for goods for which they knew a market
existed, the companies operating in America had to discover and develop
lucrative items for export. Finding such goods in North America proved
difficult. The original economic ambition of the British colonies, as reflected
in many colonial charters, was to find gold and silver mines on the scale
of those that had been discovered in the Spanish colonies. But the minerals
were not there to be found. The types of goods that appeared to be
marketable, such as tobacco and rice, required labor. The companies’ ventures
thus became complicated by the need to transport laborers to the
New World and establish permanent settlements with governance structures
and legal institutions. Laborers were initially recruited by means of
indentured servant contracts, later by slavery. Estimates suggest that indentured
servants constituted possibly 50 percent to 66 percent of white males
immigrating to the American colonies between 1630 and 1776, or approximately
300,000 to 400,000 people. Slave importation to British North
America – primarily an eighteenth- century phenomenon – is estimated at
just over 255,000 between 1701 and 1775.
In the initial years, the Virginia Company, the Massachusetts Bay Company
(chartered 1628), and the companies that created the first colonies
in Bermuda (1609–10), Newfoundland (1610), and Nova Scotia (1610)
were not highly profitable. By mid-century, however, goods like tobacco
grown in Virginia, sugar produced in Barbados, and fish in the Northern
colonies proved to be important export items justifying further settlement,
investment, and military support. Joint-stock investments became so profitable
in the seventeenth century that Britons from all classes – from the
monarchy and landed aristocracy, to the urban elite, to the middle classes –
increasingly invested in foreign trade ventures. Those investments, in turn,
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translated into increased political support for government military protection
of colonial trade.
The growth of the navy was a consequence of, and a necessary condition
for, a new, “second” stage of mercantilism. Under Charles I, the state’s
first-stage role had been limited to granting and enforcing monopolistic
charters and providing partial financing for trading ventures. During the
Commonwealth period, in large part due to merchant lobbying, the government
for the first time assumed responsibility for military protection of
merchant vessels trading abroad. The British navy consisted of 39 vessels
in 1648, 80 in 1651, and 287 in 1660. The state monopolized trade with
entire colonies, but British merchants developed open, competitive markets
among Britons within the ports of those colonies. Colonies became the
military responsibility of the state; the British citizenry in theory received
a corresponding benefit through customs revenues and free opportunities
for trade and immigration abroad.With a few exceptions, such as the East
India Company and the Hudson’s Bay Company, monopolistic joint-stock
companies that governed as well as traded declined in importance by the
end of the seventeenth century.
Mercantilism and Political Reform
The commitment of the British government to protecting overseas trade
eventually led to an overhaul of government finances and democratic political
reform. English kings, like other European monarchies, responded to
financial difficulties by compelling wealthy individuals to loan money to the
government, by changing the terms of existing loan agreements, or by unilaterally
repudiating their debts. Bad credit terms also led them to obtain
funds by means of fines and land confiscations. Monarchs historically faced
severe public skepticism about any increase in general taxes needed as security
for government debt obligations. However, the adoption of the Navigation
Acts (described below) threw Britain into its first major trade wars –
that is, wars not involving the conquest of land: the Anglo-Dutch wars of
1652–4, 1664–7, and 1672–4. Government debts incurred during these
wars were unsustainable under the traditional model of English finance.
Britain ultimately expanded its financial capability through the transfer
of power from the monarch to a legislature whose members maintained
the integrity of the government’s financial promises. Parliamentary control
over finances was secured with the ascension to the throne of William
and Mary in the Glorious Revolution of 1688–9. Their acceptance of the
Declaration of Rights and Bill of Rights abolished the royal power
to suspend and overrule enacted law. Parliament took control over the
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government’s finances and increased government transparency and accountability.
The Bank of England emerged by the 1730s as the primary institutional
source of government borrowing. Its notes and bonds were sold
to the public and traded like a currency, which increased the liquidity of
the economy and made the government financially accountable to the public.
Britain entered further wars, this time with France, in 1689–97 (King
William’s War), 1702–13 (Queen Anne’s War), 1744–8 (King George’s
War), and 1754–63 (French and Indian, or Seven Years War). These wars
led to unprecedented levels of government debt in both countries. Britain,
however, was able to borrow at terms twice as good as those available to
France.1
The Navigation Acts
The British Empire was defined by the reach of comprehensive trade regulations
enacted to advance the mercantilist goal of improving England’s
balance of trade. As one act stated, the regulations were intended to keep
the colonies “in a firmer dependance” upon England, and to render them
“more beneficial and advantagious” to the mother country by furthering the
“imployment and increase of English shipping and seamen,” the export of
“English woolen and other manufactures and commodities” to the colonies,
and by making England a clearinghouse for colonial imports (the “commodities
of th[e] plantations”) and for “commodities of other countries and
places” that English merchants could “supply” to the colonies.2 The commercial
regulations were enacted in piecemeal fashion and were often the
product of highly contested political debate in England. They are, however,
collectively referred to as the “Navigation Acts.”
The 1660 “Act for the Encouraging and Increasing of Shipping and
Navigation” was the central statute defining British mercantilism. A 1651
ordinance had required that the produce of the British colonies be transported
in English-owned ships. The 1660 act extended the 1651 ordinance
and prohibited all non-British ships from entering colonial ports. It also
prohibited non-British subjects from acting as factors or merchants in the
British colonies and, therefore, from promoting foreign-produced goods.
The act cemented control over colonial markets by requiring that certain
lucrative items – originally, sugar, tobacco, cotton-wool, ginger, and various
dyes produced in the New World – be exported only to ports in England
1 Britain was also able to outspend France. It spent £73 million on the Seven Years War
to France’s £53 million, and £112 million during theWar of American Independence as
compared to France’s £40 million.
2 An Act for the Encouragement of Trade, 15 Charles II, c. 7 (1663).
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or to another British colony prior to reexportation. Later acts extended this
requirement to molasses, rice, coffee, coconuts, cacao-nuts, pimento, whalefins,
hemp, raw silk, beaver and other pelts, hides, and skins, potash, pearl
ash, and all naval stores, such as masts, yards, tar, pitch, pig and bar iron,
copper ore, and turpentine. Colonial merchants thus were prohibited from
directly exporting these commodities to a foreign port.
The Staple Act of 1663 led to further control over colonial markets by
requiring all European goods, with minor exceptions, to be imported into
the British colonies by way of an English port. European goods thereafter
had to be unloaded in England, duties paid, and reloaded and shipped to
the colonies.
monopolizing the carrying trade
What was the underlying logic of this complex system of acts? The first
grouping of acts related to the regulation of the nationality, crews, and
ownership of the vessels in which goods were shipped. They gave British
ship-builders and merchants almost exclusive dominance in the carrying
trade within the British Empire. In the seventeenth and eighteenth centuries,
goods were sold in colonial ports at prices that were on average 20
percent higher than in English ports, reflecting the costs of transportation.
Monopolizing the carrying trade improved England’s balance of trade by
reserving the revenue generated by the carrying trade to British merchants,
at the expense of the colonists who would have benefited from greater competition.
At the time of the 1651 ordinance, the Dutch dominated the carrying
trade between Europe and the Atlantic colonies. English ships were a
minor presence. The Navigation Acts sought to capture this business fromthe Dutch fleet. The Anglo-Dutch trade wars of the second half of the
seventeenth century reflected, in part, Dutch resistance to the acts and its
attempt to regain the carrying trade. Britain’s ultimate defeat of the Dutch
secured a monopoly of colonial ports for British shipping and led to the
acquisition of new colonies, such as New Amsterdam, renamed New York.
The near-monopoly on shipping within the British Empire imposed
by Parliament was initially met with colonial resistance because the Dutch
offered shipping of imported goods at lower rates and on better credit terms.
Southern colonies suffered from the loss of competition in the tobacco export
business. At the same time, the stimulus to ship-building generated by the
monopoly helped boost the New England economy. The lower relative
cost of materials in New England led it to become the center of shipbuilding
within the British Empire. Over time, rapid expansion of the
British mercantile fleet and increased competition meant British shipping
rates and credit terms fell to levels equal to the rates formerly charged by
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the Dutch. The British shipping monopoly also made it easier to combat
piracy. Limiting all colonial ports to English-owned ships reduced the bases
from which pirates and privateers in foreign-owned ships could operate.
Insurance costs for shipments lowered.
regulating colonial exports
From the perspective of the colonies, the most onerous regulations were
those that impaired trade with Europe. As mentioned, the Navigation Acts
required that certain enumerated items, including tobacco, rice, indigo,
and other goods, be exported directly to England to enable English merchants
to dominate the international marketing of the goods and thereby
to improve England’s balance of trade. London and Glasgow, for example,
became global centers for the marketing of tobacco and rice. The goods
subjected to this requirement were typically the most profitable items
produced in the colonies, the importation of which would not adversely
affect the English economy through competition with goods produced in
England.
This requirement increased prices for colonial goods in European markets
because of the additional costs of unloading and reloading in English ports.
It also gave English merchants a monopoly on factoring to Europe, further
reducing colonial returns by comparison to what might have been earned
had the colonists had been able to trade in European markets directly: more
than 80 percent of colonial enumerated goods brought to England and
Scotland were subsequently reexported to northern Europe.
suppressing colonial manufacturing
Colonial manufacturing ran contrary to the goal of increasing England’s balance
of trade because it both reduced colonial demand for English goods and,
in some cases, created competition with English manufactures. The Crown
and Parliament never enacted a blanket ban on colonial manufacturing; it
would have been unrealistic to do so, if only because colonists needed the
wherewithal to buy British goods. Nevertheless, they selectively sought
to suppress colonial competition in manufactures. For example, statutes
prohibited shipping among the continental colonies of raw wool, woolen
manufactures, and hats in order to increase the demand for English woolens
and English hats.3 The Crown also invalidated colonial statutes that sought
to promote local manufacturing. As an example, Pennsylvania in 1700
3 An Act to Prevent the Exportation of Wooll out of the kingdom of Ireland and
England . . . for the encouragement of the woollen manufactures in the Kingdom of
England, 10 and 11 William III, c. 10 (1699); An Act to Prevent the Exportation of
Hats out of any of his Majesty’s colonies or plantations in America . . . for the better
encouraging the making hats in Great Britain, 5 George II, c. 22 (1732).
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prohibited the export of ill-tanned leather (a basic material for making
shoes) in order to encourage local shoe-making. The Board of Trade required
that the legislature repeal the act, explaining that “[i]t cannot be expected
that encouragement should be given by law to the making any manufactures
in the plantations, it being against the advantage of England.”4
Parliament and the Crown also imposed high import duties on colonial
manufactured goods and reduced duties or subsidies on colonial raw materials.
For example, Parliament established a tiered structure of import duties for
sugar, which were lowest for raw, unrefined sugar and prohibitively high
for refined sugar. The tariff structure was effective. Little sugar refining
developed in the English West Indies. By comparison, the French had
no such structure of duties, and sugar refining became an integral part
of the French Caribbean economy. Parliament did prohibit colonial steel
manufacturing, but encouraged the production and export of raw materials,
such as pig and bar iron, by exempting them from normal import duties.5
Initially, the colonies’ comparative economic advantage was in extractive
industries, such as fishing, lumbering, and fur trapping, and in the agricultural
production of tobacco, rice, and food products. The suppression of
manufacturing, therefore, likely had little impact during the early stages
of colonial development. As the colonial economy expanded, however, it
became clear that these English policies would eventually impair colonial
economic interests. More broadly, imperial policies designed to improve
England’s balance of trade and to benefit England’s economy were strong
symbols of colonial dependence.
regulations helpful to colonial economic growth
Not every commercial regulation discriminated against the colonies. The
Navigation Acts allowed an entirely free trade between colonial merchants
and merchants of foreign countries in all commodities that had not been
enumerated for exclusive export to England, so long as the goods were
carried in British ships. Free trade was permitted in many important colonial
goods, including grain of all varieties, lumber, salt, fish, sugar, and
rum. These commodities could be transported directly to cities in Holland,
France, Portugal, Spain, and Africa and to any of the European colonies in
the Caribbean.6
4 Objections made by the Commissioners for Trade and Plantations upon Several Acts of
Pennsylvania (Endorsed August 3, 1705), The Statutes at Large of Pennsylvania from 1682
to 1801 (PA, 1896), 466.
5 An Act to Encourage the Importation of Pig and Bar Iron from his Majesty’s Colonies in
America [and to prevent the erection of iron mills, forges and steel-making furnaces in
the colonies], 23 George II, c. 29 (1750).
6A 1766 Act prohibited the direct export of any colonial good north of Cape Finisterre,
on the west coast of Spain.
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Why did the Crown permit any colonial free trade? First, protecting
industries in England often did not require a complete ban on colonial trade.
Wheat, for example, was an important colonial product that was barred
from importation to England in order to protect English wheat producers.
English wheat growers, however, exported chiefly to Europe. Thus they were
not harmed by allowing Philadelphia merchants to sell wheat in French
Caribbean colonies. Second, as mentioned, it was not in the interest of
England to suppress entirely the colonial economy. Colonial merchants
depended on exports to secure the specie necessary to pay for the vast quantities
of manufactured items imported from England. Allowing colonists
to make profits on goods not desired in England led to stronger demand for
English imports.7
Under the Navigation Acts, just as all colonial goods had to be unloaded
and reloaded in England, all European goods were required to be unloaded
and reloaded at an English port prior to reexport to the colonies. The price of
European goods in the colonies reflected the additional transportation costs
as well as the import duties paid in English ports.8 The British, however,
reduced the magnitude of import duties by allowing “drawbacks” (typically
refunds of 50 percent to 100 percent of the import duties) on foreign goods
reexported to the colonies. At times, the drawback provisions were criticized
for providing inadequate protection to English manufacturing concerns by,
for example, allowing German linens to fully supply the colonial market at
the expense of the nascent English linen industry. Indeed, in a few cases,
Parliament approved export subsidies that made English-produced goods
less expensive in the colonies than in England.9 These laws are inconsistent
with mercantilist theory and likely reflected advantages merchants held over
manufacturing interests in influencing government policy with respect to
particular products.
monopolizing the supply of colonial credit
The Navigation Acts led to an English and Scottish monopoly over the
supply of credit to the colonies. Colonists were not prohibited by law from
7 This might explain Parliamentary legislation giving colonial tobacco a de facto monopoly
in England: Parliament adopted prohibitively high tariffs on Spanish and other foreign
tobacco and banned growing tobacco in England, Scotland, and Ireland. By stimulating
colonial production of tobacco and by banning its growth in England, Parliament
directed native Englishmen toward specialization in economic activities that would lead
to greater profits abroad, such as manufacturing, while simultaneously expanding colonial
specialization in agricultural production.
8 The colonies purchased 75 percent of their imports from England, of which 20 percent
were goods originally manufactured in Europe or Asia.
9 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, 2 vols. Edwin
Cannan, ed., II: 96–97.
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obtaining credit outside Britain. But by monopolizing shipping, by prohibiting
non-British subjects from acting as factors or merchants in the
colonies, and by requiring that European goods be imported into an English
port before reexport to the colonies, the Navigation Acts made it extremely
difficult for colonists to obtain credit from European sources, either directly
or through a middleman. Colonists from all regions were steady consumers
of imported manufactured goods and were therefore perpetually in debt to
English or Scottish creditors.
The central problem of the trans-Atlantic trade was the distance between
England and the colonies and the informational problems that attended
credit relationships. It was very difficult for merchants residing in London
to be familiar with market conditions in America or the creditworthiness
of colonial debtors. One solution to the problems of distance and lack of
information was that transactions were structured whenever possible so
that risks relating to legal enforcement were contained within England.
Bills of exchange payable in London served as the basic currency in all large
commercial transactions within the Atlantic trade. The ultimate liability for
the bills therefore resided with an individual who had an account in London.
To obtain major loans, colonists were often required to find guarantors
in London. London-based insurance companies were preferred to such an
extent that the colonial insurance industry never developed beyond small
operations in the major cities. Moreover, financing within the empire took
the form of short-term commercial credit, rather than long-term repayment
arrangements backed by colonial property, such as by means of mortgages.
Trading with colonial producers, of course, also involved operations
within the colonies. English credit typically originated with an English
export firm that financed the costs of transporting goods to the colonies.10
To handle sales in the colonies, English merchants typically hired factors
who resided semi-permanently in the colonies. Once English goods arrived
in the colonies, factors typically sold to planters (in slave colonies) or, in
the Northern colonies, to retailers or storekeepers who, in turn, sold the
goods directly to consumers.11 To reduce the agency problem inherent
in the merchant-factor relationship, merchants often hired family members
or acquaintances or worked through factorage firms, which typically
charged higher rates, but had better established connections and more to
lose through a diminished reputation.
10 The credit terms from England were generally twelve months. In order to pay their
English debts on time, goods were offered locally on shorter credit terms; customarily
the terms of credit ranged from six to twelve months, and possibly less.
11 Factors typically earned a small percentage (such as 2.5 to 5 percent) of the gross sales of
the goods. Factors remitted the proceeds of the sale (gross sales minus the commission,
duties, and other expenses) either by purchasing bills of exchange or by providing a
return cargo.
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The primary responsibility of factors was to develop information and
contacts and to seek out the highest prices for the goods they sold on the
merchants’ behalf. The “price” they received, of course, also included consideration
of the terms of credit and the creditworthiness of the purchasers.
To be competitive, factors often remitted payments to the British merchants
immediately, in advance of actually collecting debts from those to whom
they sold goods. The factors assumed the role of creditors on the ground,
who could navigate the informal and formal means available to collect debts.
the role of the common law courts in
trans-atlantic relations
Every colony in the British Atlantic Empire established common law courts.
The enforcement of debt agreements dominated the business of the courts.
The existence of formal institutions that enforced contracts strictly was
of tremendous importance to the economic development of the colonies.
The structure of credit transactions between the English and their colonial
counterparts, however, reveals a strong aversion to the formal legal system.
Family relationships, personal acquaintances, and the spread of information
about an individual’s reputation and honor were its centerpieces.
For British creditors, finding recourse in the colonial courts was close
to a last resort.12 Not only were colonial courts highly inconvenient for
English creditors and costly, but colonial juries were biased in favor of local
residents. The common law courts met only four times each year and were
often criticized for their excessive delays. Fees were imposed to compensate
officials for every aspect of the paperwork involved, reducing creditors’
incentives to litigate. Filing a lawsuit, however, was the only way a creditor
might establish priority in claims on a debtor’s assets. In times of
general economic recession or uncertainty, litigation volume skyrocketed
as creditors scrambled to get a place in line. As an example, 800 cases
were reported to be pending in the Barbados Court of Common Pleas in
1699.
In response to the problems posed by the common law courts, merchants
in some colonies developed legal institutions that gave quick decisions in
convenient locations. The Mayor’s Court in New York and the Hustings
Court in Virginia, for example, were common law courts that specialized in
12 The vast majority of credit arrangements involved unsecured book credit. Obtaining
secured credit was typically a second step, after a debtor had failed to pay his debts, and
usually after many extensions in time. The process of debt collection began with written
requests for payment of the unsecured credit. After a failure to pay, a creditor would
request a debt on a penalty bond or specialty (a signed and sealed credit instrument).
The next step was a debt established by a judgment in court. As a final step, the creditor
would require a mortgage.
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Law and Commerce, 1580–1815 413
merchant-related disputes and that relied on merchant-friendly juries. One
merchant wrote that, in the Hustings Court, “[s]uits have seldom remained
undetermined longer than 3 or 4 months . . . when they have remained
undetermined almost as many Years in most of the other Courts.”13 In New
York until 1801, special merchant juries were the norm in commercial
matters.
Arbitration was also a common way to avoid the costs and delays of
jury trials in the colonial period. Business contracts, such as insurance
contracts, often included arbitration clauses. In the absence of an arbitration
clause, the parties might also agree to arbitration by reference, in which the
judge referred the matter to a panel of arbitrators. The New York Chamber
of Commerce was created in 1768 and almost immediately appointed a
Monthly Committee to arbitrate disputes brought before it.
British creditors complained about debt collection in colonial courts,
but courts in the British colonies had a reputation for greater formality and
even-handedness than courts in other colonies. Although those entering
commercial dealings naturally tried to avoid litigation in order to settle
disputes, the presence of a legal system that would strictly enforce debts
if necessary was an essential feature of the economy of colonial British
America. Adam Smith compared British colonial courts favorably with
those of the Spanish and Portuguese colonies where “irregular and partial
administration of justice, [ . . . ] often protects the rich and powerful debtor
from the pursuit of his injured creditor.” Indeed, Smith continued, these
justice systems “make the industrious part of the nation afraid to prepare
goods for the consumption of those haughty and great men, to whom they
dare not to refuse to sell upon credit, and from whom they are altogether
uncertain of repayment.”14
The greater formality of English law may explain some of the differentiated
growth of the American slave systems. Slaves were a highly costly
investment, and creditors would only lend money for slaves when they
believed the legal system would enforce debt agreements. Barbados could
become the largest sugar export market in the Americas in part because
13 John Tazewell to John Norton, July 12, 1770, John Norton & Sons Papers (Colonial
Williamsburg). In 1736, the Virginia legislature enacted a law that allowed any debt case
within the colony to be brought in the Hustings Court inWilliamsburg. An Act . . . for
Enlarging the Jurisdiction of the Court of Hustings in the City ofWilliamsburg, Statutes
at Large, William Waller Hening, ed. (Richmond, VA, 1814), IV: 541–42, 542.
14 Smith, Wealth of Nations, II: 125. In listing the reasons why English colonies flourished
economically,AdamSmith emphasized “above all that equal and impartial administration
of justice which renders the rights of the meanest British subject respectable to the
greatest, and which, by securing to every man the fruits of his own industry, gives the
greatest and most effectual encouragement to every sort of industry.”
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414 Claire Priest
strict enforcement of debt agreements encouraged British merchants to
lend money to Barbados planters to buy slaves. In contrast, the Portuguese
permitted more extensive debt relief legislation that dissuaded investment
in large quantities of slaves. Sugar planting in Brazil remained dispersed
and relatively inefficient throughout the colonial period. Slavery, of course,
is only one example of economic investment in the colonies promoted by
the enforcement of the common law.
enforcing the navigation acts: the vice-admiralty courts
Without effective enforcement, the Navigation Acts would have had significance
in letter only. Overseeing colonial trade from the vantage point
of England presented innumerable problems. The amount of shoreline to
monitor was immense. The financial incentives to evade the Navigation
Acts were high.
The Navigation Act of 1673 authorized the formal organization of a colonial
customs service. It appointed collectors and surveyors to those colonies
that produced enumerated commodities and required local collection of
all duties payable in London. Ship owners were required to execute bonds
guaranteeing that enumerated commodities would be transported to England.
The bonds became the basis for enforcement suits in the local courts
if violations were later discovered. The salaries of customs officials were set
as a percentage of total revenue collected (from one-eighth in the lucrative
colony of Virginia, to one-half in the Carolinas).15
The colonists were hostile to the 1673 Navigation Act. Within a few
decades, three collectors were killed, two imprisoned, and one tried for
treason. Prosecuting Navigation Act cases in the provincial courts was, in
a typical depiction, “trying one Illicit Trader by his Fellows, or at least by
his well-wishers,” and routinely resulted in an acquittal. The direct trade
between the British colonies and Europe (in British ships) flourished.
As a remedy, Parliament enacted the Navigation Act of 1696, which
created a separate court system, the vice-admiralty courts, to enforce the
Navigation Acts. The Act of 1696 authorized customs officers to exercise
general search warrants, known as writs of assistance, and permitted the
right of forceful entry in cases of suspected concealment of illegally imported
goods. It authorized seizure of the vessels used in violating the act, with
one-third of the proceeds distributed to the King, one-third to the governor,
and one-third to the informer.16
15 An Act . . . for the Better Securing the Plantation-trade, 25 Charles II, c. 7 (1673).
16 An Act for Preventing Frauds, and Regulating Abuses in the Plantation Trade, 7 & 8
William III, c. 22 (1696).
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Law and Commerce, 1580–1815 415
Prosecuting Navigation Acts cases in the vice-admiralty courts was
immediately controversial. In England, Navigation Acts cases were prosecuted
in the Court of Exchequer, which provided a jury trial. The lack of
juries in the vice-admiralty courts was viewed as a violation of England’s
customary constitution or fundamental law, and the convictions and fines
they imposed were widely viewed as illegitimate. Until the 1760s, however,
colonial merchants had a variety of means at their disposal to stymie
prosecutions in the vice-admiralty courts. The merchant community pressured
colonial governors to appoint as judges people friendly to them who
would overlook Navigation Act violations. (Colonial governors’ salaries
were paid out of colonial treasuries, which gave colonial legislatures some
power over them.) Merchants often illicitly recaptured property that had
been seized as evidence. Merchants also harassed customs officials by suing
them in their individual capacities. Another popular device was to have
a sympathetic common law judge issue a “writ of prohibition,” which
removed the case to the common law court for a decision as to whether
the vice-admiralty court properly had jurisdiction over the matter. If the
common law judged decided that the vice-admiralty court lacked jurisdiction,
the judge could hold the customs official in contempt of court. Until
the 1760s, colonists and customs officials existed in a hostile but viable
relationship.
The vice-admiralty courts, however, were also the forum of choice for
the resolution of disputes relating to maritime issues in general. The courts
offered summary procedures and resolved cases far more quickly than the
county courts, in part because they had no juries and in part because they
were open all year, as opposed to the common pleas courts, which met on a
quarterly basis. About 50 percent of the business of the vice-admiralty courts
was enforcement of the Navigation Acts. The remainder was admiralty cases
relating to seamen’s wages, salvage, prize, bottomry (a form of mortgage for
ships), partnership disputes, and disputes relating to building and insuring
vessels.
adam smith’s critique
One of the principal contributions of Smith’s Wealth of Nations was to
describe the seemingly ad hoc regulations governing trade within the
British Empire as the embodiment of a system of political economy that,
while coherent in itself, rested on flawed assumptions and empirical beliefs.
Smith explained that European governments’ bullionist emphasis on specie
flows misunderstood the deeper basis of economic growth. The wealth of
a nation derived from the value of the goods and services that the nation
produced, not from the amount of specie circulating within its borders.
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416 Claire Priest
The effort by a government to micro-manage trade in order to improve its
balance of trade did not enhance basic productivity and often diminished
it. Government trade regulations distorted incentives by inflating profits
in particular areas and thereby diverting investment into them, which
would generate decreased investment in activities or products that provided
greater economic return.
Smith’s criticism of what he referred to as Britain’s “mercantile system”
focused on its negative effects on the English, not the colonial, economy.
In Smith’s account, the primary beneficiaries of the Navigation Acts were
English merchants, whom he believed controlled British policy, and colonial
subjects. The enumeration of goods – which constrained their export
directly to England or Scotland – increased profits for English and Scottish
merchants dealing in those goods and led to excessive investment in their
production.
As a consequence of these policies, the English citizenry not involved in
the colonial trade suffered net losses. Smith argued that the British domestic
economy would have been more prosperous had less of the national
wealth been invested in the colonies.17 Moreover, the Navigation Act system
required continued military expenses for colonial defense. According
to Smith, the colonists were free riders benefiting from English military
protection and not contributing their share.
Smith advocated a world free of mercantile regulations. In such a world,
the colonies were likely to play a large role. He believed that exchanges
between British creditors and colonial producers greatly stimulated English
industry. Writing in 1776, however, Smith opposed fighting to retain the
American colonies. Smith believed that a better course would be to negotiate
a trade treaty with America so that trade relations would be maintained
without the costs of Empire.
Unlike Smith, the colonists began to emphasize the direct, tangible
costs that the Navigation Acts imposed on their economic activity. Until
the 1760s, however, colonial citizens were generally content with their
status within the empire. Colonial residents appreciated the advantages
of membership in the British Empire. The two principal counterfactual
alternatives – colonial sovereignty during the eighteenth century (holding
European foreign policy steady) or colonial dependency on another European
government – might each have been inferior in terms of economic
growth when compared to remaining a colony of Britain. Seventeenth- and
eighteenth-century English commercial regulation had dual effects: the
laws were designed to ensure that the English would receive the principal
financial benefits of trade within the empire, but the imperial system
17 Smith, Wealth of Nations, II: 109–44.
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Law and Commerce, 1580–1815 417
worked to the advantage of the colonies as well. The vice-admiralty courts,
which were established for the purpose of enforcing the Navigation Laws to
the detriment of individual colonists, greatly benefited colonial economies
by applying a consistent body of law to resolve disputes emerging on the
seas. The existence of a uniform law of bills and notes allowed payments
by bills of exchange anywhere in the empire. Finally, in very crude terms,
British bankers and merchants financed operations in the colonies because
the colonies shared a legal tradition of formalistic enforcement of contractual
obligations.
Residents of the colonies, however, viewed themselves as supporting the
English economy in four ways: by stimulating English industry through the
purchase of imports; by paying the interest costs of the goods they bought
on credit; by paying import duties when applicable; and, particularly in the
South, by suffering the English monopoly on goods like tobacco and rice.
The next section describes the colonial legislatures’ economic regulations
and the events leading to the American Revolution.
II. LAW AND COMMERCE IN COLONIAL AMERICA
A new political economy emerged in Founding Era America. It arose from
the federalist system designed by the framers of the U.S. Constitution
and was developed over years of contested political debate after the Constitution’s
ratification. The American federalist system, in turn, was the
product of institutional developments that took place during the colonial
period. For more than a century, the colonial governments behaved as
quasi-independent sovereign powers. They enacted their own laws regulating
commerce and relating to slave property, reformed English property
and inheritance laws, issued paper money and regulated their currencies,
and dealt with Native Americans.
Vast economic, social, and cultural differences divided the colonies. There
was little intercolonial trade, and the colonies’ closest economic ties were
with England and other foreign markets. An English clergyman visiting
America in 1759 was skeptical that the colonies could ever unite in a
“permanent union,” because “fire and water are not more heterogeneous than
the different colonies in North America.”18 The competitive character of
the colonies’ policies led many to fear, after independence, that the colonies
would replicate the cycle of trade competition and warfare that had plagued
Europe.
18 Andrew Burnaby, Travels Through the Middle Settlements in North-America in the Years 1759
and 1760 with Observations upon the State of the Colonies (Dublin, 1775), 202–4.
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The British Empire was governed in a highly decentralized manner in
comparison to, say, the Spanish Empire.19 Nonetheless, Parliament and
the Crown, through its advisory boards, the Privy Council and the Board of
Trade and Plantations,20 were strongly interested in monitoring the colonial
legislatures to protect the revenues afforded the Crown under the Navigation
Acts and the interests of English creditors. In each of the primary areas
of colonial policymaking, acts of Parliament or decisions by the Crownappointed
Board of Trade created resentment toward English rule decades
before the movement for independence. Beginning in the 1760s, however,
for the first time mutual hostility toward Parliamentary and Crown
oversight gave the colonists common grounds for seeking independence.
This history, of more than a century of relative colonial independence and
sovereignty, and the shared resentment toward Parliamentary regulation
exacerbated in the 1760s, is essential to understanding the rejection of mercantilism
and the creation of a new political economy in the Founding Era.
The Economic Policies of Colonial Legislatures
Each colony enacted an independent economic policy. Colonial legislatures
derived their lawmaking authority by charters issued by the Crown, by proprietary
grants to individuals under patent, or by direct rule of the Crown.
In all cases, they were constrained only by a proviso or an understanding
that the laws they adopted “would not be repugnant to” the laws of England
and by a broader imperial understanding that their laws must not conflict
with the interests of England, which usually meant the interests of English
creditors and merchants.
colonial commercial policies
As described above, commercial regulations were a primary instrument of
mercantilist governments. In this tradition, every colonial legislature collected
revenue through duties as part of a broader trade policy. The colonial
legislatures, however, were subject to two substantial constraints. First, tariff
policies (duties on specified imported goods) and tonnage duties (duties
on vessels unloading at a port based on cargo capacity) were constantly
monitored by English merchants selling wares locally. The merchants complained
to the Board of Trade about colonial legislation that taxed them
or diminished their trade. The Board of Trade often invalidated colonial
duties that treated local merchants more favorably than English merchants.
19 See Chapter 4, this volume.
20 The Board of Trade and Plantations was established in 1696 to supervise the colonies
and to advise Parliament on matters relating to colonial economic regulation.
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Asecond, and equally powerful, constraint was intercolonial competition.
The major ports were in constant competition with one another for trade.
Colonists wanted to encourage trade in order to expand the market for
their exports and to increase the products available for internal purchase
and consumption. Non-competitive duty taxation drove imports to other
ports.
Typically, colonial legislatures confined import duties to three luxury
items: wine, hard liquor, and slaves. Colonial tonnage duties typically did
not increase general revenues: they were earmarked for port-related projects,
such as the construction of lighthouses, digging channels, and the maintenance
of wharves. The import and tonnage duties were often reduced for
merchants who resided locally.
On some occasions, colonial legislatures imposed special, retaliatory tariffs
on goods produced in other colonies. As an example, in the early eighteenth
century, New York and Maryland enacted a special tax on goods from
Pennsylvania. Pennsylvania then retaliated with a 10 percent tax on products
imported from New York and Maryland. Retaliatory tariffs were often
imposed in relation to some other dispute between the colonies, such as a
boundary dispute. Again, intercolonial competition for trade constrained
the extent to which colonial legislatures generated revenues through tariffs.
The two constraints on colonial trade regulations – English oversight
and intercolonial competition – led to an emphasis on legislative efforts to
promote locally produced goods in foreign markets. Most prominent among
these efforts was the establishment of mandatory inspection systems, based
on the belief that minimum quality standards for exported goods were essential
to a colony’s competitiveness. The export of inferior goods was believed
to taint the reputation of the colony as a whole. The laws authorizing inspection
also required that all export goods bear the mark of a registered brand
and established standardized quantity and weight regulations.
Pennsylvania, for example, required inspection of bread and flour; beef
and pork; lumber items such as “staves, headings, boards, planks and
shingles”; and shad and herring. The inspectors were given the power
to condemn items not meeting the standards they adopted. Pennsylvania’s
regulation led New York merchants to lobby in the 1750s for higher
local standards, explaining that the French and Spanish islands “absolutely”
refused to purchase flour from the colony of New York “if any Pennsylvania
Flour could be had. . . . ”21
Other colonies adopted inspection systems to establish commodity
money. Because English merchants typically demanded payment in specie,
21 Petition of Merchants to New York Assembly, Oct. 26, 1750, Journal of the General
Assembly of New York (New York, 1764–1768), II, 294–295.
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420 Claire Priest
gold and silver coins were often scarce in the colonies as a currency and as a
taxation base. As a consequence, many colonies denominated commodities
to serve as a currency, especially for purposes of taxation. New England,
at various times, designated farm products, typically called “country pay,”
as commodity money. In 1720, for example, Massachusetts responded to a
currency shortage by allowing taxes to be paid (at rates set by the General
Assembly) in “good Barrel-Beef or Pork, Or in Wheat, Pease, Barley, Rye,
Indian Corn, Oats, Flax, Hemp, Beeswax, Butter in Ferkins, Cheese, Hides,
Tann’d Leather, Dry Fish, Mackrel in Barrels, Oyl, Whale-bone, Bayberry
Wax, or Tallow.”22 The system had an inherent problem: the incentive of
the taxpayer was to pass off the worst quality goods to the collectors.
In the 1730s,Virginia adopted a sophisticated inspection system to establish
a form of tobacco currency. Individuals brought their tobacco to a local
warehouse. If the tobacco met the quality standard, the farmer would be
given “tobacco notes,” which could be used to pay taxes or used as a currency.
Virginia did not adopt a paper money with legal tender status outside
of the tobacco note system until 1755.
The relative prominence of government inspectors and the support for
inspection and standardization are striking in a period in which government
bureaucracy was almost non-existent. The importance of inspection systems
in colonial economic life is reflected in the U.S. Constitution that, though
denying the states the power to “l(fā)ay any imposts or duties on imports
or exports,” permits states to impose duties when necessary for executing
inspection laws, again, important for certifying quality in markets with
very uneven information.23 Inspection systems are a revealing predecessor
to later state programs for economic promotion.
property regulation
Each colony enacted its own property and inheritance law. Colonial legislatures
established land registries to demarcate rights more clearly to
land than the existing system in England. Land was the principal form in
which wealth could be held, and mortgage markets were central to colonial
liquidity.
Legislative approaches to inheritance and real property were important
sources of social, economic and cultural difference. In general, land was
distributed far more widely among the colonial population than in England,
22 Resolve for Emitting £5,000 in Bills of Credit and Order for Rec’g the Tax in Several
Species of Goods ( July 22, 1720, ch. 28), reprinted in The Acts and Resolves Public and
Private of the Province of Massachusetts Bay (Boston, MA, 1902), X: 16.
23 U.S. Constitution, Art. 1, sec. 10, cl. 2.
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and the majority of colonial citizens held their land in fee simple absolute.
The widespread availability of land for purchase meant that children were
often less dependent on a family homestead and were more likely to obtain
their own land. The Northern colonies (with the exception of NewYork and
Rhode Island), however, eliminated primogeniture and moved to a system
whereby children divided their father’s property evenly at the time of his
death, though some provided a double share to the eldest son.
The New England colonies also eliminated traditional English immunities
on title to real property from the claims of unsecured creditors. English
law incorporated a default rule that protected property owners’ title to land
from the claims of all unsecured creditors. In England, unsecured creditors
enforcing their debts in the common law courts could claim only debtors’
chattel property and temporary possessory interests in part of debtors’ real
property. The law also extended this rule so that, at the death of a debtor,
the debtor’s real property holdings descended to the heirs and devisees free
of all claims of the deceased debtor’s unsecured creditors. The New England
legislatures (with the exception of Rhode Island) rejected this body of
English law and retained only negligible property exemptions from creditors’
claims. The Southern colonies, in contrast, maintained traditional
English laws related to real property and inheritance: They affirmed primogeniture
and the body of creditors’ remedies that made title to real property
immune from the claims of unsecured creditors.
In the early 1730s, however, English creditors began to aggressively lobby
Parliament for legislation that would provide more protection to English
creditors than was available under English law. They lobbied for a repeal
of all exemptions from the claims of unsecured creditors on real property.
Parliament, in 1732, enacted “An Act for the More Easy Recovery of Debts
in America,” which required that land and slaves be treated exactly like
chattel property for the purpose of satisfying both secured and unsecured
debts. The statute radically changed the law in Rhode Island, New York,
Maryland, and in all of the Southern colonies. It diverged from English law
by providing that, in all of the British colonies, unsecured creditors could
claim against the real property holdings of their debtors. Perhaps most
important, it modified the English inheritance laws by giving creditors
priority to land over heirs and devisees when debtors died. By clarifying
that all forms of property were subject to the claims of creditors, this statute
likely expanded the amount of credit extended in the colonies. It coincided
with the expansion of slavery by expanding the availability of loans to
colonial planters for slave purchases. It was also an important example
of Parliamentary interference with colonial domestic matters. Alexander
Hamilton later wrote that this act, “Admitted more then our Legislature
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422 Claire Priest
ought to have assented to; it was one of the Highest Acts of Legislature that
one Country could exercise over another.”24
currency policies
Each colony adopted independent monetary policies, and these policies often
reflected intercolonial competition. The colonial economy largely functioned
without the use of cash. Imports from England exceeded colonial
exports, and coins were generally required as balance-of-trade payments to
English creditors. Initially, various colonies competed for specie by enacting
legislation that overvalued Spanish pieces of eight and other foreign
coins (in relation to sterling), predicting that a favorable legal exchange
rate would attract traders to the colonies seeking to buy goods with cash.
As an example, in 1652, Massachusetts opened a mint that created “pinetree
shillings” out of the metal of coins from other nations. The colonial mint
offered a profit to individuals, including pirates, who brought in foreign
coins to be reminted.
Competitive colonial legislation that debased the local currency, however,
was viewed by the Crown as conflicting with the mercantilist ambition
of keeping coins in England and of maintaining currency stability in
the colonies. The Crown shut down the Massachusetts mint in 1684. In
1695, Parliament prohibited the export of English sterling to the colonies,
reflecting, again, the bullionist belief in the importance of keeping specie
within English boundaries. In 1708, Parliament attempted to suppress
colonial legislatures’ competitive use of monetary policy by requiring a
uniform exchange rate in the various currencies in relation to English sterling
throughout the North American colonies.25 This statute, however, was
difficult to enforce and had little impact.
Throughout the late seventeenth century, many colonists began lobbying
their legislatures for paper money. Colonists thought that paper money
would increase the ease of transacting and expand the supply of credit.
From the perspective of local government officials, collecting taxes payable
in paper money had obvious advantages over collecting taxes in commodity
monies like corn. The costs of war against the French created financial pressures
that led colonial legislatures to adopt paper money policies with the
tacit consent of Parliament. In 1690, Massachusetts issued the first paper
money in the colonies to pay soldiers returning from battle in Quebec. The
24 Alexander Hamilton, Practical Proceedings in the Supreme Court of the State of New York,
in Julius Goebel, Jr. ed., The Law Practice of Alexander Hamilton (New York, 1964), I:
55–166, 97 (emphasis added).
25 An Act for Ascertaining the Rates of Foreign Coins in Her Majesty’s Plantations in
America, 6 Anne, c. 30 (1708).
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Law and Commerce, 1580–1815 423
“bills of credit” in which they were paid would give the bearer a 5 percent
premium if used to pay taxes in 1691. The experiment was successful and
the government issued more bills of credit the next year. In subsequent
years, without protest from England, other colonies quickly adopted independent
paper money policies: South Carolina in 1703; Connecticut, New
Hampshire, New Jersey, and New York in 1709; Rhode Island in 1710;
and North Carolina in 1712.
Paper money often crossed colonial boundaries, and colonists were highly
aware of the monetary policies of neighboring colonies. Perhaps the most
egregious example of a colony trying to profit through its currency policies
was Rhode Island, which infamously flooded the New England market
with its notes from the mid-1730s through the mid-1760s. Currency policy,
however, was also a great source of tension with England. When England
faced periods of economic decline, English creditors shortened the terms
of colonial credit or called in their debts, creating corresponding credit
problems throughout the colonies. It was at these times that the pressure
for debt relief legislation, in the form of greater currency issues and
legal tender laws, was strongest. The volume of paper money in circulation
and the extent to which the paper money was “backed” by regular
taxation were highly political issues. During periods of economic recession,
colonists clamored for more paper money to resolve liquidity pressures,
and the policy decisions made by legislatures could exacerbate economic
problems.
An important currency dispute preceding the Revolutionary movement
occurred in Massachusetts. Upset by Massachusetts’ currency instability, the
Board of Trade in 1730 issued an Instruction to the Massachusetts governor
to substantially reduce the supply of paper money in the colony. The Instruction
was viewed by many Massachusetts residents as entirely unresponsive
to their economic predicament. To remedy the scarcity of money during a
recession starting in 1738, Massachusetts residents developed plans for a
Land Bank, which would issue notes backed by the real property holdings of
close to 400 private individuals. The bank was put into operation in 1740.
On March 27, 1741, Parliament suppressed the Land Bank by applying to
the colonies the Bubble Act – enacted in the wake of the South Sea bubble
– which banned joint-stock companies. John Adams later claimed that the
“act to destroy the Land Bank scheme raised a greater ferment in this province
than the Stamp Act did.”26
26 John Adams, “Novanglus: Or, A History of the Dispute with America, from Its Origin,
in 1754, to the Present Time,” in Charles Francis Adams ed., The Works of John Adams,
Second President of the United States, 10 vols. (Boston, 1851), IV: 3–177, 49 (emphasis
added).
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424 Claire Priest
The colonial monetary crisis throughout the 1740s culminated in the
Currency ,Act of 1751, which prohibited New England governments from
issuing bills of credit with legal tender status.27 Merchants in England
quickly began advocating extension of the paper money prohibition to the
Middle Atlantic and Southern colonies. They ultimately succeeded with
the enactment of the Currency Act of 1764.28 Received with great protest,
particularly by merchants in New York City and Philadelphia, the Currency
Act was one of the most unpopular and disruptive Parliamentary measures
of the immediate pre-Revolutionary period. It was eventually repealed in
1774.
regional variations in economic structure
The colonies lacked a sense of national unity, in part, because their economic
systems differed so greatly by region. These regional economic differences
played a central role in trade policy and were central to national politics
from the 1780s through the CivilWar.
The Southern continental colonies and theWest Indies conformed most
closely to the model of dependent staple crop producing colonies, dominated
by slave labor. The economies of Virginia and the Carolinas were highly
specialized in the production of tobacco and rice, and theWest Indies in the
production of sugar. The relationships between planters in these colonies and
their British and Scottish creditors were extremely close: English merchants
typically provided planters with financing both for the production of staple
crops and for imports of English goods sold to the planters in advance
of return shipments. The English merchants sold the crops in England
under a consignment system, satisfying the colonial planters’ debts with
the proceeds of the sales.
Southern merchants controlled only a small local fleet of ships. Moreover,
Southern planters did not fully control the internal marketing of
imported goods. In the early years “Scots peddlers” wandered the countryside
selling goods and purchasing tobacco directly from small farmers. The
“Glasgow system” was developed by the mid-eighteenth century, when
Scottish factors had set up chains of stores throughout the Chesapeake
that sold imported goods in return for payments of tobacco. This system
involved, first, sending traders throughout the Chesapeake region to deal
directly with small planters and farmers, and second, a willingness to accept
27 An Act to Regulate and Restrain Paper Bills of Credit in his Majesty’s Colonies, 24 Geo.
II, c. 53 (1751).
28 An Act to Prevent Paper Bills of Credit, hereafter to be Issued in Any of his Majesty’s
Colonies or Plantations in America, from Being Declared to be a Legal Tender, 4 Geo.
III, c. 34 (1764).
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low-quality tobacco. English merchants never replicated the Glasgow system.
They dealt with larger planters and dominated the market for higher
quality tobacco.
In contrast, the Northern colonies in many respects resembled European
mercantilist nations, although on a smaller scale. Their economies
were highly diverse. Northerners commanded a large fleet of ships and
invested in shipping and marketing their exports abroad. Northern merchants
were exporters, importers, wholesalers, retailers, purchasing agents,
bankers, insurance underwriters, and attorneys. In contrast to Southern
colonists who allowed their internal markets to be dominated by Scottish
importers, Northern colonists controlled the internal markets of their
colonies. Transactions with English merchants and factors relating to the
importation of goods typically took place in major port towns.
Prior to the 1760s, merchants in the Northern colonies were free to
market most of their goods anywhere in the world. They never managed to
produce a profitable staple crop desired by the English. As a consequence,
England imported only a portion of their exports. In the period 1768 to
1772, for example, only 17.8 percent of commodity exports from New
England and 22.8 percent of commodity exports from the mid-Atlantic
colonies were exported to England or Ireland. In contrast, during the same
period, 81.8 percent of the commodity exports of Virginia and Maryland
and 71.6 percent of the commodity exports from the Carolinas and Georgia
were exported directly to England or Ireland.
Their import markets, however, were dominated by goods from England.
To pay for the English imports, the merchants of New England and the
mid-Atlantic colonies exported foodstuffs, such as wheat, corn, and meat
products, to colonies and nations that had a favorable balance of trade
with England. The most important markets were in the West Indies and
Spain and Portugal. Sugar was so profitable that the six sugar islands –
Jamaica, St. Kitts, Barbados, Montserrat, Nevis, and Antigua – contributed
almost as much (more than 9 percent) to Britain’s external commerce as
the thirteen continental colonies combined (approximately 10 percent).
The Northern merchants sold their goods there in return for cash (bills of
exchange payable in London) or products, such as molasses, sugar, and wine,
which could be used to pay English creditors directly. The profitability of
the slave system of labor and sugar production in the West Indies and
wine production in the Iberian Peninsula meant that these areas had more
liquid markets (greater available currency) than New England and the Mid-
Atlantic. Thus the British Empire of the eighteenth century consisted of
dispersed constituencies, integrated loosely by a shared cultural and legal
tradition, by market relationships, and by the relatively weak superstructure
of Parliamentary and Crown rule.
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426 Claire Priest
III. PARLIAMENTARY REGULATION AND THE
AMERICAN REVOLUTION
By the time of the American Revolution, the colonies were separated by
a history of intercolonial rivalry, independent trade regulations, property
laws, currency policies, and vastly different economic structures. Why did
the colonies join together to rebel against British rule?
At the conclusion of the SevenYearsWar, a consensus emerged in England
that the colonies should increase their financial contributions to the expenses
of the British Empire. In 1763, the British debt was massive. The costs of
the Seven Years War had doubled its size. Annual interest owed by the
government was £5 million alone; the ordinary British peacetime budget
was £8 million. Most of the war had been fought in the New World, and
the colonists were its central beneficiaries. Vast new territories (Canada
and Florida) had been acquired from France and Spain. As English settlers
moved west, the British feared large-scale conflicts between settlers and
Native Americans that would require costly military involvement. The
decision was made to maintain a standing army in America for deterrence,
even though it would be highly expensive to feed, clothe, and pay. George
Grenville, the new Chancellor of the Exchequer, reported that the customs
service in America was costing more than it was collecting in revenue. In the
years that followed, Parliament passed several statutes that fundamentally
changed the nature of imperial regulation of the colonies.
In 1763, Parliament passed a statute that gave captains and officers of
the Royal Navy stationed in North America the power to be sworn in as
customs officers who could prosecute Navigation Acts violations including
seizing offending vessels (earning, as a commission, one-half of the net
proceeds after condemnation and sale of the goods and the ship).29 The act
also adopted a “hovering” provision, allowing the seizure of vessels that
carried illegal goods offshore, even if they showed no inclination to enter
the ports. Enforcement of the British monopoly by a fleet of naval officers
prowling the seas was a shocking development to colonial merchants up
and down the Atlantic seaboard.
In 1764, Parliament enacted the Revenue Act, which came to be called
the “Sugar Act.”30 The act reduced the duty on foreign molasses from six
to three pence per gallon in an attempt to generate greater revenue through
29 An Act for the Further Improvement of his Majesty’s Revenue of Customs, 3 George III,
c. 22 (1763).
30 An Act for Granting Certain Duties in the British Colonies . . . in America . . . and More
Effectually Preventing the Clandestine Conveyance of Goods to and from the said Colonies
and Plantations, and Improving and Securing the Trade Between the Same and Great
Britain, 4 George III, c. 15 (1764).
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fuller compliance. More controversially, however, the act shifted the burden
of proof in Navigation Act trials to the accused (the claimant of the seized
property). It gave informers and prosecutors immunity from liability so
long as they could convince the admiralty judge that probable cause had
existed for a seizure. This took away the primary weapon in the merchants’
legal arsenal against the enforcement of Navigation Acts: harassment of
officials through litigation.
The 1764 Sugar Act also imposed onerous regulations on ships involved
in the coastwise trade that had previously applied only to ships crossing
the Atlantic. All vessels traveling more than seven miles from shore were
required to present bonds and acquire loading certificates before taking
cargo on board their ship. They were also required to carry official inventories
listing each item in their cargo (called cockets), certified by a customs
official. Each addition to the inventory of a ship required an additional
visit to a customs official and more fees. The likelihood of having one’s
ship searched had increased dramatically after 1763, and owners of smaller
vessels in the coastwise trade, in particular, resented the new paperwork and
costs. The assemblies of eight colonies sent petitions to English authorities
claiming that the Sugar Act was harmful to colonial trade.
The next year, in 1765, Parliament went further, enacting the Stamp
Act, which required that most formal legal documents be drafted on special
stamped paper printed in a central stamp office in London and sold by the
colonial governments locally. As Franklin later testified before Parliament,
this law was particularly threatening because it was a direct tax on internal
colonial legal affairs and therefore was far more invasive than customs duties,
which allowed the colonies autonomy over internal governance. Moreover,
Stamp Act violations were to be prosecuted in the vice-admiralty courts,
where colonists would not have the shield of a jury trial.
The colonists responded to the Stamp Act with a widespread, voluntary
movement to cease importing English goods in the winter of 1765
and 1766. The non-importation movement of 1765 and 1766 was the first
coordinated intercolonial effort. The boycott of British goods in 1765 and
more extensive boycotts in 1767 and 1774 represent the beginnings of a
“national” American political identity. This identity was closely connected
to the status of colonists as consumers of English exports. Under the Navigation
Acts system, the colonists viewed themselves as contributing to
the empire in multiple ways. They contributed to the profits of English
manufacturers and producers by consuming English goods. They paid the
interest costs of purchasing on credit both directly and in the price of
goods. The economies of many colonies were dominated by the production
of goods that were legally required to be shipped to England. Moreover,
the colonists contributed to the English shipping business by complying
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428 Claire Priest
with the monopoly given to English ship owners and sailors. Given these
many contributions, to protest the Stamp Act by refusing to buy English
goods perfectly reflected the colonists’ central concerns. That protest prevented
the English from profiting from colonial purchases, colonial credit,
and tariffs all at once.
Again, the world of the late eighteenth century was one in which a “mercantilist”
mentality toward economic activity prevailed. It viewed merchants
who “owned” the trade as skimming the profits off of those with
whom they traded. Money spent on English consumer goods represented
payments of specie to English merchants and producers that increased the
wealth circulating in England at the expense of the specie-poor colonies.
Taxes imposed by Parliament for revenue purposes threatened to draw even
more wealth away from the colonies. As described by the New York Assembly
in 1764, “all Impositions, whether they be internal Taxes, or Duties
paid, for what we consume, equally diminish the Estates upon which they
are charged. . . . The whole Wealth of a Country may be as effectually drawn off,
by the Exaction of Duties, as by any other Tax upon their Estates.” The
scarcity of specie in the colonies reinforced the bullionist view of trade. The
sense of England skimming the wealth from the colonies was exacerbated
by the Currency Act of 1764, which, as mentioned, prohibited all colonial
governments from issuing legal tender paper currencies.
In his efforts to obtain the repeal of the Stamp Act, Benjamin Franklin
proposed that Parliament instead generate revenue in the Americas by
establishing a profit-seeking central bank that issued currency. After the
Revolution, Franklin was challenged about his proposal, and he conceded
that this central bank would have led to Parliamentary interference with
the colonial economy to a degree that was undesirable. But his proposal
when initially presented was on the mark. The Americans would likely
have endured government action that was viewed as promoting economic
exchange and lowering the cost of credit. Instead, the Sugar Act of 1764
and the Stamp Act of 1765 constituted taxes that depleted the colonies’
monetary wealth. Revulsion to a revenue-generating statute from a formerly
loyal population is understandable if one recognizes that colonial citizens
viewed themselves as having their wealth drained from them as consumers
and debtors in a monopolized market.
The Stamp Act was repealed in February of 1767, but the colonists’
victory was overturned by Parliament’s enactment of the Declaratory Act,
which stated in general terms that Parliament had the right to legislate for
the colonies “in all cases whatsoever.” With the thought that perhaps the
Stamp Act was offensive because it was a direct tax – which Franklin had
argued – Parliament in 1767 enacted the Townshend Act, which sought
to obtain tax revenues through duties on imported goods, such as tea,
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lead, glass, paint, and paper. To ensure adequate revenue, Parliament again
increased local supervision of customs collection. In 1767–8, Parliament
created the American Board of Customs, which reported directly to the
Treasury. Superior vice-admiralty courts, to which appeals from the lower
vice-admiralty courts could be made, were established in Boston, Philadelphia,
and Charleston. Salaries of new customs officials as well as of other
Crown appointees, such as the colonial governors, would come from the
revenues they collected, relieving them of their longstanding dependence
on colonial legislatures.
The Townshend Acts represent, not a response to colonial demands,
but an attempt to reinforce Crown authority and clamp down on colonial
resistance. They were eventually repealed, but the tensions between customs
officials and colonial residents escalated. The colonists increasingly resented
the enforcement of the Navigation Acts in the vice-admiralty courts, which
they viewed as a violation of their constitutional right to a trial by jury.
John Adams’s representation of John Hancock, in a trial involving the
question of whether he smuggled Madeira wine off his boat late at night to
avoid customs duties, became a multi-month publicity event focused on the
injustices of the vice-admiralty courts. Adams stated that the system “takes
from Mr. Hancock this precious Tryal [by jury], and gives it to a single
Judge. However respectable the Judge may be, it is however an Hardship
and severity, which distinguishes my Clyent from the rest of Englishmen.”31
Collective resentment toward English transgressions brought the
colonies together to fight for independence. But what type of national
government would they support after the goal of independence had been
achieved? The colonial legislatures were accustomed to having authority
over their economic, monetary, and commercial policies and were often
rivals and competitors. The U.S. Constitution, however, limited state power
in relation to foreign commerce.
Uneasy compromises would characterize American federalism in its early
years. The political system that emerged prevented both the states and
the federal government from pursuing an aggressive foreign policy on the
British model. The new American political economy, fully implemented
under Jefferson and Madison, linked westward expansion and the spread
of agriculture to diminishing federal government debt and lowering taxes,
and consisted of a tariff policy constrained by fierce inter-regional tensions.
The legacy of the colonial (and then state) sovereignty model and the
political hostility to a strong federal government shaped American foreign
31 “John Adams’s Copy of the Information and Draft of His Argument, Jonathan Sewal v.
John Hancock (Oct. 1768 – March 1769),” in L. Kinvin Wroth and Hiller B. Zobel, eds.
Legal Papers of John Adams, 3 vols. (1965): 2: 194–210, 202.
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policy – and prevented mercantilism and the acquisition of foreign
colonies – for much of the nineteenth century.
IV. THE POLITICAL ECONOMY OF THE FOUNDING ERA
The Navigation Act system came to an end in 1775, when Parliament prohibited
entirely British trade with the American colonies.32 The American
patriots viewed this as a liberation. The 1770s were a time of extreme optimism
about America’s economic future. On April 4, 1776, the Continental
Congress opened American ports to the traders of all foreign nationalities,
except the subjects of Great Britain. This was the first time that American
ports had been fully open to non-British ships in more than a century. John
Adams optimistically wrote, “Foreign nations, all the world I hope, will be
invited to come here, and our people permitted to go to all the world. . . . ”33
Independence and Free Trade
Leaders like John Adams and Benjamin Franklin were committed to an open
trade policy because they believed that the colonies would benefit most from
low tariffs and a position of neutrality with respect to European powers. The
primary models for the Americans were the Dutch, neutral, free-trade ports
in theWest Indies that had enjoyed instant success as international markets
during the European wars. Many believed that low tariffs and neutrality
would, similarly, stimulate American markets and allow a global trade to
develop in the void left by the English.
The colonial legacy of specialization toward agricultural exports and
dependence on imported manufactured items was viewed as an advantage
in the effort to expand trade relations abroad. It was believed that Europeans
would place high value on having close commercial relations with a country
that actively sought the importation of manufactured goods. Indeed,
America was offering more developed countries some of the benefits of
colonialism without the costs of governance and military protection. As
Thomas Paine stated in Common Sense, “It is in the interest of all Europe to
have America as a free port.” In 1776, a committee of Congress led by John
Adams drafted a Model Treaty that was intended to be used as a platform to
negotiate trade treaties with various foreign governments. Under the Model
Treaty, Americans would impose no duties on foreign merchants trading in
32 An Act to Prohibit all Trade and Intercourse with the Colonies [in America], 16 Geo.
III, c. 5 (1775).
33 John Adams to JamesWarren (March 21, 1776), in Letters of Delegates to Congress, Vol. 3:
422.
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American ports beyond those imposed on American merchants trading in
American ports, and Americans would enjoy the same advantages in foreign
ports.
The legacy of colonial sovereignty, however, became a barrier to the
adoption of a “national” foreign policy. In 1781, the colonies – now states –
ratified the Articles of Confederation, which was the first formal union of the
states as the United States of America. Under the Articles of Confederation,
state governments were responsible for collecting all revenue. The federal
government had no power to tax and was compelled to rely for funds on
requisitions from the states. State governments were responsible for regulating
trade and collecting revenue through independent state tariffs. State
governments, as well as the Congress, had the power to issue currency.
The Articles gave Congress the exclusive power to negotiate with foreign
nations and Native American tribes. Congress, however, had no effective
means of coercing the states to adhere to its treaties and policies.
During the 1780s, Americans experienced a foreign affairs crisis that
revealed the weaknesses of the state sovereignty model of finance and trade
regulation. Lord Sheffield in England pinpointed these weaknesses in a
pamphlet entitled Observations on the Commerce of the United States. Sheffield
advocated severe punitive measures against the former colonies, to which, he
predicted, they would be unable to respond. The pamphlet influenced public
opinion, and in 1783, the British enacted a decree prohibiting Americans
from accessing the West Indies. The ban on trade to the West Indies –
the Americans’ primary export market – to which the Americans, lacking a
uniform trade policy and a navy, could not respond, had a devastating impact
on American agriculture. In addition, the Spanish held the southern parts of
the Mississippi River and, in 1784, forbade access to Americans in order to
limit settlements in Kentucky and Tennessee. The Mississippi was a crucial
means by which western farmers exported their agricultural products.
With British exclusion of American ships from the West Indies and
the closure of the Mississippi, many merchants hoped to expand trade in
the Mediterranean. They were prevented from doing so by the Barbary
pirates. Prior to the RevolutionaryWar, American ships had been protected
from the pirates by annual British tribute payments to the North African
governments. In October of 1783, however, the American ship Betsey was
seized by Moroccan pirates. In 1785, three more ships were captured, and
many of the crewmen were enslaved. Americans at the time were horrified
by the idea of white, Christian crews being sold into slavery to Muslims.
Various political leaders, including John Adams, Benjamin Franklin, and
Thomas Jefferson, negotiated with three of the four leaders of the pirates
(from Algiers, Tunis, and Tripoli), but could not raise the money needed to
reach an agreement. Algiers declared war on the United States in 1785. In
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1790, Jefferson concluded that, because of the “unprovoked war of Algiers,”
American trade “into the Mediterranean, has not been resumed at all since
the peace [of 1783].”34
During this crisis, the states often behaved in ways that weakened
Congress’s authority in foreign affairs. Efforts by the newly created Congress
to portray itself as sovereign over the states were undermined by expressions
of sovereignty by state legislatures. Virginia, for example, weakened
the federal government’s standing abroad by ratifying the Treaty of Peace
with Britain after Congress had formally ratified it (implying that Virginia
was a sovereign government). Virginia further embarrassed American political
leaders when it disobeyed Congress and violated international law by
harboring a French pirate wanted by Louis XVI.
As predicted by Sheffield, interstate competition weakened the ability
of the states to retaliate collectively against punitive policies adopted by
foreign governments. As an example, in response to Britain’s exclusion
of America from the West Indies, nine states adopted tariff and tonnage
policies that discriminated against British ships and goods. Five other states,
however, either chose not to discriminate against or imposed negligible
tariffs on British goods. Merchants imported British goods into the states
with favorable policies, and the goods were then distributed across state
lines, undermining the impact of the discriminatory policies of the nine
states that wanted to retaliate against the British. One Congressman later
accused Vermont of harming the joint effort of the states to strike back
against Britain by being “l(fā)eagued with Canada in pouring in upon the
interior country the manufactures of Britain.”35
Many also feared that the states’ commercial policies would lead to
counter-productive interstate discriminatory taxation, hostility, and possibly
even war. New York, for example, imposed taxes on trade with New
Jersey and Connecticut. Connecticut imposed heavier duties on goods from
Massachusetts than those from Great Britain.
Finally, Congress needed an independent revenue source to pay its Revolutionary
War debts. Many states failed to impose the taxes necessary
for their requisition payments to the federal government. Congress was
forced to stop paying interest on its debts, and the credit standing of the
United States abroad declined rapidly. Americans had to borrow from the
Dutch and French at very high interest rates. Outstanding debts to a variety
of European countries made the Confederation generally insecure because,
34 Thomas Jefferson, Report of the Secretary of State relative to the Mediterranean Trade
(Dec. 28, 1790), 1st Cong., 3d Sess., American State Papers, Foreign Relations: 1, 104–105,
104.
35 Boudinot, U.S. House Journal. 1st Cong., 1st sess., April 11, 1789, p. 123.
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according to international law at the time, non-payment of debts by a country
was an acceptable ground for invasion. John Adams wrote that, unless
the federal government paid its debts, “it will be but a few years . . . before
we are involved in another war.”36 Congress was powerless to deal with
the crisis caused by Spain’s closure of the Mississippi. The government
also needed money to address the humiliating Barbary pirate crisis, and in
preparation for future emergencies.
The U.S. Constitution
The U.S. Constitution represented in large part a response to the problems
of the state sovereignty model of finance and trade. The states ceded their
control over many central economic and commercial policies to the federal
government. At the same time, the federal Congress was prohibited from
using trade policy to discriminate against any of the states. The outcome
was the creation of an internal free trade zone throughout the states. Under
Article I, Section 10, the states might not independently “l(fā)ay any imposts
or duties on imports or exports, except what may be absolutely necessary for
executing . . . inspection laws,” or “l(fā)ay any duty of tonnage,” or negotiate
independently with foreign governments.
The Constitution gave Congress the power “to lay and collect taxes,
duties, imposts and excises,” “to regulate commerce with foreign Nations
and among the several states, and with the Indian tribes,” and, by making
treaties the supreme law of the land, to negotiate with foreign powers.
The individual states were protected, however, by the requirement that
the duties and imposts “be uniform throughout the United States,” by a
prohibition on taxes and duties imposed on “articles exported from any
state” and a prohibition on “preference[s] . . . given by any Regulation of
Commerce or Revenue to the Ports of one State over those of another.” The
Constitution further stated that “Vessels bound to, or from, one State [shall
not] be obliged to enter, clear, or pay Duties in another.”
The Constitution did not end interstate competition. It prevented
explicit state imposition of discriminatory tariffs and tonnage duties (except
to finance inspection). It thereby channeled state government involvement
in the economy into internal improvements and the promotion and subsidy
of local economic activity. The Constitution forced the state legislatures
to cede control over many of the central areas of policymaking that had
been under their control since they originated as colonies. The states could
no longer collect revenue by means of tariff and tonnage policies (again,
except to fund inspection). They could no longer issue paper money or enact
36 Quoted in Marks, Independence on Trial, 46.
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commodity money policies by means of legal tender laws. They were
required to respect federal law, federal trade treaties, and federal law relating
to Native Americans. The states – the institutions of government to
which the citizenry felt the most allegiance – were prevented from acting
in the areas of foreign trade and foreign policy.
What type of commercial policy did the Constitution’s framers intend
for the federal government? Although the U.S. Constitution unequivocally
established a free-trade regime within the United States, the document
was open ended on the issue of foreign policy and of America’s role in
world affairs. The Constitution did not set express limitations on the use
of protective legislation to regulate external trade. It gave Congress an
unlimited power to borrow on the credit of the United States, but was
silent on the issue of the appropriate government financial infrastructure
that would dictate the extent of federal borrowing. The Constitution placed
few limitations on the executive branch’s power to make military decisions.
Under the Constitution, isolationism and aggressive expansion were equally
acceptable.
The Northwest Ordinance of 1787, enacted months before the Constitution
was ratified, however, sheds some light on the founding intent
with respect to American trade policy. The Ordinance explicitly adopted
an anti-mercantilist stance with respect to frontier land. Prior to its enactment,
questions existed as to the proper role of the American frontier in
relation to the original states: should the frontier areas be treated as colonies
of the United States? The Northwest Ordinance announced a new, republican
style of expansion that dispelled doubt. It provided a mechanism for
the territories to join the U.S. “empire,” not as dependent colonies, but as
equal participants in the nation as states. As James Monroe wrote in a letter
to Thomas Jefferson, the Ordinance creates “a colonial government similar
to that which prevail’d in these States previous to the revolution, with this
remarkable and important difference” that the districts “shall be admitted into
the confederacy” when they reached a certain population.37 The text of the
Ordinance stated that when a state reached sixty thousand free inhabitants,
the state would be admitted to the Congress of the United States “on an
equal footing with the original States in all respects whatever.” Because of
the concern that the frontier areas might be treated as colonies, the Ordinance,
in contrast to the U.S. Constitution, provided a bill of rights. It stated
that the inhabitants of the territory were entitled to the right of habeas corpus,
37 James Monroe to Thomas Jefferson (May 11, 1786), in Julian P. Boyd and Mina R. Bryan,
eds., The Papers of Thomas Jefferson (Princeton, NJ, 1954), vol. 9: 510–12, 511 (emphasis
added).
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trial by jury, and a host of other liberties on which, the colonists had felt,
Britain had reneged.
The Ordinance of 1787, however, was internal; it did not prevent American
political leaders from pursuing aggressive foreign policies – financial
and otherwise – elsewhere. John Adams, Benjamin Franklin, and others in
the 1770s believed that America might bring about a revolution in international
commercial relations based on free-trade principles. Their ambition,
it turned out, was quickly suppressed by historical events; Britain would
not recognize American neutrality in subsequent European wars. Given the
circumstances, American political leaders might have mobilized support
for an aggressive foreign policy, leading, perhaps, to America entering the
European race for colonies in the early nineteenth century. But, federal government
policy in the Founding Era was constrained by lingering hostility
to centralized governmental authority and taxation.
Federal Government Trade Policy in the Founding Era – The Tariff of 1789
Tariff policy was the central means available to a government to define its
foreign trade policy in the late eighteenth century. As exemplified by the
English Navigation Acts, tariff policies enacted to promote the balance of
trade are a quintessential feature of a “mercantilist” government. When the
First Congress of the United States met in 1789, it was immediately obvious
that collecting tariffs would be essential to resolving the country’s desperate
financial problems. The federal tariff was the first non-administrative item
on Congress’s agenda when it first met in April 1789. GeorgeWashington
signed the Tariff Act of 1789 on July 4, signaling, on the new republic’s
most revered day, that it was derived from true American sovereignty and
independence from Britain.
Americans were generally supportive of the tariff because relying on
tariff duties for revenue was more palatable than any other form of taxation.
The citizenry was far more hostile to federal direct taxation of property
because that would have involved droves of government officials roaming the
countryside, assessing the value of the citizenry’s property, and foreclosing
on the property of those who failed to pay. Tariffs were paid by merchants at
the time of import and were therefore “invisible” to the ultimate consumer.
Allowing the federal government to rely on tariffs for revenue also catered to
the Southern states’ preference to avoid Congressional discussion of slaves –
how their numbers would affect the revenue or at what rates slaves should
be taxed – which inevitably would have arisen in debates over direct taxes.
In each year between 1791 and the War of 1812 more than 85 percent of
the federal government’s tax revenue was collected in the form of tariffs.
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For ten of those years it accounted for 100 percent of federal government
tax revenues.
Early American tariff policy, however, reflected not an aggressive stance
on trade policy designed to improve the balance of trade, but rather an
attempt to collect the minimum required revenue to support the government
while delicately balancing competing regional interests. During the
debates over the first national tariff, a consensus emerged that the burdens
of taxation should be divided as evenly as possible among the states. As one
Congressman put it, “Whenever a tax on a particular article seems to bear
harder on one State than another, we must endeavor to equalize it by laying
some other to restore an equilibrium to the system.”38
Regional interests among the states differed substantially. The South
wanted tariffs kept low. Like most regions dominated by the export of
staple agricultural goods, Southern states feared retaliatory taxes by foreign
governments. If European nations were to levy high tariffs on tobacco
(or later, cotton) in retaliation to American duties, the Southern economy
would bear most of the costs. Southerners also depended more heavily on
imported manufactured goods, and tariffs on such goods would harm them
as consumers. Madison represented the Southern interests in stating that
the regulation of commerce “ought to be as free as the policy of nations will
admit.”39
The Middle Atlantic states, in contrast, promoted a moderately protectionist
agenda. Initially, the “manufactures” these colonies wanted to
protect were goods like cheese, cider, and leather goods produced on local
farms.40
The central concern of the New England states was protection of their
ship-building enterprises by means of tonnage duties that discriminated
against foreign-built and foreign-owned ships. New Englanders advocated
a mercantilist American monopoly of shipping, similar to the monopoly
enjoyed by British merchants under the Navigation Acts.
Southern politicians viewed any protection of manufacturing as a transfer
of wealth from South to North. According to one Southern representative,
“By the encouragement given to manufactures you raise them in price,
while a competition is destroyed which tended to the advantage of agriculture.”
41 Similarly, a shipping monopoly ran directly against the interests
of Southerners dependent on less costly English and European shipping for
the export of staple goods in the trans-Atlantic trade.
38 Fitzsimons, U.S. House Journal. 1st Cong., 1st sess., April 14, 1789, 136 (emphasis added).
39 James Madison, U.S. House Journal. 1st Cong., 1st sess., April 9, 1789, 107.
40 U.S. House Journal. 1st Cong., 1st sess., April 9, 1789, 111.
41 Moore, U.S. House Journal. 1st Cong., 1st sess., April 16, 1789, 160.
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The initial tariff legislation adopted by Congress granted New England
the discriminatory tonnage duties it wanted.42 Ultimately, Madison built
a consensus around the notion that it was in the national interest to impose
discriminatory tonnage duties, not for explicitly mercantilist purposes, but
as defense legislation. America lacked a navy and through the practice of
privateering – when government permitted private ships to capture ships
of the enemy – private ships could be used for military purposes. (Indeed,
the military ends of navigation were viewed as so important that Congress
decided to subsidize fish exports to encourage an expansion of the fishing
industry, because fishing was a “nursery for seamen.”43) The Tariff Act
gave the Middle Atlantic states moderate protection on many items they
produced (ranging from a high of 15 percent on carriages, to 10 percent or
7.5 percent on other goods). It placated the South with low rates of tariffs
overall. The protective tariffs were not generally prohibitively high, and a
low duty of 5 percent ad valorem was imposed on all items not specifically
enumerated.
Overall, tariff legislation of the Founding Era reflected the rejection of
the British model of mercantilism. Like the Navigation Acts, the tariff
included protectionist elements. The central focus of the tariff debates and
of the tariff legislation, however, was to generate the revenue the federal
government needed to pay its debts. In contrast, mercantilist tariff systems
were designed to improve the balance of trade, typically by promoting
the export of manufactured items. The dominant lobby within the United
States, however, was agriculture, and tariff rates in the late eighteenth
century were low.
hamilton’s financial system: the mercantilist moment
Alexander Hamilton became Treasury Secretary in 1790 and, at the request
of Congress, developed a financial plan that would both resolve the country’s
immediate financial problems and enable it to protect itself in the event of
a future war with European powers. His plan was outlined in three reports
presented to Congress: the Report on Public Credit (1790), the Report on a
National Bank (1790), and the Report on Manufactures (1791). Hamilton’s
plan had a lasting impact on the country, both because Congress approved
of and adopted most of his proposals and also because a new American
42 The Tonnage Act of 1789 imposed a duty of fifty cents a ton on vessels that were both
foreign built and foreign owned; a duty of thirty cents a ton on vessels built in the United
States, but foreign owned; and a duty of six cents per ton on vessels built and owned
by Americans. If the vessels were employed in the fisheries or coasting trade, they were
required to pay the duty only once a year.
43 U.S. House Journal. 1st Cong., 1st sess., April 28, 1789, 222–23 (Wadsworth) and May 4,
249 (Madison).
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438 Claire Priest
political economy emerged out of the fierce public reaction to Hamilton’s
proposals and to the Federalists who supported it.
The Report on Pubic Credit proposed a redefinition of the balance of power
between the state and federal governments by having the federal government
assume all state war debts. To Hamilton, federal government assumption
of state debts was a vehicle for rallying local economic interests to
support the federal government. Satisfying the war debts would require the
sale of bond issues. If the federal government assumed the state war debts
and issued its own federal bonds, as Hamilton proposed, these bondholders
would have a direct interest in the financial security of the federal government.
State issues of bonds, in contrast, would have led to greater economic
interest in and, ultimately, allegiance to the state governments.
Hamilton’s Report on Public Credit also insisted on making markets for
government debt stable and highly liquid, so that the debt instruments
would function as an infusion of capital in the economy. The price of the
government bonds issued during theWar had dropped to a fraction of their
initial worth. By 1790, speculators betting on full redemption, including
several prominent government officials, rapidly bought up the bonds at very
low prices. Hamilton’s Report energetically defended non-discrimination
between those who had purchased government bonds directly from the
government at face value in specie (the primary debt holders), and those
who had purchased the bonds in the bond market later (the secondary debt
holders). Hamilton’s plan of full redemption for secondary debt holders
anticipated profits for these speculators in the tens of millions of dollars in
contemporary values.
Madison and others, in contrast, believed that foreign creditors should
be paid at par, but domestic debt holders should receive no more than the
price they had paid for the bonds plus interest. Madison found it offensive
that the “profits” handed out to the bond speculators – many of whom
were government insiders – would be paid for by taxes on the general
population. Hamilton prevailed, however, asserting that maintaining the
highest standards with respect to government credit obligations, whether
to foreign or domestic creditors, ultimately saved taxpayers money through
lower future interest rates and more available credit.44
44 Hamilton’s Report on Public Credit explains that discrimination against secondary bond
holders “would operate a diminution of the value of stock in the hands of the first, as
well as of every other holder. . . . For this diminution of the value of stock, every person
who should be about to lend to the Government, would demand compensation. . . . Every
compensation of this sort . . . would be an absolute loss to the Government.” Alexander
Hamilton, Report on Public Credit (Jan. 9, 1790), Finance, 1st Cong., 2d. Sess., American
State Papers, 15–29, 17.
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Assumption of the state debts and securing the public credit had an additional
polarizing implication: the federal government would need greater
revenues to meet expanded obligations. It was widely acknowledged that
the revenues from the import tariffs of 1789 were insufficient to pay the
government debts on the terms Hamilton outlined.45 Federal assumption of
the state war debts brought the taxation issue to the forefront of discussion.
To raise further revenues to cover the costs of the assumption of state debts,
in March 1791, Congress imposed an excise tax on whiskey. The whiskey
tax was Congress’s first experiment in federal direct taxation.
Hamilton’s Report on a National Bank presented his plan to create a privately
run national bank to hold the government reserves and to use government
debt to stimulate the economy. The bank would have the ability
to make loans and to issue notes that would circulate as a currency. The
bank could be relied on to service the government with loans in cases of
national emergency, and it would make taxation far more administrable,
since bank notes would be accepted as tax payments. Congress granted the
First Bank of the United States a twenty-year charter in 1791. The First
Bank, however, was controversial. Many, including Madison and Jefferson,
initially believed it to be unconstitutional. It gave the federal government
and its private managers financial powers resembling those of the privately
run Bank of England, which held most of the British government reserves.
Hamilton’s final major report, the Report on Manufactures, though more
equivocal than his other reports, presented the case for a system of tariffs and
bounties that would stimulate manufacturing in America. It asserted that
free-trade policies would be ideal if other nations could be counted on to
also adopt such policies. Hamilton viewed tariff policy as a response to the
“numerous and very injurious impediments to the emission and vent of [our]
own commodities.” He also believed that government incentives to develop
manufacturing (such as import substitution policies) were particularly necessary
in America because manufacturing had been suppressed under British
colonial rule. To Hamilton, the “simplest and most obvious improvements,
in the most ordinary occupations, are adopted with hesitation,
45 AsWilliam Grayson, an anti-Federalist senator from Virginia described,
The creditors of the domestic debt (the great supporters of the new government) are now looking
steadfastly on their friends for a permanent provision for their interest – But how is this to be
accomplished – The Impost . . . will not yield after supporting the expenses of government, more
than will pay the French and Dutch interest, if so much – what is then to be done? Ah! There is the
question.
William Grayson to Patrick Henry, 12 June 1789, quoted in William D. Barber,
“‘Among the Most Techy Articles of Civil Police’: Federal Taxation and the Adoption of
the Whiskey Excise,” William and Mary Quarterly 25 (1968), 58–84, 67.
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440 Claire Priest
reluctance, and by slow gradations. . . . The spontaneous transition to new
pursuits [is] . . . attended with proportionably greater difficulty.”46 In the
Report, Hamilton argued that manufacturing would benefit the society
because it would lead to greater independence from European manufactures,
greater division of labor, and more jobs (especially for women and
children), which would increase demand for agricultural goods. Perhaps
most important, the federal government was in desperate need of revenue.
Why not earn revenue with a measure that would jump-start American
manufacturing?
The Federalist foreign policy vision, more generally, was characterized
by a pragmatic commitment to building on the strengths of the American
economy as it existed in the 1790s. Hamilton and the other Federalists
supported furthering close economic relationships with Britain. The ability
to repay the public debts and honor the obligations, of the bond issues rested
on continued revenues from import tariffs. Maintaining trade relations with
the English would ensure Hamilton of the tariff revenue he needed to fund
his financial plan because English merchants would willingly extend credit
to the Americans for imports. From the vantage of public credit, relying
on new trade relations with the French and Dutch was much more risky.
To defend American commerce, however, the Federalists were committed
to a much stronger military and advocated federal expenditures on a
navy. Hamilton suggested to John Adams that he might lead an army to
conquer Louisiana and Florida to give Americans access to their rivers and
outlets. However, Hamilton and the Federalists opposed any immediate
western expansion. They believed that the capital resources of the country
should be invested locally to develop manufacturing and American industry.
Expansion would dissipate these resources. Referring to the settlement
of “the vast tracts of waste land” in the West, Hamilton stated, “while it
promises ample retribution, in the generation of future resources, diminishes
or obstructs, in the mean time, the active wealth of the country. It not
only draws off a part of the circulating money, and places it in a more passive
state, but it diverts, into its own channels, a portion of that species of labor
and industry which would otherwise be employed in furnishing materials
for foreign trade, and which, by contributing to a favorable balance, would
assist the introduction of specie.”47 Still partly a mercantilist – note his
emphasis on specie – Hamilton opposed federal subsidization of western
expansion.
46 Alexander Hamilton, Report on Manufactures (Dec. 5, 1791), 2d. Cong., 1st Sess.,
American State Papers, Finance, 123–44, 128.
47 Alexander Hamilton, Report on a National Bank (Dec. 14, 1790), 1st. Cong., 2d Sess.,
American State Papers, Finance, 67–76, 71.
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Had the Federalist vision of American economic growth been implemented,
the United States might have become a major force internationally
by mid-century. The national debt in 1790 was only 40 percent of
gross national product, smaller than that of most countries in the early
twenty-first century, and the economy was booming. During the 1790s,
under Hamilton’s plan, 40 percent of federal revenues were used to pay
down the government’s debt obligations. By 1800, the national debt was
reduced to 18 percent of gross national product. Hamilton can be credited
with creating an institutional structure that would have allowed the U.S.
government to finance expenditures on the scale of the leading European
powers.
The institutional features of American public finance were a great success
in economic terms. Politically, however, the implementation of Hamilton’s
scheme proved disastrous, provoking the emergence of Republicanism in
reaction. A speculative frenzy developed during the subscription to the
stock of the Bank of the United States and to the new government bonds.
The speculation was viewed by many skeptics of the Bank as scandalous evidence
of its inherently corrupt effect. More deeply, many thought that the
existence of the Bank would create an aristocratic court party and financial
class that would usurp popular government authority. The mad scramble
for the Bank stock in the opening hours of offer suggested that the institution
would gain high monopoly profits. Speculators in government debt
drove up the price to par value, which meant millions in profits for speculators
who had bought at substantial discounts from par. In the spring
of 1792, however, nervous European investors began to sell the government
bonds, and major speculators lost money. This first financial collapse,
though inconsistent with the opposition to profit-making, only increased
the opposition to Hamilton and his ideas.
In this context, Hamilton’s Report on Manufactures of 1791, coinciding
with his creation of a corporation called the Society for Useful Manufactures
that would promote manufacturing in Pennsylvania, created deep suspicion
that the U.S. government would be used by Federalists, as the central government
had been used in Britain, to advance mercantile interests. Moreover,
Hamilton’s 1794 direct tax on whiskey distilleries was wildly unpopular.
Although in New England the tax was levied on large molasses distilleries,
in the corn-growing regions of the West and South, farmers often
kept small distilleries on their farms. The intrusion of federal tax collectors
into these regions brought open rebellion against the government. George
Washington, general of the American Revolution, and Hamilton, who had
been his principal aide, personally suppressed the Whiskey Rebellion with
13,000 troops in 1794. Jefferson’s campaign in 1800 emphasized a promise
to repeal all federal government internal taxes.
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442 Claire Priest
Jefferson’s Notes on the State of Virginia laid the groundwork for the Republican
theory of political economy. To Jefferson, British prohibitions on
American manufacturing were fortuitous in that they led to the dominance
of agriculture and extractive industries throughout the colonies. This agricultural
base supported the creation of a society free of the miseries and
corruptions of European life. The Notes famously stated that “those who
labor the earth” are “the chosen people of God.” To Jefferson and many of
his contemporaries, manufacturing involved work that only people without
property would willingly perform. Manufacturing was “resorted to of
necessity not of choice.” American greatness lay in the rejection of domestic
manufacturing. America would import its luxury goods from European
countries that lacked the land to offer their citizenry the life of the independent
farmer. By its “immensity of land,” the expansion of agriculture, and
the virtuous nature of its citizenry, America would achieve the “happiness
and permanence of government.”
Jefferson preserved Hamilton’s basic financial system, but reduced its
impact on the lives of the citizenry. On entering office, Jefferson brought
about the repeal of Hamilton’s internal taxes and appointed Albert Gallatin
as Secretary of Treasury with a specific mandate to pay down the federal
debt. Under Gallatin’s direction, the federal debt was reduced without
taxes by funds from the sale of public lands earmarked for the purpose. By
the outbreak of the War of 1812, the government debt was $45 million,
only 8 percent of the country’s gross national product. To the Jeffersonian-
Republicans, a balanced budget reflected a popular desire to limit the size
and power of the federal government and to protect the authority of the
states. By repealing the internal taxes and paying down the debt, Jefferson
at least temporarily blocked federal government expansion.
In terms of foreign policy, Republicanism turned mercantilism on its
head. European mercantilism had traditionally focused – to a fault – on
the capture of markets where manufactured exports could be sold. The
Jeffersonian-Republicans sought to use government influence to negotiate
treaties that would indirectly suppress manufacturing by expanding agriculture.
They were not isolationists, far from it. Foreign trade and engagement
with the world were essential to Republican ideology. The successful
creation of the Republican economy depended on close commercial relations
with foreign merchants who would purchase American agricultural
goods and, in return, supply Americans with the manufactured items they
needed.
The conquest of theWest might seem to replicate British colonialism of
the eighteenth and nineteenth centuries. It is essential to remember, however,
that in the Founding Era it was the Jeffersonian-Republicans, not the
Washington-Hamiltonian Federalists, who were the party of expansionism.
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Law and Commerce, 1580–1815 443
Jefferson agonized over the Louisiana Purchase because he viewed it to be
beyond the powers of the federal government under the Constitution. There
is no question, however, that the Louisiana Purchase, and the conquest of
the West more generally, fulfilled his vision of America and could be justified
as necessary acts by government to ensure enough land to spread the
agrarian ideal and to forestall industrialization. Indeed, Jefferson and other
Republicans proposed conquering Canada immediately prior to the War
of 1812. Jefferson believed that Canada was so ready for “l(fā)iberation” that
conquering it would be “a mere matter of marching.”48
The distinction between the Federalist and Jeffersonian-Republican parties
is also highlighted by the manner in which the crisis with the Barbary
pirates was ultimately resolved. The Federalists tried to resolve the crisis
through monetary payments only. The hostage-taking persisted, however,
and in 1805 Jefferson built a navy for the express purpose of crushing the
Barbary pirates. Jefferson wanted to break ties with Europe and viewed
access to the Mediterranean as central to the Republican goal of an economy
based on exporting agricultural goods. He was willing to use military
means to achieve his objective and he succeeded.
More generally, however, theWest was not conquered because of the traditional
mercantilist belief in the need to capture markets. The West was
conquered to expand agriculture. According to Madison, “By a free expansion
of our people the establishment of internal manufactures will not only
be long delayed but the consumption of foreign manufactures long continue
increasing; and at the same time, all the productions of the American
soil required by Europe in return for her manufactures, will proportionably
increase.”49 The federal government’s investments in western expansion
might be criticized for draining resources from the domestic economy and
for inflating the incentives for settlers to move to the frontier (as well as
for atrocities committed against Native Americans). In contrast to classic
mercantilist policies, however, westward expansion was not pursued for the
purpose of achieving national power at the expense of other world powers.
In sum, commercial regulations in the Founding Era were not used to
enhance government power and reflected a compromise between conflicting
regional interests, the use of military to expand westward did not conform to
the traditional mercantilist objective of securing markets, and the financial
apparatus that could have been used to vastly increase federal government
power was severely constrained.
48 Thomas Jefferson toWilliam Duane, Aug. 4, 1812, in Paul L. Ford, ed., The Writings of
Thomas Jefferson, 10 vols. (New York, 1892–9), IX: 366.
49 James Madison to Thomas Jefferson, Aug. 20, 1784, in Gaillard Hunt, ed., The Writings
of James Madison, 9 vols. (New York, 1901), II: 64–76, 72.
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444 Claire Priest
The Rise of Tariff Levels and Manufacturing Prior to the Civil War
We can consider tariff levels a proxy for the pursuit of mercantilist-like
goals of protecting manufacturing and improving the balance of trade.
In the Founding Era, tariff levels gradually, but steadily, increased as the
manufacturing sector developed and its lobbying capabilities became more
powerful. The Revolutionary War provided the first stimulus to manufacturing.
American manufacturing grew exponentially during Jefferson’s
1808–9 Embargo of Britain and theWar of 1812. Tariff legislation became
increasingly protective after these crises. Between 1789 and 1812 twelve
tariff laws were enacted. Each increased the number of dutiable articles and
the overall level of duties.
Northern manufacturing interests lobbying for tariffs, however, faced
increasing opposition from Southerners, who persistently viewed protection
as a transfer of wealth from North to South. Every tariff bill adopted in
America prior to the CivilWar reflected a compromise based on conflicting
regional interests. Southern hostility to the duties escalated as tariff legislation
increasingly became identified as a federal legislative precedent that
might eventually threaten slave interests.
With the growth of manufacturing during the 1820s, New England
leaders adopted highly protectionist positions, abandoning their prior, more
moderate views. When Southern interests were disregarded in 1832, South
Carolina charged that the tariff was “intended for the protection of domestic
manufactures, and the giving of bounties to classes and individuals engaged
in particular employments at the expense and to the injury and oppression
of other classes and individuals.” South Carolina analogized its situation
to that of a colony of the North. Guided by Calhoun’s Exposition on state
nullification of federal legislation, South Carolina held a state convention
that made it unlawful after February 1, 1833, to collect tariff duties within
the state. The nullification crisis was suppressed by Andrew Jackson’s threat
to invade the state. The crisis was the breaking point of a decades-long interregional
conflict over tariffs.
The movement for western expansion did not face similar opposition.
As already mentioned, revenues from federal land sales were earmarked to
pay down federal government debt. Land sales led to a steady reduction
of the federal debt between 1812 and 1833, when the federal debt was
fully paid off. Western expansion was “imperialism” of a peculiar kind. In
the minds of the people, western expansion in the early nineteenth century
directly reduced the size and scope of the federal government, as reflected
in government debt, and the institutions, such as the Bank of the United
States, that managed the government debt. There was no strong economic
interest to oppose western expansion. True American colonialism did not
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Law and Commerce, 1580–1815 445
take place until after the Civil War when the Southern states, the primary
economic lobby that would have opposed American colonialism overseas,
were far less economically and politically powerful than before.
V. CONCLUSION
The global economic and political dominance of the United States today
make it tempting to look for traces of imperialism and colonialism in
America’s early history. There is superficial evidence to support the claim.
A desire for stronger tariff policies was a pressing issue underlying the ratification
of the U.S. Constitution. Hamilton’s financial system was based on
the English model that financed the creation of a global empire.Westward
expansion was an integral part of the American experience from the start.
The account on which it relies, however, is historically misconceived; it
overlooks the long history of institutional and legal development during
the colonial period and the fragility of the federal government that emerged
when the colonies united.
In 1818, reflecting on the formation of the U.S. government, John Adams
remarked,
The colonies had grown up under constitutions of government so different, there
was so great a variety of religions, they were composed of so many different nations,
their customs, manners, and habits had so little resemblance, and their intercourse
had been so rare, and their knowledge of each other so imperfect, that to unite them
in the same principles in theory and the same system of action, was certainly a very
difficult enterprise. The complete accomplishment of it, in so short a time and
by such simple means, was perhaps a singular example in the history of mankind.
Thirteen clocks were made to strike together – a perfection of mechanism, which
no artist had ever before effected.50
Adams’ metaphor emphasizes the tenuous nature of the federal union
in its early years. Arguably, the federal government reflected the lowest
common denominator of what was palatable, given the public’s hostility to
federal power. Its policies were a product of constant compromises among
states representing vastly different interests. Scholars’ attempts to give the
federal government of the Founding Era a mercantilist or neo-mercantilist
gloss is inconsistent with the reluctance of the United States to become a
global power until the end of the nineteenth century. Western expansion
was a popular policy in part because the earmarking of public land sales to
the reduction of the federal debt was a means of expanding the country’s
50 John Adams to Hezekiah Niles, Feb. 13, 1818, in Charles Francis Adams, ed., TheWorks
of John Adams, Second President of the United States, 10 vols. (Boston, 1856), 10:282–89,
283.
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446 Claire Priest
size while respecting the citizenry’s hostility to federal government power.
One consequence was a much more rapid conquest of theWest and Native
Americans than might have taken place otherwise. But a second consequence
was almost a century of relative isolation from global events. The history of
colonial institutional and legal development, and of Founding Era politics,
had a long, but of course far from permanent, legacy.
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13
law and the origins of the american
revolution
jack p. greene
The revolution that occurred in North America during the last quarter of
the eighteenth century was the unintended consequence of a dispute about
law. During the dozen years between 1764 and 1776, Britons on both sides
of the Atlantic engaged in an elaborate debate over the source and character
of law within the larger British Empire. Whether the King-in-Parliament,
the ultimate source of statute law in Great Britain, could legislate for British
colonies overseas was the ostensible question in dispute, but many other
related and even deeper legal issues involving the nature of the constitution
of the empire and the location of sovereignty within the empire emerged
from and were canvassed thoroughly during the debate. On neither side of
the Atlantic was opinion monolithic, but two sides, one representing the
dominant opinion in metropolitan Britain and the other the principal view
in the colonies, rapidly took shape. The failure to reconcile these positions
led in 1775 to open warfare and in 1776 to the decision of thirteen of
Britain’s more than thirty American colonies to declare their independence
and form an American union. This chapter examines the nature and shifting
character of this dispute and its place in the larger process of imperial legal
and constitutional thought and practice.
I. THE COLONIAL BACKGROUND
At the conclusion of the Seven Years War, constitutional arrangements
within the British Empire were deeply ambiguous. Recurrent disputes over
the extent of the Crown’s colonial authority had punctuated the public life
of the empire throughout its first century and a half. The colonizing process
had produced in each province a system of governance and authority loosely
modeled on that of the English. In each of these systems, elected legislative
assemblies asserted the claims of their constituents to all the rights and
legal safeguards enjoyed by English people at home. When, beginning in
the 1650s, London officials sought to impose metropolitan authority on
447
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448 Jack P. Greene
these provincial centers of authority, they evoked a profound mistrust of
central authority and a widespread demand for legal and constitutional
limitations on metropolitan power among American settlers, who insisted
that, as English people or the descendants of English people, they were
entitled to enjoy all the rights and legal protections of English people in
the home island.
The recurring arguments over this issue gave rise to an extensive constitutional
debate in which colonial spokesmen early developed an elaborate
argument to support their claims to what they thought of as their inherited
rights as English people. According to this argument, recently dubbed
the doctrine of settlement, the original settlers of the colonies had, with
authorization from the English monarchy, migrated voluntarily to America,
where they quickly turned a wilderness into thriving and well-inhabited
settlements and thereby, at little or no cost to the English government,
greatly enlarged the territories, wealth, and power of the English nation. In
the process of migration, this argument claimed, settlers took their English
rights and liberties with them, rights that had been guaranteed to them
by their charters and were secured by their respective civil governments.
Colonial charters, in this view, did not grant new rights but only confirmed
that settlers would continue to enjoy in their new polities across the sea
their inherited rights as English people. Among the liberties thus inherited
by and confirmed to them, settlers considered none more essential than the
rights, in the words of New York justice William Smith, “to choose the
Laws by which we will be Governed” and “to be Governed only by such
Laws.”1 They saw their elected assemblies as the primary instruments for
the exercise of those rights, the provincial equivalents of the metropolitan
House of Commons with the same broad lawmaking and rights-defending
authority within their respective jurisdictions.
This line of thought implied a conception of colonies as extensions of
Britain overseas and of colonists as Britons living outside the realm but
enjoying the very same liberties and rights to the very same extent as
those who remained at home. From this perspective, the British Empire
was a free empire based on consent, and colonists were fellow subjects who,
though “l(fā)iving in different parts of the world,” together with those residing
in Britain, formed, as the political economist Arthur Young remarked in
1772, “one nation, united under one sovereign, speaking the same language
and enjoying the same liberty.”2
But metropolitan officials always remained ambivalent about, not
whether, but to what extent English colonists were entitled to English
1William Smith, Mr. Smith’s Opinion Humbly Offered (New York 1734), 34.
2 Arthur Young, Political Essays Concerning the Present State of the British Empire (London,
1772), 1.
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Law and the Origins of the American Revolution 449
law and liberty. They were never willing to admit in their fullest extent the
colonists’ claims to enjoy all the rights of the English constitution. For that
reason, the exact nature of the colonial constitutions rapidly became the
main point of contention between Crown and colonies in much the same
way that, in the previous century, the nature of the English constitution
had been at the heart of the struggle between Crown and Parliament. The
many contests that everywhere developed over this issue revolved around
two principal questions: whether colonists were entitled to all the benefits
of the laws of England and whether the representative assemblies that settlers
established early in the history of every colony to make laws for the
local populations enjoyed the same status in the colonial constitutions as
the House of Commons did in the English constitution.
Crown officials never accepted the settler demands for explicit statutory
guarantees of their rights to the benefits of English laws. Nevertheless,
through the extensive use of English legal precedents and statutes by colonial
judges, colonists seem eventually to have managed to secure those benefits
through custom, usage, and practice. Most of the empirical research
necessary to nail down this point and to show fully the precise extent and
character of the transfer of English law to the colonies remains to be done.
Nevertheless, the diminution of demands for explicit guarantees of English
laws in the colonies after 1730 strongly suggests that provincial and local
courts had by that time effectively established the customary rights of the
colonists in this broad area.
In much the same way, the colonial assemblies succeeded in establishing
their strident and often reiterated claims to constitutional authority
within their respective jurisdictions equivalent to that of the House of
Commons in Britain. Although Crown officials consistently recognized the
assemblies’ authority to pass laws, they always insisted that those bodies
were subordinate institutions, much like the governing bodies of English
corporations and without the full rights and privileges of the English Parliament.
According to metropolitan theory, the very existence of the assemblies
depended, not on their constituents’ inherent rights as English people, but
on the favor of the Crown as extended to them by royal charter or some
other official document, such as the King’s commission or instructions to
his governors; from the late 1670s London authorities often condemned
colonial assemblies for regarding as rights what had only been granted as
favors. Repeatedly affirmed by the Crown’s law officers in London throughout
the eight decades between 1680 and 1760, this doctrine served as the
favorite defense for colonial executives trying to combat the assemblies’
pretensions to full legislative powers in the colonies, the clear implication
of their argument being that the Crown might change the constitutions of
the colonies whenever and however it saw fit.
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450 Jack P. Greene
This view of the colonies saw them less as societies of Britons overseas populated
by free settlers of English and European descent than as outposts of
British economic and strategic power. In this restrictive conception, explicit
in the Navigation Acts of the late seventeenth century, the colonies were
principally workshops or, in the words of the former Massachusetts governor,
Thomas Pownall, “mere plantations, tracts of foreign country, employed in
raising certain specified and enumerated commodities, solely for the use of
the trade and manufactures of the mother-country.” Increasingly after 1740,
and especially during the Seven YearsWar, this view gave way to a complementary
emphasis on the colonies as instruments of British national power.
Between 1745 and 1763, intensifying rivalries with France and Spain and
the growing populations and wealth of the colonies produced, for the first
time among metropolitan analysts, an intensive discussion about the nature
and workings of the empire, but that discussion only reaffirmed the view
that, as Charles Townshend declared subsequently, the very word “colony”
implied not the equality claimed by colonists but subordination. This conception
suggested that colonists were something less than full Britons, not
“fellow subjects,” as Benjamin Franklin put it in 1768, “but subjects of
subjects.”3
Because they controlled the power of the purse, however, and because
the Crown’s colonial governors found it impossible to govern effectively
without their consent, the colonial assemblies slowly managed to obtain
in practice the authority that Crown officials denied them in theory. Like
the English House of Commons had itself managed during the seventeenth
century, the colonial assemblies by the middle of the eighteenth century had
through precedent and custom been able to establish their authority and
status as local parliaments, the most important institutions in the colonial
constitutions, and the primary guardians of the colonists’ inherited rights
as Englishmen – including especially the right not be subjected to any
taxes or laws relating to their internal affairs without the consent of their
representatives in assembly.
The growth of legislative power in the colonies during the colonial era
was paralleled by the localization of authority within each of the colonies.
As each of these overseas entities developed its own peculiarly provincial
constitutional tradition, each one’s localities played a significant role in the
creation and perpetuation of those traditions. Perhaps to an even greater
extent than in contemporary Britain, where the Glorious Revolution had
3 Thomas Pownall, The Administration of the Colonies (London, 1768), 282; Benjamin
Franklin to the Gentlemen’s Magazine, January 1768, in Verner W. Crane, ed., Benjamin
Franklin’s Letters to the Press (Chapel Hill, NC, 1950), 111.
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Law and the Origins of the American Revolution 451
paved the way for a profound reassertion of the authority of local governing
institutions, local magistracies in the colonies exercised a pervasive
jurisdiction over many of the constitutive elements of the colonial polities,
including law enforcement, in which local magistrates and juries had
broad powers to determine what, in their respective communities, was –
and was not – law. The constitutional order in the colonies was at once
local, consensual, participatory, lay-directed, and customary. This diffusion
and localization of authority ensured that, in contrast to those of contemporary
continental monarchies, Britain’s expanding empire, like the emerging
British national state itself, would not be founded on methods of centralization
and absolutism.
These developments provided American settlers with another powerful
foundation for their arguments in defense of colonial rights against intrusions
of metropolitan power: the ancient English legal doctrine of usage
or custom. Custom had enormous authority in the British legal and constitutional
tradition. Both the common law and Parliament derived their
authority from the force of custom, and the British constitution was itself
based as much on custom as on statute law. Whether the colonies had been
settled long enough to be able to claim their rights and liberties on the
basis of immemorial custom was a matter of some doubt, even among colonial
partisans. Yet, in asserting that their right to representative institutions
was inherent in them as Englishmen, the colonists were claiming, as Justice
Joseph Murray of New York declared in 1734, that the assemblies derived
“their Power or Authority . . . from the common Custom and Laws of England,
claimed as an English-man[‘]s Birth Right, and as having been such
by Immemorial Custom in England; and tho’ the People” in the colonies
could not “claim this by Immemorial Custom here, yet as being part of the
Dominions of England, they are intitled to the like Powers and Authorities
here, that their fellow Subjects have, or are intitled to, in their Mother
Country, by Immemorial Custom.”4
From very early on, however, colonists had defended their rights to assemblies
on the basis not just of English custom but of their own. By the early
1720s, colonists commonly based their claims for legislative rights and practices
on the basis of ancient custom or uninterrupted usage, which in some
colonies went back almost a century. “One would think,” wrote Connecticut
governor Jonathan Law in 1728, that rights “of so antient standing” –
constituting a “universal custom” stretching back “beyond the memory
of man” to the very beginnings of the colonies – “would . . . have the like
4 Joseph Murray, Mr. Murray’s Opinion Relating to the Courts of Justice in the Colony of New-York
(New York, 1734), 7, 15.
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452 Jack P. Greene
foundation with the general and particular customs of England.”5 When
they were “general, and . . . long continued,” explained Jonathan Blenham,
attorney general of Barbados, in 1742, “particular Customs and Usages”
became “in a manner Lex Loci” and were “not at once to be overthrown,
merely because” some Crown official happened to find them at variance
with his instructions.6 Quoting Sir Edward Coke, colonial protagonists
often argued that the Crown could lose a right by never having enforced it,
and they challenged the Crown’s authority to infringe rights and liberties
that they had long enjoyed.
Although the Crown’s law officers sometimes agreed with the colonists
that custom gave legal sanction to colonial practices that seemed to undermine
the prerogatives of the Crown, the usual metropolitan attitude was
that, no matter how long they had prevailed, such customary deviations
from British practice and royal prescription were unconstitutional and without
legal standing. Repeatedly they argued that such deviations might be
altered by the unilateral action of the metropolitan government, especially
when they represented obvious encroachments on the prerogatives of the
Crown.
Nevertheless, the trajectory of colonial constitutional development over
the course of the colonial period was powerfully in the direction of consensual
governance with strong legislative checks on the royal prerogative.
While the prerogative in Britain was reduced considerably as a result of various
statutory restrictions following the Glorious Revolution, it remained,
at least theoretically, extensive in the colonies. But over the seven decades
from the Revolution to the early 1760s, the assemblies in most colonies
had managed, through a combination of statutes and custom, largely to
neutralize the prerogative, and some of these achievements had been sanctioned
not only by custom but also even by rulings of Crown law officers,
who often upheld the doctrine of usage in colonial cases. The result was the
continuing fragility of royal power in the colonies.
The corollary of this weakness of royal power through a combination
of custom and the recognition of custom’s legally binding character by
metropolitan law officers was the failure of Parliament to take an expansive
role in colonial affairs. Except in the areas of general trade regulation,
imperial defense, and a few other minor matters, Parliament had taken
little interest in the colonies and very little interest indeed in internal
colonial governance. Combined with the example of the reduction of royal
5 Jonathan Law to Jonathan Belcher, June 18, 1728, in “Talcott Papers,” Collections of the
Connecticut Historical Society, 4:122–23.
6 [Jonathan Blenham], Remarks on Several Acts of Parliament Relating More especially to the
Colonies Abroad (London, 1742), 17.
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Law and the Origins of the American Revolution 453
authority in England itself, the limited nature of Parliament’s interest in
the colonies strongly suggested the reduction of all external power in the
colonies, that of Parliament as well as of the Crown. But the fact was that
before the mid-1760s the nature of Parliament’s relation to the colonies had
never been examined explicitly.
II. THE STAMP ACT CRISIS
Parliament’s efforts to impose revenue taxes on the colonies in the mid-
1760s thus precipitated the first intensive and systematic exploration of
this problem on either side of the Atlantic. On the surface, the issue raised
by these efforts, especially by the Stamp Act of 1765, was no more than
whether, in the succinct words of Massachusetts Governor Francis Bernard,
“America shall or shall not be Subject to the Legislature of Great Britain.”7
But the controversy moved on rapidly to a broad-ranging consideration
of fundamental issues involving the nature of the constitutional relationship
between Britain and the colonies and the distribution of power within
the empire. Far from producing either a theoretical or a practical solution
of these issues, however, the Stamp Act crisis revealed a deep rift in
understanding between metropolis and colonies, a rift that would never be
bridged within the structure of the empire.
Some metropolitan supporters later admitted that the Stamp Act was an
innovation. For at least three decades, however, metropolitan officials had
casually assumed that Parliament’s colonial authority was unlimited. For
more than a century, moreover, Parliament had routinely laid duties on colonial
exports and imports for the purposes of regulating trade and protecting
metropolitan interests. But Parliamentary legislation for the colonies had
been confined almost entirely to commercial and other economic regulations
of general scope. The only precedent for any other sort of revenue tax
was the Post Office Act of 1710, and revenue was not its primary objective.
If, before the Stamp Act, there were no precedents for Parliament’s
taxing the colonies for revenue, neither had anyone explicitly articulated
a theoretical justification for the exertion of Parliamentary authority in
that area.
The traditional link between taxation and representation in British constitutional
thought and practice made this problem potentially troublesome
– for metropolitans as well as colonials. Indeed, metropolitan disquiet
over this problem was clearly revealed during the Stamp Act crisis
7 Francis Bernard to Richard Jackson, August 18, 1764, in Edmund S. Morgan, ed., Prologue
to Revolution: Sources and Documents on the Stamp Act Crisis, 1764–1776 (Chapel Hill, NC,
1959), 29.
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454 Jack P. Greene
by proposals from several writers for colonial representation in Parliament.
More important, the administration of Prime Minister George Grenville
itself implicitly acknowledged the importance of the matter by the pains it
took to deal with it. During the winter of 1764–65, in the months just before
the passage of the Stamp Act, Grenville’s lieutenant, Thomas Whately,
ingeniously invented the doctrine of virtual representation, according to
which the colonists, like the many residents of Britain who had no voice in
elections, were nonetheless virtually represented in Parliament.
When Grenville first brought the proposal for colonial stamp duties
before Parliament the previous March, however, neither he nor Whately
had apparently thought of applying the doctrine of virtual representation
to the colonies; his initial attempt to finesse the problem created by the
lack of colonial representation in Parliament was a categorical assertion of
Parliament’s right. Indeed, by insisting on that occasion that Britain had
“an inherent right to lay inland duties there,” Grenville himself first raised
the question of Parliamentary right. In addition, by going out of his way
to assert that the “very sovereignty of this kingdom depends [up]on it,”
he also managed to establish the framework within which most metropolitans
would subsequently consider the issue by ensuring that they would
thenceforth interpret colonial opposition to the exertion of that right as
a challenge not simply to the authority of Parliament per se but to the
sovereignty of the metropolis in general.8
As soon as it was raised, the specter of Parliamentary taxation produced
enormous unease in the colonies. Arguing that it was unprecedented, colonial
spokesmen insisted that no community of Englishmen and their descendants
could be taxed without their consent, an exemption they claimed as
a right and not as a privilege. They dismissed the idea of virtual representation
out of hand and argued that no legislature had any right to legislate
for any people with whom it did not have a common interest and a direct
connection. For people on the peripheries of an extended polity like that of
the early modern British Empire, this emphasis on the local foundations of
legislative authority made sense. Whatever Parliament might declare, few
colonists had any doubt that their rights as Englishmen demanded both
that they be exempt from taxes levied in a distant metropolis without their
consent and that their own local assemblies have an exclusive power to tax
them.
In analyzing the colonial response to the Stamp Act crisis, scholars have
long tended to treat the colonists’ claims as demands for their individual
8 Commons Proceedings, March 8, 1764, in R. C. Simmons and P. D. G. Thomas, eds.,
Proceedings and Debates of the British Parliament Respecting North America (New York, 1980–
87), 1:492.
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Law and the Origins of the American Revolution 455
rights as Englishmen, as indeed they were. As several recent writers have
stressed, however, this emphasis has tended to obscure the very important
extent to which, especially during the Stamp Act crisis, the colonists seem to
have believed that the security of individual rights depended on the security
of corporate rights, which they thought of as virtually synonymous with the
rights of provincial assemblies. Throughout the colonial period, the status
and authority of the assemblies had been a prime subject of dispute between
metropolitans and colonials, and colonial legislators and political writers
had produced a rich and extensive body of literature, thereby building a
solid and thoroughly internalized political tradition on which resistance
leaders in the 1760s and 1770s could draw. Whereas earlier the conflict had
been between the assemblies and the Crown, after 1765 it was between the
assemblies and Parliament.
Throughout the Stamp Act crisis, colonial spokesmen put enormous
stress on the traditional conception of their assemblies as the primary
guardians of both the individual liberties of their constituents and the corporate
rights of the colonies. Noting that it was precisely because of their
great distance from the metropolis, which prevented them from being either
incorporated fully into the British nation or represented in the metropolitan
Parliament, that their assemblies had been established initially, they
insisted that each of their own local legislatures enjoyed full legislative
authority and exclusive power to tax within its respective jurisdiction.
The identification of individual rights with the corporate rights of the
assemblies ran right through the entire colonial argument. Thus the Connecticut
Assembly argued against Parliamentary taxation on the grounds
that it would both deprive their constituents of “that fundamental privilege
of Englishmen whereby, in special, they are denominated a free people” and,
no less important, leave them with “no more than a shew of legislation.”
“May it not be truly said in this case,” it asked, “that the Assemblies in the
colonies will have left no other power or authority, and the people no other
freedom, estates, or privileges than what may truly be called a tenancy at
will; that they [will] have exchanged, or rather lost those privileges and
rights which, according to the national constitution, were their birthright
and inheritance for such a disagreeable tenancy?”9
The colonists based their claims for exclusive taxing authority and exemption
from Parliamentary taxation almost entirely on the traditional legal
supports that they had relied on in their struggles with the Crown throughout
the colonial era: their rights as Englishmen, their royal charters, and,
9 [Tobias Fitch, et al.], Reasons Why the British Colonies, in America, Should not be Charged
with Internal Taxes (New Haven, 1764), in Bernard Bailyn, ed., Pamphlets of the American
Revolution, 1750–1776 (Cambridge, MA, 1965), 392–94.
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456 Jack P. Greene
especially, longstanding custom. Even those writers who, like the Massachusetts
lawyer James Otis, made extensive use of natural rights theory,
tended to equate natural rights with English rights. For more than a century,
they explained, they had uniformly exercised and enjoyed the privileges of
imposing and raising their own taxes in their provincial assemblies, and
such constant and uninterrupted usage, it seemed to them, was, in the best
traditions of English constitutional governance, sufficient in itself to make
a constitution. With these arguments, colonial spokesmen merely turned
against Parliament defenses they and their ancestors had developed over the
previous century to protect colonial rights against abuses of prerogative.
Whatever the sources of the legislative authority of the assemblies, the
most significant questions posed by the new intrusion of Parliament into
the domestic affairs of the colonies and the most vital issues raised by the
Stamp Act crisis vis-`a-vis the constitutional organization of the early modern
British Empire were how extensive that authority was and how it related
to the authority of the British Parliament. Linking authority to consent,
few colonists could accept the metropolitan position that there were no
limits to Parliament’s colonial authority. Although some argued that Parliament’s
authority was purely local and did not extend beyond the bounds
of Britain, most colonists in 1764–66 took a far more cautious approach,
admitting, as the Virginia lawyer and political writer Richard Bland put
it, that the colonies were “subordinate to the Authority of Parliament”
but denying that they were “absolutely so.”10 But what was the nature of
that subordination? Where should the line be drawn between the authority
of Parliament at the center and that of the colonial legislatures on the
peripheries of empire?
The traditional view has been that during the Stamp Act crisis the
colonists drew that line between taxation and legislation, that they denied
Parliament’s authority to tax the colonies for revenue but not its authority
to legislate for the colonies. Neither the Stamp Act Congress, a gathering of
delegates in New York in the fall of 1765, nor many of the assemblies commented
explicitly on Parliament’s authority outside the realm of taxation.
But the failure of most of these bodies to challenge Parliament’s legislative
authority outside the area of taxation by no means constituted an admission
of that authority, especially in view of the fact that several official bodies
denied that authority explicitly.
Indeed, considerable evidence suggests that the colonists’ strong initial
impulse was to exclude Parliament from all jurisdiction over the domestic
10 Richard Bland, An Inquiry into the Rights of the British Colonies (Williamsburg, 1766), in
William J. Van Schreeven and Robert L. Scribner, eds., Revolutionary Virginia: The Road
to Independence (Charlottesville, NC, 1973), 1:41, 43.
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Law and the Origins of the American Revolution 457
affairs of the colonies. Denying Parliament’s right to pass laws respecting
either taxation or their internal polities, early protests from the Connecticut
and Virginia legislatures and later declarations from the Virginia, Rhode
Island, Maryland, Connecticut, and Massachusetts assemblies claimed for
their constituents a right not merely to no taxation without representation
but even to no legislation without representation. Several writers, including
Bland, Governor Stephen Hopkins of Rhode Island, and Samuel Adams
of Massachusetts, wrote elaborate statements in defense of this position.
An analysis of their work suggests that the supposed colonial distinction
between taxation and legislation was less important to the colonial attempt
to delineate the jurisdictional boundaries between Parliament and the colonial
assemblies than a distinction between internal and external spheres of
government.
Bland provided the most extensive and systematic examination of this
distinction. Claiming for the colonists the authority “of directing their
internal Government by Laws made with their Consent,” he argued that
each colony was “a distinct State, independent, as to their internal Government,
of the original Kingdom, but united with her, as to their external
Polity, in the closest and most intimate league and amity, under the
same Allegiance, and enjoying the Benefits of a reciprocal Intercourse.”11
Though Bland did not specify precisely what matters were subsumed under
the respective categories internal and external, he implied that, Parliament’s
authority – to legislate as well as to tax – stopped short of the Atlantic coast
of the colonies and did not extend over any affairs relating exclusively
to the domestic life of the colonies. Such matters, according to Bland’s
formulation, were the exclusive province of the several colonial assemblies.
Nor was Bland peculiar in explicitly arguing that the limitations on
Parliament’s authority extended to all of the internal affairs of the colonies,
and not just to taxation. “The general superintending Power of the Parliament
over the whole British Empire,” four members of the Massachusetts
Assembly, including Samuel Adams and James Otis, wrote to a London
correspondent in December 1765, “is clearly admitted here, so far as in our
Circumstances is consistent with the Enjoyment of our essential Rights, as
Freemen, and British Subjects.”12 As Adams explained in another letter,
however, this general superintending power did not extend to the internal
affairs of the colonies. Claiming an “exclusive Right to make Laws for our
own internal Government & Taxation,” Adams argued that if the colonists
11 Ibid., 38–39.
12 James Otis et al., to Dennys De Berdt, December 20, 1765, in Harry Alonzo Cushing,
ed., The Writings of Samuel Adams (New York, 1904–08), 1:67.
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458 Jack P. Greene
were “indeed . . . British Subjects, (& they never can brook to be thought any
thing less) it seems necessary that they should exercise this Power within
themselves; for they are not represented in the British Parliam[en]t & their
great Distance renders it impracticable.”13 Only if each legislature within
the empire had an exclusive legislative authority within its own jurisdiction,
the Massachusetts Assembly declared in elaborating on this point,
would it be possible to ensure “that equality [of rights and legal status]
which ought ever to subsist among all his Majesty’s subjects in his wide
extended empire.”14
Stephen Hopkins carried this point still farther. “In an imperial state,
which consists of many separate governments each of which hath peculiar
privileges and of which kind it is evident that the empire of Great Britain
is,” Hopkins observed, “no single part, though greater than another part,
is by that superiority entitled to make laws for or to tax such lesser part.”
That was the reason, Hopkins believed, why each of the colonies had to have
“a legislature within itself to take care of its interests and to provide for
its peace and internal government.” Yet, like Bland and the Massachusetts
representatives, he recognized that there were “many things of a more general
nature, quite out of the reach of these particular legislatures, which
it is necessary should be regulated, ordered, and governed.” Among those
general matters, Hopkins included regulations concerning trade and good
order of “the whole British empire, taken collectively,” including “those
grand instruments of commerce,” money and paper credit. With regard
to all such general matters, he thought it “absolutely necessary” to have
“a general power to direct them, some supreme and overruling authority
with power to make laws and form regulations for the good of all, and to
compel their execution and observation.” Within the British Empire, this
general power, according to Hopkins, could be lodged only in the British
Parliament.15
The underlying conception of the empire suggested by these writers
was, perhaps, spelled out most clearly by one of the colonists’ supporters in
Britain. “Our Constitution is so tender of the Rights and Liberties of the
Subject,” wrote the anonymous author of A Vindication of the Rights of the
Americans in 1765, “that the People of England have their Repr[esentative]s,
the Scotch theirs, the Welsh theirs, the Irish theirs, [and] the Americans
theirs, for they have Assemblies and Parliaments, each of which represent the
13 Samuel Adams to Reverend G[eorge] W[hitfield], November 11, 1765, in ibid., 1:28–
29.
14 Massachusetts House to Francis Bernard, October 23, 1765, in ibid., 1:20.
15 Stephen Hopkins, The Rights of the Colonies Examined (Providence, 1765), in Bailyn, ed.,
Pamphlets, 512, 519.
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Law and the Origins of the American Revolution 459
Bulk of the People, of that Generality, or Division, for which such Assembly
or Parliament is appointed to be held.” The reason why it was “necessary
to have so many Houses of Representatives in the several Departments of
Government” was “obvious.” “In extensive Territories not confined to one
Island, or one Continent, but dispersed through a great Part of the Globe,”
he explained, “the Laws cannot be put into execution, nor the Rights of
the People preserved, without their being arranged into several Classes”
of coordinate legislatures, each, presumably, having exclusive jurisdiction
over the internal affairs of the territory for which it was responsible.16
This distinction between internal and external spheres effectively
described the pragmatic and customary distribution of authority within
the empire as it had developed over the past century and a half. Notwithstanding
metropolitan efforts to limit the extent of local self-government
in the colonies, the colonists had continued to enjoy considerable local
authority. In the exercise of metropolitan authority, Crown and Parliament
had, in fact, usually intervened only in matters of general import and with
the final review of actions undertaken by colonial legislatures and courts.
All powers relating to the internal affairs of the colonies, by contrast, were
under the control of local governing institutions. In view of this situation,
it was only natural for settlers to conclude that, insofar as their respective
internal affairs were concerned, no part of the empire could be subordinated
legally and constitutionally to any other part.
If, at the beginning of the Stamp Act crisis, the questions, in Benjamin
Franklin’s words, of “how far, and in what particulars” the colonies were
“subordinate and subject to the British parliament” were “points newly
agitated [and] never yet thoroughly considered,”17 that was no longer the
case by the time of the repeal of the Stamp Act in 1766. Over the preceding
two years, the colonists had slowly begun to construct what John Adams
later called “a formal, logical, and technical definition” of the imperial
constitution under which they lived.18 As a result of this “great inquiry,”
they had learned, as Bland put it, that it was “in vain to search into the
civil Constitution of England for directions in fixing the proper Connexion
between the Colonies and the Mother Kingdom.”19 The main underlying
principles of that constitution were certainly relevant to their inquiry, but
16A Vindication of the Rights of the Americans (London, 1765), 10–11.
17 Benjamin Franklin, “On the Tenure of the Manor of East Greenwich,” January 11, 1766,
in VernerW. Crane, ed., Benjamin Franklin’s Letters to the Press (Chapel Hill, NC, 1950),
48.
18 Earl of Clarendon [John Adams] to William Pym, January 27, 1766, in Charles Francis
Adams, ed., The Works of John Adams (Boston, 1856), 3:477.
19 Bland, Inquiry, in Van Schreeven and Scribner, eds., Revolutionary Virginia, 1:34.
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460 Jack P. Greene
the British constitution was not, in and of itself, a suitable constitution for
an “extended and diversified” empire.20
Instead, in their efforts to understand the nature of the relationship
between Britain and the colonies, the colonists turned for guidance to the
traditional rights of Englishmen and to their own experience with the actual
pattern of customary relations within the empire as it had developed over
the previous century and a half. They agreed with the Cambridge natural
law theorist Thomas Rutherforth that, as he wrote in the late 1750s, the
best “way of determining what form [of constitution] has been established
in any particular nation” was to examine “the history and customs of that
nation. A knowledge of its present customs will inform us what constitution
of government obtains now,” Rutherforth wrote, “and a knowledge of
its history will inform us by what means this constitution was introduced
or established.”21 Indeed, one of the central conclusions of their inquiry –
and one of their most vigorously pressed arguments against the intrusion
of Parliamentary power – was that, like Britain itself, both the individual
colonies and the empire as a whole had longstanding constitutional traditions
that, at least from the point of view of the colonies, seemed to supply
legitimacy to their determined efforts to resist what Bland referred to as
the “new System of Placing Great Britain as the centre of Attraction to the
Colonies.”22
In 1764–66, only the most advanced thinkers among the colonists were
willing to argue that Parliament had no role in either the imperial or the
several colonial constitutions, to suggest that there was “no dependence
or relation” between Britain and the colonies except “only that we are all
the common subjects of the same King.”23 What all colonial protests did
have in common, however, was a clear concern to fix the constitutional
and legal boundaries between the authority of the metropolis and that of
the colonies, between the power of Parliament and that of the colonial
assemblies. If Parliament had a constitutional role in the empire, they were
persuaded, that role had to be a limited one. They were virtually unanimous
in agreeing that that role did not include authority to tax the colonies for
revenue, and a substantial body of sentiment also held that it did not include
authority to legislate for the internal affairs of the colonies.
The colonial case against the Stamp Act got a generally hostile reception
in Britain. Few seemed to understand that the colonists’ challenge
20 J. M., The Legislative Authority of the British Parliament with respect to North America and the
Privileges of the Assemblies there, briefly considered (London, 1766), 11.
21 Thomas Rutherforth, Institutes of Natural Law, 2nd American ed. (Baltimore, 1832), 296.
22 Bland, Inquiry, in Van Schreeven and Scribner, eds., Revolutionary Virginia, 1:43.
23 “Letter from a Plain Yeoman,” Providence Gazette, May 11, 1765, in Morgan, ed., Prologue
to Revolution, 73.
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Law and the Origins of the American Revolution 461
to parliamentary authority went beyond the realm of taxation, and even
with regard to the more restricted conception of the colonial position, only
a few men in Parliament agreed with the colonists that there were limits on
Parliament’s colonial authority. Most both rejected the colonists’ contention
that they were unrepresented in Parliament and dismissed the argument
that inheritance, charters, and custom exempted the colonies from parliamentary
taxation. Lord Mansfield sounded the predominant argument
when he flatly declared that, “as to the power of making laws,” Parliament
represented “the whole British empire” and had “authority to bind every
part and every subject without the least distinction.”24
From this point of view, colonial claims for exemption from Parliamentary
taxation seemed, as Grenville had defined them when he first proposed
to levy stamp duties on the colonies, to be nothing less than a challenge
to British sovereignty. As it had gradually developed over the previous
century and a half, the conventional conception of sovereignty was that in
all polities, including “an Empire, extended and diversified, like that of
Great-Britain,”25 there had to be, as Blackstone wrote, “a supreme, irresistible,
absolute uncontrolled authority, in which the jura summi imperii, or
rights of sovereignty reside[d].”26 Because, most contemporaries seem to
have believed, the King-in-Parliament was sovereign in the British polity,
it could accept no restrictions on its authority without relinquishing the
sovereignty of the nation over the colonies. By definition, there could be no
limitation on a supreme authority: it was either complete or non-existent.
For that reason, it seemed obvious that the King-in-Parliament had full
authority over all matters relating to Britons everywhere. For the same
reason, it also seemed evident that no clear line could be drawn between
Parliament’s power to legislate for the colonies and its power to tax them.
In the metropolitan view, there was thus no distribution of authority
within the empire. “As the sovereign of the whole,” the King-in-Parliament
had “control over the whole British empire.”27 To most metropolitans, in
fact, the colonial position appeared incomprehensible because it seemed
to imply the existence of more than one sovereign authority within a single
state, and sovereignty, according to conventional theory, could not be
divided. An imperium in imperio – a sovereign authority within a sovereign
authority – was a contradiction in terms. As Lord Lyttleton put it, the
colonies were either “part of the dominions of the Crown of Great Britain”
24 Mansfield’s Speech, February 3, 1766, in Simmons and Thomas, eds., Proceedings and
Debates, 2:128–30.
25 J. M., Legislative Authority of the British Parliament, 11.
26 Sir William Blackstone, Commentaries on the Laws of England (London, 1822), 1:50–51,
178–80.
27 Letter to G. G. (London, 1767), 74.
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462 Jack P. Greene
and therefore “proper objects of our legislature,” or they were “small independent
communities,” each operating under its own sovereign authority.28
According to metropolitan theory, there was no middle ground between
these two extremes.
The intensity of colonial opposition to the Stamp Act forced Parliament
to repeal that measure, but it accompanied repeal with passage of the
Declaratory Act, modeled on the Irish Declaratory Act of 1720, asserting
Parliament’s authority “to bind the colonies and people of America . . . in
all cases whatsoever.” But this fiat from the center by no means resolved
the question of the distribution of authority within the empire. As Colonel
Isaac Barre announced in the House of Commons early in 1766, the Stamp
Act crisis had provoked “the people of America to reason . . . closely upon
the relative rights of this country and that,”29 and the undefined and “l(fā)oose
texture”30 of Britain’s extended and diversified empire had fostered the
development of two widely divergent interpretations of how authority was
distributed between metropolis and colonies. Whereas most people in the
former thought the empire a unitary state, most people in the latter thought
it a federal polity in which the authority of the center was limited by the
authority exercised by the peripheries.
III. THE TOWNSHEND MEASURES CONTROVERSY, 1768–72
If the Stamp Act crisis “first led the colonists into [systematic] Enquiries
concerning the nature of their political situation” in relation to Parliament,
31 its resolution in early 1766 by no means put an end to those
inquiries. Indeed, Parliament’s renewed efforts early in 1767 to tax the
colonies through the Townshend Acts quickly reopened the question. For
the next six years, people of all persuasions on both sides of the Atlantic
dug deeper into the difficult problem of the constitutional organization
of the empire. Their chief reaction to their findings was a fundamental
ambivalence.
During the crisis over the Townshend Acts, this ambivalence helped generate
a considerable amount of pragmatic flexibility, manifest, on both sides,
in a pronounced concern to contain the dispute within a narrow compass.
28 Lyttelton’s speech, February 3, 1766, in Simmons and Thomas, eds., Proceedings and
Debates, 2:126–27.
29 Barre’s speech, February 24, 1766, in ibid., 2:296.
30 The Political Balance, in which the Principles and Conduct of the Two Parties are weighed
(London, 1765), 45
31William Hicks, The Nature and Extent of Parliamentary Power Considered (NewYork, 1768),
in Merrill Jensen, ed., Tracts of the American Revolution, 1763–1776 (Indianapolis, 1967),
177.
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Law and the Origins of the American Revolution 463
At the same time, however, the length and intensity of the dispute pushed
some analysts on the colonial side to think through the nature of the connection
between Britain and the colonies more thoroughly than anyone had
ever done before. Although these thinkers regarded their conclusions as no
more than an articulation and rationalization of longstanding practice, they
represented a radical challenge to the metropolitan belief in Parliamentary
supremacy over the entire empire, a belief that, for most members of the
metropolitan political nation, continued to be nonnegotiable.
Notwithstanding a palpable crystallization of informed colonial opinion
around what was, from the perspective of the center, a radical view of the
constitutional organization of the empire, the spirit of conciliation ran so
deep that constituted authorities in no colony officially endorsed it during
the Townshend Acts crisis. Indeed, Parliament’s repeal of most of the Townshend
duties in 1770 and the rapid subsidence of overt colonial opposition
to Parliament over the next three years provided dramatic testimony to the
depth of that spirit. Yet those same years were also marked by a revival of
the much older controversy over the scope of the Crown’s prerogative powers
in the colonies. This revival underlined the fundamental problem of the
distribution of authority between Britain and the colonies as a continuing
major source of tension between metropolis and colonies.
The vast majority of people in the metropolitan establishment, in both
Britain and the colonies, adhered strictly to the position articulated by
Grenville and his supporters during the Stamp Act crisis. Interpreting
all suggestions for any limitations on Parliament’s colonial authority as a
challenge to the British constitution of Parliamentary supremacy and to
metropolitan sovereignty over the colonies, they continued to insist, as
they had throughout the Stamp Act crisis, that sovereignty was indivisible
and the maintenance of the supremacy and legislative authority of
Parliament in its fullest extent over the colonies was essential to the existence
of the empire. Undersecretary of State William Knox, one of the
few metropolitan officials who had actually served in the colonies, spelled
out the full implications of this line of reasoning in his influential The
Controversy Between Great Britain and her Colonies Reviewed, published in
1769. “If the authority of the legislature be not in one instance equally
supreme over the Colonies as it is over the people of England,” he wrote,
“then are not the Colonies of the same community with the people of England.
All distinctions,” he continued, “destroy this union; and if it can
be shown in any particular to be dissolved, it must be so in all instances
whatever.”32
32[William Knox], The Controversy Between Great Britain and her Colonies Reviewed (London,
1769), 50–51.
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464 Jack P. Greene
Notwithstanding the tenacity with which they held to this point of view,
metropolitan authorities resisted the impulse to take sweeping coercive
measures against the colonies during the late 1760s. Sensing the expediency
of Thomas Pownall’s declaration that “You may exert power over, but you
can never govern an unwilling people,”33 they instead wound up in 1770
taking what they regarded as a conciliatory approach. At the same time
that they indicated that they would seek no new Parliamentary taxes and
guided through Parliament a repeal of most of the Townshend duties, they
retained taxes on tea and sugar products to stand as symbols of Parliament’s
colonial authority.
If anything, the urge toward conciliation during the crisis over the Townshend
Acts was even more powerful in the colonies. This urge was evident in
the grudging willingness of colonial merchants throughout the crisis to pay
an unrepealed Parliamentary tax on molasses. On both sides of the Atlantic,
John Dickinson’s Letters from a Farmer in Pennsylvania, published in 1767,
was certainly the most widely circulated expression of colonial opinion.
Obviously intending to confine the controversy within the narrowest possible
bounds, Dickinson, a Pennsylvania and Delaware lawyer, addressed
his pamphlet exclusively to the issue of the moment – Parliament’s right
to tax the colonies for revenue – and did not consider the wider problems
of the relationship between metropolis and colonies or the distribution of
authority within the empire.
By focusing debate so narrowly on the question of taxation, Dickinson
helped to deescalate the controversy. The widespread acceptance of his definition
of the situation seems both to have inhibited the sort of wide-ranging
discussion of the nature of the metropolitan-colonial relationship that had
occurred during the Stamp Act crisis and to have been in no small part
responsible for the fact that all but a few official colonial challenges to
Parliamentary authority during the late 1760s and very early 1770s were
confined to the single issue of taxation for revenue.
If, during the crisis over the Townshend Acts, most colonial assemblies, as
the Massachusetts legislator Thomas Cushing later observed, “acquiesced in
the distinction between Taxation and Legislation and were disposed to Confine
the dispute to that of Taxation only and entirely to wave the other as a
subject of too delicate a Nature,”34 a number of thinkers in both the colonies
and Britain took a much deeper look at the controversy. As Benjamin
Franklin wrote his son in March 1768, they concluded that “Something
33 Pownall’s speech, April 19, 1769, in Simmons and Thomas, eds., Proceedings and Debates,
3:156.
34William Cushing to Benjamin Franklin, May 6, 1773, in LeonardW. Labaree et al., eds.,
The Papers of Benjamin Franklin (New Haven, 1959–), 20: 204.
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Law and the Origins of the American Revolution 465
might be made of either of the extremes; that Parliament has a power to
make all laws for us, or that it has a power to make no laws for us,” but
that “no middle doctrine” of the kind proposed by Dickinson could be
maintained successfully.35 Although these thinkers regarded their conclusions
as no more than an articulation and rationalization of longstanding
constitutional practice within the empire, they in fact represented a radical
challenge to the metropolitan belief in Parliament’s supremacy over the
whole empire.
This radical interpretation proceeded from three underlying assumptions.
The first was that Parliament’s claims to colonial jurisdiction had to
be proved and could not simply be taken for granted or permitted to rest
on an obviously contrived concept like virtual representation. The second
was that the civil constitution of Britain by no means determined the constitutional
connection between Britain and the colonies. The third was that
the history of the colonies and of their relationship to the metropolis was
the most authoritative guide to the exact nature of that connection.
Adherents of this interpretation put particular emphasis on the history of
the colonies, which seemed to them to make clear that the colonies had never
been incorporated with Great Britain in a legislative capacity. This being the
case, it seemed equally obvious that Great Britain and the British Empire
were distinct political entities. As the Georgia minister Johan Joachim
Zubly explained, the British Empire was a far “more extensive word, and
should not be confounded with the kingdom of Great Britain.” Rather,
it was a “confederal” polity that consisted of both the home islands and
a number of “extrinsic Dominions,” including “several islands and other
distant countries, asunder in different parts of the globe.” As the “head
of this great body,” England was “called the mother country” and “all the
settled inhabitants of this vast empire” were “called Englishmen.”36 But
those phrases by no means implied that the empire was a single state. On the
contrary, each of its many separate entities had a legislative power within
itself, and the several legislative bodies of Great Britain, Ireland, and the
British colonies were entirely independent of one another.
In the view of its proponents, the real virtue of this emerging conception
lay not in its foundations in past practice, but in its appropriateness
for the governance of an extended polity. The “Excellency of the Invention
of Colony Government, by separate independent Legislatures,” Franklin
35 Benjamin Franklin to William Franklin, March 13, 1768, in ibid., 15:75–76.
36 John Joachim Zubly, An Humble Enquiry Into the Nature of the Dependency of the American
Colonies upon the Parliament of Great-Britain (Charleston, 1769), in Randall A. Miller, ed.,
“A Warm & Zealous Spirit”: John J. Zubly and the American Revolution, A Selection of His
Writings (Macon, GA, 1982), 57.
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466 Jack P. Greene
wrote in 1769, was that it permitted “the remotest Parts of a great Empire”
to be “as well governed as the Center.” By guaranteeing maximum autonomy
to peripheral polities and thereby helping prevent wholesale “Misrule,
Oppressions of Proconsuls, and Discontents and Rebellions” in those areas,
the authority of the British monarch seemed to be infinitely expandable,
capable, in Franklin’s words, of being “extended without Inconvenience
over Territories how great soever.”37
This conception of the British Empire as consisting, in Benjamin
Prescott’s words, “of a great and glorious King, with a Number of distinct
Governments, alike subjected to his royal Scepter, and each governed by its
own Laws,”38 also seemed to its proponents to offer a solution to the problem
of the indivisibility of sovereignty. Posed by metropolitan protagonists
during the earliest days of the Stamp Act controversy, the logical dilemma
of an imperium in imperio had remained at the heart of metropolitan resistance
to colonial claims for exemption from Parliamentary authority. According
to the emerging conception of empire among the most advanced defenders
of the colonies, however, sovereignty within the extended polity of the
British Empire resided not in Britain and not in the King-in-Parliament
but in the institution of the monarchy alone. In the imperial realm, according
to these writers, the theory of coordination, of the legal sovereignty of
the King-in-Parliament, did not apply.
To its proponents, this view of the empire as many polities under one
sovereign seemed thoroughly defensible on the basis both of the terms of the
colonial charters and the customary constitutional arrangements that had
grown up since the establishment of the colonies. For more than a century
and a half the colonists, without interruption, had been trusted in good
measure with the management of their internal affairs. Of course, as they
recognized, the doctrine of usage on which their developing conception of
the empire rested so heavily cut two ways. If Parliament had no role whatever
in their early history and if, subsequently, Parliament had not customarily
interfered in their internal affairs, they could not deny that, from the midseventeenth
century on, Parliament had exerted an authority to regulate
colonial trade and later to direct their exterior policy. Furthermore, they
had to admit that, even though Parliament’s authority had sometimes been
applied with great prejudice to the colonies, they had always submitted to
it and thereby consented to it in this external realm.
37 Benjamin Franklin to William Strahan, November 29, 1769, and Franklin, Marginalia
to An Inquiry into the Nature and Causes of the Present Disputes (London, 1769), in Labaree
et al., eds., Franklin Papers, 16:246, 17:322.
38 Benjamin Prescott, A Free and Calm Consideration of the Unhappy Misunderstandings and
Debates (Salem, 1774), 30, which was written in 1768.
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Law and the Origins of the American Revolution 467
Deriving from a century and a half of experience, custom thus seemed to
prescribe a clear allocation of authority within the broad extended polity
of the early modern British Empire, an allocation precisely along the lines
identified by Bland and other colonial writers during the Stamp Act crisis.
The many provincial governments – Ireland in the near periphery and the
several colonies in the distant American periphery – had full jurisdiction
over their own particular local and internal affairs, while the metropolitan
government at the center had authority over all general matters, including
the external relations of the several provincial governments.
In the absence of any impartial tribunal to settle constitutional disputes
between the center and the peripheries, there was, as Pownall lamented
in 1768, “no means of deciding the controversy” by law.39 Unwilling to
give in, metropolitan leaders were, as yet, also unwilling to resort to force.
They still understood that, in the words of Edmund Burke, there was “no
such thing as governing the whole body of the people contrary to their
inclinations,”40 and such considerations were behind Parliament’s decision
in the spring of 1770 to repeal all of the Townshend duties except the tax
on tea. This essentially political resolution of the crisis in effect went back
to the settlement adopted in 1766. That is, it left the issue of the extent
of Parliament’s colonial authority to rest on the Declaratory Act and token
taxes on sugar products and tea, with an implicit understanding that, as in
the case of Ireland, Parliament would not thenceforth levy any further taxes
on the colonies.
Like the Stamp Act crisis, the controversy over the Townshend Acts
had helped illuminate still further the ancient question of how, within the
extended polity of the British Empire, authority was distributed between
metropolis and colonies. To be sure, it produced little change in the
metropolitan position as it had been articulated in 1764–66, while the
conciliatory thrust of both Dickinson’s Letters from a Pennsylvania Farmer
and most of the official colonial protests helped obscure the radical drift of
sentiment among spokesmen in both America and Britain who supported
the colonial side. For, pursuing the logic of the customary constitutional
arrangements that had obtained in the empire over the previous century, a
great many writers between 1767 and 1770 had worked out detailed arguments
to prove what a few colonial thinkers had already implied in 1764–66:
that the British Empire was a loose association under a common king of distinct
political entities, each having its own legislature with exclusive jurisdiction
over its own internal affairs. As in 1764–66, a major constitutional
39 Thomas Pownall’s speech, April 19, 1769, in Simmons and Thomas, eds., Proceedings and
Debates, 3:154.
40 Edmund Burke’s speech, November 8, 1768, in ibid., 3:7.
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468 Jack P. Greene
crisis had thus functioned to intensify, rather than to resolve, differences
in interpretations of the constitutional organization of the empire.
Nevertheless, repeal of the Townshend Acts brought a temporary respite
from the turmoil that had beset metropolitan-colonial relations over the
previous six years. For the next three and a half years, debate over the
respective jurisdictions of Parliament and the several peripheral legislatures
in Ireland and the American colonies fell into temporary abeyance.
Yet, throughout the early 1770s, constitutional relations within the empire
remained troubled. Coincident with the repeal of most of the Townshend
duties, a series of quarrels over the scope of the Crown’s colonial authority
erupted in several colonies, punctuating the so-called period of quiet
during the early 1770s and revealing that the debate over the extent of
the Crown’s prerogative in the colonies was still thoroughly alive. Quarrels
in Massachusetts over the governor’s right to transfer the meetings of the
legislature from the traditional site at Boston to Cambridge and in South
Carolina over the assembly’s authority to issue money from the treasury
without executive approval were particularly serious and resulted in long
interruptions in the legislative process. Like more limited controversies
at the same time in Georgia and North Carolina, these disputes revolved
around metropolitan efforts to use royal instructions to curb the power of
local assemblies.
From the perspective of the crises over the Stamp andTownshend Acts and
the debate about Parliament’s new pretensions to authority over the internal
affairs of the colonies, however, these old questions about the Crown’s
relationship acquired a new and heightened urgency in the colonies. If, as
an impressive number of colonial spokesmen had begun to argue during
the late 1760s, sovereignty within the empire rested not in the King-in-
Parliament but in the Crown alone, then it became especially important for
the colonists to establish the boundaries not just of Parliamentary but also
of royal authority in the colonies. For that reason, colonial defenders in all
of the battles of the early 1770s revealed a pronounced tendency to build
on their own particular local constitutional heritages to argue, as their predecessors
in earlier generations had often done, that, no less than in Britain
itself, the Crown’s authority – the freedom of its “will” – in the colonies
had been effectively limited over the previous century by specific idiosyncratic
constitutional developments in each of the colonies. Again just as in
Britain, these developments had led irreversibly, colonial leaders believed,
in the direction of increasing authority in the hands of the local legislatures
and placing greater restrictions on the prerogatives of the Crown. By this
process, they argued, the rights of the inhabitants in the peripheries had
gradually been secured against the power of the center.
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Law and the Origins of the American Revolution 469
As refined and elaborated during the contests of the early 1770s, this
view of colonial constitutional history powerfully helped reinforce traditional
views of the colonial legislatures both as the primary guardians of
the local rights of the corporate entities over which they presided and, like
Parliament itself in Britain, as the dynamic forces in shaping the colonial
constitutions. Insofar as the constitution of the empire was concerned, this
emphasis on the peculiarity and integrity of the several colonial constitutions
certainly constituted a vigorous defense of constitutional multiplicity
that had profound implications for the ongoing debate over the nature of
sovereignty within the empire. For, together with the emerging conviction
that Parliament had no authority over the colonies, the renewed contention
that the Crown’s authority in the peripheries was likewise limited by local
constitutions – constitutions that had emerged not just out of the colonists’
inherited rights as Englishmen and their corporate or proprietary charters
but also out of local usage and custom – pushed the colonists still further
in the direction of a wholly new conception of sovereignty in an extended
polity like the early modern British Empire. That conception implied that
ultimate constitutional authority – sovereignty – lay not in any institution
or collection of institutions at the center of the empire but in the separate
constitutions of each of the many separate political entities of which the
empire was composed.
IV. CONDITIONS OF LAW IN THE COLONIES
Explicit in these formulations was an underlying preference for a system
of authority in which local law, institutions, officials, and populations had
ultimate authority over local and provincial matters. Nor was this preference
confined to the lawyers, opinion leaders, and other members of provincial
and local political establishments who produced the essays and pamphlets
that laid out the emerging colonial case. Repeatedly, beginning with the
Stamp Act crisis, many crowds, denominated “mobs” by metropolitan representatives
and their supporters, used force and intimidation to prevent
the enforcement of metropolitan laws contrary to local customs and interests.
These popular gatherings, commonly a broad cross-section of the free
population, sometimes wreaked considerable damage on the property and
persons of people associated with those laws. The sackings and burnings
of the houses of Stamp Collector Andrew Oliver and Lieutenant Governor
Thomas Hutchinson in Boston on August 14, 1765, were only the most
dramatic and destructive of the popular protests that occurred in opposition
to the Stamp Act. For a decade thereafter, similar crowds acted as an
adjunct to local officials in resisting the efforts of metropolitan officers to
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470 Jack P. Greene
enforce metropolitan law when it seemed antagonistic to local interests or
at variance with local law.
Such actions occurred in every major colonial city on the mainland and
even in rural Virginia, but they were particularly prevalent in Boston and
in eastern New England, where crowds acting in defense of local interests
often interfered with the enforcement of customs regulations and sometimes
brawled with British soldiers. The “rescue” of the cargo of the merchant
Job Smith’s sloop Polly from custom officials in Dighton, Massachusetts,
on April 7, 1765; the prevention of a customs search of Captain Daniel
Malcolm’s house in Boston on September 24, 1766; the riot over the new
customs commissioners’ seizure of John Hancock’s sloop, Liberty, on June 10,
1768; the confrontation with British troops at the so-called Boston Massacre
on March 5, 1770; the burning in Narragansett Bay of the grounded royal
naval schooner, the Gaspee, by Rhode Islanders on June 10, 1772; and the
Boston Tea Party of December 16, 1773, were the most prominent of these
incidents.
Traditionally, these and similar incidents have been depicted as evidence
of mounting disorder and lawlessness in which the rule of law was steadily
supplanted by rule of the mob. But such characterizations are based on
an anachronistic conception of the law as sovereign command, a modern
conception that derives from a positive jurisprudence that was only just
coming into vogue during the last half of the eighteenth century and would
not gain full ascendancy until the nineteenth and twentieth centuries. For
Britons on either side of the Atlantic during the pre-Revolutionary crisis,
law did not always mean command or will, and legal theorists, judges,
and lawyers did not necessarily associate law with sovereignty. Rather, in
the context of British and British-American legal traditions, law in the
1760s and 1770s was still as much thought of as custom and community
consensus as sovereign command. Eighteenth-century law throughout the
British world was considerably less coercive and considerably more dependent
for its enforcement on community support than most historians once
thought.
Consider the extensive legal limitations on government in late colonial
Massachusetts. Restraint of governmental power and affirmation of the
security of individuals in their lives, liberties, and property were among the
most intense concerns of free colonial British Americans of all social classes.
In Massachusetts they managed, to an extraordinary degree, to construct a
polity that thoroughly reflected these concerns. Because Massachusetts, like
the other colonies, had no permanent police force and only a tiny bureaucracy,
the provincial courts were the only governmental institution with
much coercive power. However, because they wanted to be ruled by law,
not by judges possessing vast discretionary powers that could be turned
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Law and the Origins of the American Revolution 471
to the service of arbitrary rulers, legislators were careful to limit judicial
discretion too. In part, legislators were aided in this task by longstanding
custom, according to which courts never went against precedent. As
in England itself, precedent, usage, or custom had the force of law and
was invariably used to fill the interstices in statute and common law. But
legislators also gave juries wide jurisdiction in both civil and criminal
cases and, even more important, vast authority to find both the law and
the facts in cases in those areas. The virtually unlimited power of juries
to find law in effect meant both that judges had little lawmaking power
and that representatives of local communities assembled as jurors generally
possessed effective power to control the content of substantive law in the
localities.
Other officials, both provincial and metropolitan, had even less power
than judges. Almost entirely without coercive power of their own, they
were, in fact, subject to common law actions for damages whenever they
committed a “wrong” in the exercise of their duties. In effect, then, officials
were unable to exercise their powers without the consent of local communities.
Even the sheriffs and constables responsible for enforcing court
judgments could do so only when local communities were willing to allow
the judgments to be carried out. Colonial Massachusetts was thus a standing
example of one of early modern British political theorists’ favorite maxims:
all government depends on opinion. No less than in Britain itself, Massachusetts,
and presumably all the other British-American colonies, thus
functioned within the venerable Anglo-American tradition of a government
whose limited law enforcement personnel relied on the public to assist them
in implementing the law.
The implications for understanding the origins of the American Revolution,
in Massachusetts and elsewhere, are profound. Law was bicentric, not
unicentric. Generated by Parliament and royal officials and judges in London,
metropolitan law was anemic. With no effective legal institutions at
their command, Massachusetts officials charged with its enforcement were
helpless without the support of the local community. Already weak before
the Revolutionary crisis, metropolitan law became even more so over time,
as local opinion increasingly came to perceive it as in large part a series of
arbitrary measures intended to undermine their traditional constitutional
rights and their economic and political autonomy.
But the decline in respect for metropolitan law did not lead to a breakdown
in respect for law in general. On the contrary, at the same time that
metropolitan law was becoming steadily weaker, local law – those provincial
statutes, judicial precedents, and customs that were upheld by the courts,
grand jury, traverse juries, magistrates, and other institutions that comprised
the colony’s effective legal system – retained its full vigor. The two
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472 Jack P. Greene
essential features of that law were that it was a reflection of community
consensus and that it was under local, not metropolitan, control.
No less than metropolitan law, local law lacked strong formal instruments
of coercion and depended on public support for its enforcement.
Throughout Britain’s American colonies during the eighteenth century,
popular uprisings had repeatedly acted to defend the urgent interests of
communities, both to enforce the will of local magistrates and to compensate
for the inability of constituted authorities to act on their own. In this
regard, the colonies were not all that different from contemporary Britain,
where it was a well-established tradition for people to take matters into
their own hands in two different types of situation: first, when they had no
other means to nullify arbitrary, unconstitutional measures, and, second,
when ordinary legal processes failed to function or did not exist.
So long as popular uprisings served a public function and confined their
actions to harassing those charged with enforcing unconstitutional statutes
of Parliament, they were thus perfectly in accord with British legal traditions
as expressed in the contemporary doctrine that it was legal to resist
unlawful government power. So far from being outside the bounds of law,
popular uprisings actually functioned as the police unit, the posse comitatus,
of local law. No wonder that throughout the colonies between 1765 and
1776 the institutions of provincial and local government almost always supported
such uprisings. No wonder that provincial political establishments
everywhere depended on informal bodies, such as the Sons of Liberty, that
sprang up during the Stamp Act crisis or, beginning in 1774, public associations
and popularly elected committees of safety to enforce non-importation
agreements and other sanctions designed to nullify metropolitan laws and
regulations.
Of course, customs and other metropolitan officials and supporters who
were the victims of public uprisings or patriot committees saw them as
open violations of law – lawless violence. But their perspective was not
that of the majority. Far from being illegal, resistance to metropolitan
law was actually undertaken in defense of local law. American crowds thus
served largely as an auxiliary enforcement agency for locally dominated legal
institutions. Acting in concert and with overwhelming popular support,
the formal instruments of law – juries, magistrates, and the like – and the
informal instrument – the crowd – managed in one incident after another
after 1765 to nullify those many Parliamentary statutes and metropolitan
regulations that were deemed both arbitrary and contrary to the vital interests
of the colonies. In the process they effectively underlined the impotence
of metropolitan agents to enforce any measure opposed by locals.
The rescue of the contents of the sloop Polly provides a case in point.
When Collector of Customs John Robinson in Newport decided in April
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Law and the Origins of the American Revolution 473
1765 that the master of the sloop Polly had probably underreported the
number of hogsheads of sugar imported from Surinam, he chased it up
Narragansett Bay, overtook it at Dighton, searched it, and, after finding
twice the reported amount of sugar, seized it along with the undeclared
part of its cargo for the King. But no local mariners would agree to take the
ship back to Newport where it was to be condemned in court, and Robinson
had to leave the vessel in the hands of two of his subordinates. No sooner had
those subordinates left the Polly to refresh themselves at a shore-side tavern
than locals stole their boat and proceeded to unload the entire cargo; divest
the sloop of its sails, rigging, cables, anchors, and other marine equipment;
and, by boring holes in the hull, render it wholly unseaworthy. When
Robinson heard what had happened, he returned to Dighton with a party
of royal marines and sought to obtain a writ of assistance to enable him to
search for the missing cargo. But local magistrates refused his request on
the grounds that only the Massachusetts Supreme Court could issue such
a writ. Nor could the few marines with him prevent his arrest on a legal
action brought by the Polly’s owner, Job Smith, who sued Robinson for
£3,000 in damages for the loss of his ship and cargo, and Robinson spent
three days in the Taunton jail before his Boston superior could send money
to bail him out,. Robinson subsequently found and seized 8 of Smith’s
more than 120 hogsheads of sugar, refloated the Polly, and succeeded in
having it condemned in Newport. But this incident revealed the limited
extent of metropolitan authority in the colonies and the ways in which
local populations mobilized and functioned as auxiliaries to local officials
in resisting metropolitan efforts to enforce regulations from London.
Nor was the force of metropolitan law in New England in any way
strengthened by the stationing of British troops in Boston after 1768: that
event did not lead to arrests and executions of resistance leaders. Never
empowered to act as a police force, the army remained subject to civilian
control. The result was that it could not be used as an instrument of coercion
and was easily neutralized by the same agencies of local law that had already –
by legal means – rendered metropolitan law a dead letter in the colony.
The neutralization of metropolitan power after 1765 occurred not because
metropolitan representatives were restrained or timid in their use of power,
but because they were immobilized by local law so rapidly and fully.
Although they usually acted in cooperation with or even under the direction
of provincial political leaders and rarely veered out of control, the participants
in crowd actions clearly had opinions, interests, and objectives of
their own that sometimes diverged from those of provincial or local figures
of authority. In several actions, for example, antagonism to impressment
into the British naval service was the crowd’s principal motivation, dramatically
swelling its numbers. But however great the divergence in interest,
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474 Jack P. Greene
opinion, and goals between the leadership and the other participants, these
crowds demonstrated a remarkable solidarity with provincial leaders on the
desirability of preventing the enforcement of metropolitan law whenever it
conflicted with local law and opinion and of retaining local control over all
matters affecting local interests.
V. THE CRISIS OF IMPERIAL AUTHORITY
AND INDEPENDENCE, 1773–76
When Parliament’s passage of the Tea Act in May 1773 revived the dispute
over its colonial authority, colonial resistance to that measure provoked the
crisis that would, in a mere two and a half years, lead to the dismemberment
of the early modern British Empire. At no time during this crisis did either
side show much disposition to compromise. As each quickly took a determined
stand on the position marked out by its most extreme proponents
during the previous crises, the spirit of conciliation that had characterized
the crisis over the Townshend Acts rapidly gave way to complete intransigence.
While the metropolitan political nation refused to back down from
its insistence that the King-in-Parliament was the supreme sovereign of
the empire, the colonial assemblies and the First and Second Continental
Congresses, composed of delegates from the thirteen colonies from Georgia
north to New Hampshire, gave official sanction to views that had been
developed by Franklin and others during the late 1760s and early 1770s
and called for complete colonial autonomy over colonial internal affairs. By
1776, what had begun as yet another crisis over Parliament’s right to tax
the colonies had become a crisis over whether the colonies would become
independent, and the empire foundered over the inability of Britain and
the colonies to agree on a formula for governance that would give colonists
the same legal and constitutional rights as those Britons who remained at
home.
In both Britain and the colonies, supporters of Parliament’s right to
legislate for the colonies insisted, as they had ever since the beginning
of the controversy during the Stamp Act crisis, that the British Empire,
consisting of Great Britain and all its territories, was a single state composed
of one people, living under one constitution, and governed by one monarch.
Reiterating the same central contentions that had underlain their argument
from the beginning, they continued to interpret the controversy as a dispute
over sovereignty. They dismissed the doctrine of no legislation without
representation as “an obsolete maxim” that had no applicability to the
distant parts of an extended polity like the British Empire, and persisted in
asserting that “no maxim of policy” was “more universally admitted, than
that a supreme and uncontroulable power must exist somewhere in every
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Law and the Origins of the American Revolution 475
state.” In the British Empire, they insisted, that power was vested “in King,
Lords, and Commons, under the collective appellation of the Legislature,”
which, as the polemicist James Macpherson phrased it, was merely “another
name for the Constitution of State,” was, “in fact, the State itself.”41
Thus, if the colonists refused obedience to Parliament, they were “no
longer Subjects, but rebels” who, by arrogating “to themselves all the functions
of Sovereignty,” were obviously endeavoring to put themselves “on
the footing of a Sovereign State.” “The question between them and Great
Britain,” then, as Macpherson noted gravely in summarizing the dominant
position within the metropolitan political nation, was nothing less
than “dependence or independence, connection or no connection.”42 With
“no common Principle to rest upon, no common Medium to appeal to,”
wrote Josiah Tucker, the dispute seemed to have no middle ground.43 To
admit any qualification in “the controuling right of the British legislature
over the colonies,”44 its proponents devoutly believed, would mean
nothing less than the abandonment of “the whole of our authority over the
Americans.”45
The colonial position, as it was enunciated in mid-1774 and elaborated
over the next two years, was founded on a complete rejection of the prevailing
metropolitan theory of an omnipotent Parliament. By ignoring the
vital and traditional British constitutional principle of consent, or no legislation
without representation, this theory, supporters of the colonial position
declared, was at total variance with both the ancient rights of Britons and
the long-settled practice of imperial governance within the empire over the
previous century and a half.
No less important, when applied to distant and unrepresented colonies,
this new doctrine, it seemed to the colonists, obviously also represented a
total contradiction to every principle laid down at the time of the Glorious
Revolution. Indeed, by its insistence on exerting a supreme jurisdiction
over the colonies, Parliament seemed not merely to be violating the most
essential principles of the Revolution but actually to have assumed and be
acting on precisely the same high prerogative doctrines against which that
Revolution had been undertaken. Thus, the colonists believed that, if by
41 [James Macpherson], The Rights of Great Britain Asserted Against the Claims of America
(London, 1776), 3–5, 11.
42 Ibid., 3, 11.
43 Josiah Tucker, Tract V, The Respective Pleas and Arguments of the Mother Country, and of the
Colonies, Distinctly Set Forth (Gloucester, 1775), 38.
44 Nathaniel George Rice’s speech, May 17, 1774, inWilliam Cobbett and T. C. Hansard,
eds., The Parliamentary History of England from the Earliest Period to 1803 (London, 1806–
20), 17:1159.
45 Charles Cornwall’s speech, April 17, 1774, in ibid., 17:1213.
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476 Jack P. Greene
resisting Parliament they had become rebels, they were rebels in the same
way and for the same reasons that the people of Britain had been rebels
during the Revolution.
By 1774, few colonial leaders any longer had any doubt that, over the
previous decade, it had been proven clearly and fully that the colonial
assemblies had an exclusive right not only of taxation but of legislation and
that the British Parliament, so far from having a right to make laws binding
the colonies in all cases whatsoever, had no legal right to make any laws in
any way binding on the colonies. Far from being subject to the supreme
authority of Parliament, most American leaders now believed the colonies
had always enjoyed their own supreme legislatures and had always claimed
an exemption from the jurisdiction of the British Parliament. Not the Kingin-
Parliament, wrote the Virginian Thomson Mason, but the “King, at the
head of his respective American Assemblies,” constituted “the Supreme
Legislature of the Colonies.”46
Whether Parliament had any authority even over the external affairs of
the colonies now became a point of contention. Already during the Townshend
Act crisis, some colonial supporters were beginning to suggest that
Parliament had no authority whatsoever over the colonies. By 1774, many
of the most influential tracts, including those written by lawyers James
Wilson of Pennsylvania and Thomas Jefferson of Virginia, unequivocally
took this position. The legislative authority of each of the many independent
legislatures within the empire, including Parliament, wrote Wilson,
was necessarily “confined within . . . local bounds” and could not be imposed
on any of the other areas of the empire without their consent.47 During the
early stages of the crisis of independence, however, most American leaders
seemed still to believe that Parliament did have authority over external
affairs. Alexander Hamilton and John Adams were two prominent writers
who acknowledged that authority derived from the long usage and uninterrupted
acquiescence by which the colonists, since the middle of the
seventeenth century, had given their implied consent to the Navigation
Acts and other trade regulations.
But, if few of their protagonists yet claimed for the colonists external
as well as internal sovereign jurisdiction as independent polities, virtually
everyone now agreed with those people who had begun to argue during
the late 1760s that all the different polities within the British Empire
46 [Thomson Mason], “The British American,” nos. VI–VII, July 7, 14, 1774, in Peter
Force, comp., American Archives (Washington, 1837–53), 4th ser., 1: 522, 544.
47 James Wilson, Considerations on the Nature and Extent of the Legislative Authority of the
British Parliament (Philadelphia, 1774), in Robert Green McCloskey, ed., The Works of
James Wilson (Cambridge, Mass., 1767), 2:741, 743–46.
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Law and the Origins of the American Revolution 477
were distinct, independent of each other, but connected through allegiance
to the same sovereign. On close examination, they had discovered that,
as an entity composed of extensive and dispersed dominions, the empire
was a new phenomenon in British political history that required a form
of governance appropriate to its own circumstances, outside conventional
notions of government. Separated by vast distances, inhabited by different
people, living under distinct constitutions of government, with different
customs, laws, and interests, the empire’s several constitutional elements
could not possibly comprise a single civil state. Rather, each part had to be
considered not as a set of individuals, but as a distinct people. Presided over
by its own legislature, each of these corporate entities was a separate realm.
According to this line of thought, no part of the empire was subordinate to
any other part. As Franklin had remarked in 1770, there was no dependence
among the several parts of the empire, “only a Connection, of which the
King is the common Link.”48
In view of the economic success of the empire, both Americans and
their supporters in Britain regarded it as absurd for the metropolis to risk
so many palpable advantages in pursuit of what increasingly appeared
to them to be nothing more than an academic and irrelevant political
abstraction. Sovereignty might appear to be the grand question in dispute
to the vast majority of the metropolitan political nation. Throughout
the pre-Revolutionary debates, however, most colonial leaders had resisted
such reductionism and had endeavored, unsuccessfully, to focus debate on
the seemingly more tractable and certainly less abstract problem of how
power was or should be allocated in a polity composed of several related
but nonetheless distinct corporate entities. For the colonists, resolution
of their dispute with the metropolis had never seemed to require much
more than the rationalization of existing political arrangements within the
empire.
For them, the “great solecism of an imperium in imperio” seemed, as
the North Carolina lawyer James Iredell declared, to be little more than
“a narrow and pedantic . . . point of speculation,” a “scholastic and trifling
refinement” that had no relevance to the situation at hand. “Custom and
continual usage” seemed to be “of a much more unequivocal nature than
speculation and refined principles.” Notwithstanding the fact that it had
been “so vainly and confidently relied on” by their antagonists, that “beautiful
theory in political discourses – the necessity of an absolute power
residing somewhere in every state” – seemed, as Iredell wrote, to be wholly
inapplicable to a situation involving “several distinct and independent
48 Benjamin Franklin, Marginalia to Matthew Wheelock, Reflections Moral and Political on
Great Britain and Her Colonies (London, 1770), in Labaree et al., Franklin Papers, 17:393.
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478 Jack P. Greene
legislatures, each engaged in a separate scale, and employed about different
objects.”49
Colonial protagonists thus called on the metropolitan government to
abandon its pursuit of the “vain phantom of unlimited sovereignty” and
content itself with “the solid advantages of a moderate, useful and intelligible
authority.”50 As long as all members of the empire adhered to the
customary arrangements that had developed over the previous century and
a half, as long as the king was the supreme head of every legislature in the
British dominions, they suggested, he would always have it in his power to
direct the various governments to the reciprocal advantage of the empire
as a whole and, by his authority to veto laws, could always prevent any
positive law in any part of the empire from injuring the whole.
In their efforts to explain – and to rationalize – existing constitutional
relationships within the empire, colonial protagonists, between 1764 and
1776, had discovered that the locus of authority necessarily had to reside in
each of the separate corporate entities that composed the empire. Contrary to
metropolitan theory as it had developed following the Glorious Revolution
and, more especially, after 1740, authority, they now clearly understood, had
never been concentrated in a sovereign institution at the center. Rather, it
had always been dispersed among the several Parliaments that routinely had
been established to preside over, and express the collective will of, each new
polity within the empire. Indeed, this proliferation of legislatures was the
only way that those traditional English rights that had been confirmed to the
inhabitants of the metropolis by the Revolutionary settlement – especially
that most fundamental right of no legislation without representation –
could be extended to people in the peripheries of a large extended polity
like the early modern British Empire. For the inhabitants of those, by then,
quite ancient corporate entities, English liberty and their specific local
corporate rights were identical. Just as it had been throughout the colonial
era, the integrity of those rights and of the constitutions and assemblies
that embodied and protected them was thus, not surprisingly, the central
theme of colonial constitutional protest during the 1760s and 1770s.
Although this insistence on the autonomy and integrity of the several
colonial constitutions was certainly a defense of constitutional multiplicity
within the empire, the ancient and continuing association of its several
49 James Iredell, “To the Inhabitants of Great Britain,” September 1774, and “The Principles
of an American Whig” [1775–76], in Don Higginbotham, ed., The Papers of James Iredell
(Raleigh, N.C., 1976), 1: 254, 264–67, 332.
50 Jonathan Shipley, A Sermon Preached before the Incorporated Society for the Propagation of the
Gospel in Foreign Parts (London, 1774), in Paul H. Smith, comp., English Defenders of
American Freedom, 1774–1778 (Washington, 1972), 38.
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Law and the Origins of the American Revolution 479
separate polities clearly implied the existence of a larger imperial constitution,
a constitution of the empire. Though this constitution was obviously
based on and expressed the same fundamental constitutional principles, it
was emphatically not identical to the British constitution. By the 1760s the
British constitution had become a constitution of Parliamentary supremacy.
But the emerging imperial constitution, like the separate constitutions of
Britain’s many overseas dominions, remained a customary constitution in
which, according to the colonial point of view, sovereignty resided not in
an all-powerful Parliament but in the Crown, the power of which had been
reduced considerably over the previous century by the specific gains made
in the direction of self-determination by each representative body within
the empire.
Regarding any diminution of Parliamentary sovereignty as a prelude
to the eventual loss of control of the colonies that seemed to be associated
so intimately with Britain’s rise to world power, the vast majority of
the metropolitan political nation found it impossible to accept such arguments.
In addition, from the perspective of Britain’s own internal constitutional
development during the previous century, colonial theories about the
organization of the empire seemed dangerously retrograde. By placing the
resources of Ireland and the colonies directly in the hands of the Crown and
beyond the reach of Parliament, those theories appeared to strike directly at
the root of the legislative supremacy that, for them, was the primary legacy
of the Glorious Revolution.
In 1774, the Coercive Acts produced an astonishing union among the
colonies. So alarmed were the colonists that those measures would deprive
them of “every essential privilege” that, as the Massachusetts Committee
of Correspondence wrote Franklin in the spring of 1774, “the whole
Continent” was united “in Sentiment and . . . Measures.”51 Already, in the
initial response to those acts, a few writers, notably Thomas Jefferson of
Virginia and William Henry Drayton of South Carolina, pointed out that
many of the most egregious colonial grievances were attributable directly
to the Crown. By thus raising the old question of the extent of the king’s
authority in the colonies, a question that had been given new force by the
many local controversies of the early 1770s, they thereby both issued a new
challenge to the Crown’s long-standing claim for more extensive prerogative
in America than it could legally exercise in Britain and, implicitly at
least, questioned the wisdom and viability of the emerging argument that
a continuing connection with Britain through the Crown could provide an
adequate basis for the security of colonial rights.
51 Massachusetts Committee of Correspondence to Franklin, March 31, 1774, in Labaree
et al., eds., Franklin Papers, 21: 165–66.
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480 Jack P. Greene
As it became increasingly clear in 1775–76 that Parliament would not
abandon its claims to imperial supremacy and that George III was every
bit as committed to those claims as was the rest of the British political
nation, more colonials began to think of a new course of political action
that included both independence from Britain and the creation of a grand
American commonwealth. Notwithstanding the old conviction that every
colony was so fond of its own distinctiveness that they could never unite
into one state, they more and more came to the conclusion that there was
no other way for them to preserve their legal and constitutional rights and
liberties. Whether or not independence would be the first step toward the
establishment of a viable union that would enable them to resolve the problem
that had brought the British Empire to grief, the problem of how in an
extended polity authority should be distributed between center and peripheries
was still an open question when the colonies declared independence
in July 1776.
CONCLUSION
Driven by the specter of Parliamentary taxation to investigate the constitutional
organization of the empire, American colonials quickly turned in
the 1760s to the defense, fully elaborated during the colonial era in efforts
to limit the Crown’s prerogative powers in the colonies, that they were
governed by a customary imperial constitution based on the ideas of principled
limitation and government by consent. Metropolitan officials refused
to take the colonial case seriously, but this refusal does not mean that they
were right about the law. Constitutional arrangements within the British
Empire were far from precise, and in the debates of the 1760s and 1770s,
each side could marshal effective legal arguments in behalf of its position.
In this unsettled situation, constitutional questions were by no means as
clear as they were said to be in London.
The early modern British Empire was by no means yet a modern unitary
state. Imperial institutions in the colonies had little coercive power and
depended for their effectiveness on the consent of local populations. Authority
within the empire had long been dispersed into the hands of authoritative,
powerful, and largely autonomous local institutions. Not dependent
for their effectiveness on the support or the acquiescence of a central authority
and highly resistant to central control, these institutions were regarded,
both by those who composed them and those whom they served, as largely
independent agencies of constitutional power and authority. In this diffuse
and decentralized political entity, institutions on the periphery were as free
to determine the nature of the constitution as authorities at the center.
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Law and the Origins of the American Revolution 481
When Thomas Jefferson and his colleagues in the Second Continental
Congress produced the Declaration of Independence in the summer of 1776,
they made extensive use of natural rights theory. In that way the Declaration
represented something of a departure from the impressive political tracts
and state papers they had been producing over the previous twelve years.
Natural rights theory had not been absent from that literature, but it had
never been much more than a complementary strain to their principal argument,
which rested on law. Specifically, that argument, following logically
from the colonists’ own heritage of legal and constitutional thought over the
previous century and a half, was largely founded on the English jurisprudential
conception of government as limited government and of the British
constitution as a constitution in which law confined the discretion or will
of monarchs, judges, and legislators; a conception that, even after the rise of
the doctrine of Parliamentary supremacy, still had much vitality in Britain
itself. Indeed, much of this literature was the work of colonial lawyers.
Richard Bland, James Otis, Daniel Dulany, John Dickinson, James Wilson,
Thomas Jefferson, John Adams, Alexander Hamilton, Charles Carroll
of Carrollton, James Iredell – these were only the most prominent lawyers
who contributed to the colonial case. Even more impressive, lay leaders,
merchants, printers, and planters, including Stephen Hopkins, Benjamin
Franklin, Samuel Adams, William Hicks, and William Henry Drayton,
displayed a deep familiarity with the common culture of legal thought and
constitutional culture that made the entire English-speaking world into a
single discursive community. If, as the controversies of the 1760s and 1770s
dramatically underline, that world did not always agree on the definition
of crucial concepts, it did possess a common vocabulary. Throughout those
controversies, colonial spokesmen demonstrated extraordinary learning in
legal and constitutional matters, conducting their case like a common law
litigation in the court of Anglophone public opinion. Displaying a tough
law-mindedness, they had no doubt that the law, as they knew it from their
metropolitan heritage and their own experience, could be marshaled in their
favor and, for that reason, never hesitated to make law the foundation for
their view of the constitutional organization of the empire.
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14
confederation and constitution
jack n. rakove
In both its origins and principal consequences, the American Revolution
was a profoundly constitutional phenomenon. It began in the mid-1760s as
a characteristically Anglo-American dispute over the extent of the rights of
self-government that the colonies could claim in the face of new assertions
of Parliament’s legislative jurisdiction over America. When the ensuing
dispute proved irresolvable, Americans declared their political independence
from Britain and simultaneously embarked on a radical experiment in
constitution-making that thereafter distinguished their ideas and practices
of governance from those they had once shared with the mother country. A
decade later, dissatisfaction with the state and federal constitutions adopted
in the mid-1770s led to the calling of the Federal Convention that met at
Philadelphia in May 1787. The new Constitution it proposed after four
months of strenuous deliberation reflected a careful reconsideration of what
one of its leading authors, James Madison, called “the vices of the political
system of the United States,” vices that had become evident only through
the experience of self-government since 1776. The ensuing struggle over
its ratification in turn gave rise to an extended public debate that revealed
how far some Americans had moved in their thinking over the previous
decade and how closely others adhered to beliefs that had led the colonists
to revolt in 1776.
The revolutionaries themselves were deeply conscious of the significance
and novelty of these accomplishments. No one expressed this awareness
better than John Adams. In the spring of 1776, Adams snatched time from
his numerous duties in the Continental Congress to write a short pamphlet
sketching the constitutions of government that the colonies should
begin drafting. Adams closed his Thoughts on Government by rejoicing at
being “sent into life, at a time when the greatest law givers of antiquity
would have wished to have lived.” When else had a people enjoyed “full
power and a fair opportunity to form and establish the wisest and happiest
482
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Confederation and Constitution 483
government that human wisdom can contrive?”1 Thomas Jefferson agreed.
A few weeks before Congress saddled him with the task of writing the
Declaration of Independence, he wondered whether Virginia’s congressional
delegates could do better service by being recalled home to work on the
province’s new constitution. “In truth it is the whole object of the present
controversy,” Jefferson observed; “for should a bad government be instituted
for us in future it had been as well to have accepted the bad one
offered us from beyond the water without the risk and expense of contest.”2
Eleven years later Alexander Hamilton struck a similar note in opening
The Federalist: “It has been frequently remarked that it seems to have been
reserved to the people of this country, by their conduct and example, to
decide the important question, whether societies of men are really capable
or not of establishing good government from reflection and choice, or
whether they are forever destined to depend for their political constitutions
on accident and force.”3
In both 1776 and 1787, this sense of opportunity and exultation masked
the problematic circumstances under which the enterprise of constitutionmaking
proceeded. The conventions that wrote the first state constitutions
were simultaneously preoccupied with an urgent array of legislative duties
required to mobilize their societies for war. Their innate inclination to create
strongly republican or “popular” governments that vested a near monopoly
of authority in the legislature hardly accorded with the immediate and
urgent circumstance that Americans were waging war against the great
power of the Atlantic world. A decade later, the advocates of national constitutional
reform faced the daunting challenge of proposing a wholesale
transformation of the structure of the Union after three successive efforts
to amend the Articles of Confederation had failed to attain the requisite
approval of all thirteen states. Their solution to this problem was to ignore
the formal rules of amendment and hope that Americans would accept the
novel procedures for ratification that the Federal Convention proposed in
their place.
Of course, in the end, the Convention did meet, and under the stern
eye of its presiding officer, George Washington, managed to hammer out
a Constitution. That Constitution was in turn subjected to ten months of
1 [John Adams], Thoughts on Government (Philadelphia, 1776), in Philip Kurland and Ralph
Lerner, eds., The Founders’ Constitution (Chicago, 1987), I, 110.
2 Thomas Jefferson to Thomas Nelson, May 16, 1776, in Julian P. Boyd et al., eds., The
Papers of Thomas Jefferson (Princeton, NJ, 1950–), I, 292.
3 Alexander Hamilton, Federalist 1, in Benjamin Wright, ed., The Federalist (Cambridge,
MA, 1961), 89.
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484 Jack N. Rakove
public debate, at the end of which it had been ratified by eleven states – two
more than the Convention had required for the Constitution to take effect.
Whether or not this decision was in some sense “illegal” – as some intrepid
scholars have alleged – it was widely recognized as legitimate, and by the
winter of 1789 elections were well under way for the new government that
would go into operation in March.
The adoption of the Federal Constitution in 1787–88 is often seen, with
good reason, as the fulfillment of the Revolution. It prevented the revolutionary
alliance that secured national independence in 1783 from devolving
into a set of petty, bickering republics or regional confederacies. It laid the
basis for the orderly settlement and development of the trans-Appalachian
interior, the great territorial prize that was secured with the peace treaty
of 1783. And it marked the point of departure for the ongoing constitutional
conflicts that have been a hallmark of American law and politics ever
since. For as the disputes that erupted in the 1790s quickly made clear,
the boundary between the realms of the political and constitutional proved
difficult to discern and easy to cross. Disputes over policy repeatedly escalated
into quarrels over the meaning of relevant constitutional clauses, and
the existence of a written Constitution adopted in living memory made it
easy for partisans and polemicists to accuse their opponents of trampling
constitutional values in the name of party advantage.
Any event that embodies so many consequences and implications naturally
acquires an aura of historical inevitability. Over two centuries later,
American political culture still pays homage to this conviction by portentously
calling this epoch “the Founding” and its leading lights “the
Founding Fathers.” This in turn makes it difficult to restore a due measure
of contingency to key developments of the Revolutionary era. Back
in the 1760s, the colonists had not set out to foment crises that would
enable them to seize their independence. They reacted instead to a set of
British miscues and miscalculations that produced the opposite result of
what the successive ministries of George III intended. Nor did Americans
think they were inventing a new model of constitutionalism, relying on
the supreme authority of a single text, when they began writing new constitutions
of government in 1776. They were driven to write constitutions
because they were anxious to restore legal government; only afterward did
they begin to ponder the implications of what they had done. So, too, the
advocates of federal constitutional reform in the mid-1780s did not set out
to establish a national Leviathan with powers akin to those once claimed by
Parliament. Had any of the modest amendments to the Articles of Congress
proposed before 1787 ever been ratified, the case for calling a general convention
like the one that gathered at Philadelphia would have been far
more difficult to make. Even then, many sensible observers believed that the
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Confederation and Constitution 485
Philadelphia convention would be a forum more for discussion than concrete
action.
There was, nevertheless, a deep logic to the constitutional transformation
that unfolded in America after 1765. The absence of a determinate imperial
constitution specifying the respective powers of the empire and the rights of
its colonies was one reason why the controversy that began with the Stamp
Act proved so resistant to resolution. Both sides appealed to principles that
were embedded within a common constitutional heritage and represented
equally legitimate strands of that tradition. Once the colonists seized the
opportunity to begin writing constitutions, they began to discover that
documents used to establish government could also be used to limit its
authority. But the question of how power could be both effectively constituted
and safely limited could not be resolved by appeal to principle alone.
It required reflecting on experience, and that was exactly what a decade of
self-government after 1776 provided.
I. FRAMING THE CONFEDERATION
The controversy that ultimately led Americans to declare independence
in July 1776 began as a dispute over taxation. In the Stamp Act crisis of
1765–66, the colonists denied that they could ever be taxed by a Parliament
in which they were not, nor ever could be, represented. This dispute
quickly escalated into a debate over the location of sovereignty, after the
Declaratory Act of 1766, adopted to ease the repeal of the Stamp Act,
asserted that Parliament retained jurisdiction over the colonies “in all cases
whatsoever.”4 Most colonists conceded that Parliament could continue to
regulate imperial commerce. But by 1774, the prevailing American position
was that the separate colonial assemblies were the virtual equivalents of
Parliament.
This claim would not have converted the individual American provinces
into fully sovereign governments, however. Prior to 1774, no one would
have regarded the colonies as sovereign in the conventional sense of the term.
Although they had long enjoyed substantial legislative autonomy, their
powers of government were derived from the British Crown, which retained
the legal right not only to annul colonial legislation but even to revoke the
charters under which it had organized the separate colonial governments.
Had it been the Crown, rather than Parliament, that altered the royal charter
of government of 1691 with the Massachusetts Government Act in 1774,
4 Danby Pickering, ed., The Statutes at Large (Cambridge, Eng., 1762–1807), XXVII,
19–20.
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486 Jack N. Rakove
Americans would have found it more difficult to protest that the King and
his ministers were acting either unlawfully or unconstitutionally.
Along with the Boston Port Act and the Administration of Justice Act,
the Massachusetts Government Act that Parliament passed in response to
the Boston Tea Party provoked the crisis that led to the calling of the First
Continental Congress in 1774. From its inception, Congress managed the
external relations of the united colonies it represented. After civil war
erupted outside Boston in April 1775, Congress converted the Massachusetts
provisional forces into a Continental Army commanded by George
Washington. In effect, foreign affairs and war, the two principal markers
of sovereignty in the international sense of the term, were effectively
concentrated at the inter-colonial or national level of governance. As the crisis
deepened, local resistance leaders grew anxious to replace the extra-legal
committees and conventions that had effectively ruled since 1774 with
legal governments. But they did so only after securing permission from
Congress, not by invoking the sovereign authority of their own people.
The state constitutions were hastily drafted by provincial conventions
that had other pressing duties to perform. Some thought was given to
submitting these documents to the people for discussion, perhaps even for
approval, but the notion that a constitution had to be ratified by a sovereign
people was at this point no more than a theoretical glimmer. From the start,
some Americans believed that the received conception of a constitution was
inadequate. “The truth is, the English have no fixed Constitution,” observed
the anonymous author (possibly Thomas Paine) of Four Letters on Interesting
Subjects.5 Because the first constitutions were drafted by bodies that were also
acting legislatively, it became possible to argue that these charters had no
greater authority than other statutes. The distinction between a constitution
and a statute was not firmly established until the Massachusetts constitution
of 1780 was drafted by a convention called for that sole purpose and then
submitted to the towns for their approval.
At the national level, constitution-making was a more protracted process.
Individual members of Congress began thinking about the problem
as early as 1775, when Benjamin Franklin and the Connecticut delegates
prepared drafts of a confederation. But Congress balked at action until
June 1776, when it appointed three committees to prepare a declaration of
independence, a plan for foreign treaties, and a confederation. The last committee,
with one member from each state, was chaired by John Dickinson,
the prominent Pennsylvania moderate who resisted declaring independence
and feared the potential for disputes among the states. It delivered its report
in early July, and Congress debated it actively into August. Then the subject
5 Four Letters on Interesting Subjects (Philadelphia, 1776), in Kurland and Lerner, eds.,
Founders’ Constitution, I, 637.
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was postponed, not to be resumed until the spring of 1777, and then tabled
again.
Three issues appeared intractable: the rule of voting in Congress, the
formula for apportioning common expenses among the states, and the control
of interior western lands. In each case, palpable interests divided the
states into well-defined blocs. In 1774, Congress had adopted a rule that
gave each state an equal vote. That decision made sense in the absence of
reliable data about population and property; initially, it also seemed more
important to reach decisions by consensus than by simple majorities. Once
it became evident that a lengthy war loomed, however, delegates from
the larger states complained of the inequity of giving each state an equal
vote when their own constituents would have to contribute more manpower,
money, and mat´eriel to “the common cause.” Delegates from less populous
states insisted that they were committing “their all” just as much as the
larger states, but the “all” of some states was obviously larger than the “all”
of others. In the case of apportionment of expenses, Northern and Southern
delegations disagreed over whether the best measure of wealth was simple
acreage (which would impose heavier burdens on Southern states) or the
value of improved land (which would penalize the more intensively farmed
lands of the North). As to interior lands, those states whose western limits
were bounded by the terms of their charters argued that unappropriated
“waste” lands in the interior should become a common national stock that
would help defray the expenses of the war. States with claims to the interior,
however, were reluctant to yield them to the Union.
These three issues delayed completion of the drafting of the Articles until
late 1777. Then, hoping that the recent victory at Saratoga would bring
France into the war as an American ally, the delegates mustered the will to
complete the work. Even then, decisions were grudgingly accepted, rather
than fashioned through compromise. The small states gained their point on
voting. The landed states prevented Congress from acquiring authority over
western lands. On the difficult question of expenses, the delegates approved
an impracticable New Jersey scheme to allocate the financial burdens of the
Union among the states on the basis of the assessed value of improved
lands, a formula that could never be implemented in wartime. In the event,
opposition from the “l(fā)andless” states of Maryland, Delaware, and New
Jersey delayed ratification of the Articles of Confederation until March 1,
1781.
Throughout these discussions, little was said about the abstract question
of the location of sovereignty in the federal system. At first glance, the lack
of attention to this issue seems surprising. Given the central place that
claims about sovereignty had occupied in the imperial debate, Americans
might have been inclined to ask just where ultimate authority would reside
in the hybrid federal system they were creating.
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488 Jack N. Rakove
The one exception to this silence occurred in May 1777, when Thomas
Burke, a newly arrived member from North Carolina, forced the subject to
the attention of Congress. Burke’s inexperience did not prevent him from
suspecting that his colleagues, either by design or inadvertently, might
foster designs to encroach on the authority of the states. He accordingly
proposed the addition of an article affirming that each state would retain “its
sovereignty, freedom, and independence, and every power, jurisdiction, and
right, which is not by this confederation expressly delegated” to Congress.
After a somewhat confused debate, Congress adopted this formula as the
second Article of Confederation.
Its approval, however, could not unilaterally define the location of
sovereignty in the American system in any way that would have made
sense to eighteenth-century thinkers. For the orthodox understanding of
sovereignty remained closer to the potent, awesome definitions worked out
by thinkers like Jean Bodin and Thomas Hobbes in the late sixteenth and
seventeenth centuries and codified by SirWilliam Blackstone in his Commentaries
on the Laws of England. The problem of sovereignty, in their account,
was essentially a matter of locating the ultimate and indeed absolute source
of authority within a polity. The powers attributed to the sovereign could be
classified and analyzed, but the idea that these powers could be distributed
broadly among different governments within a single polity remained difficult
to grasp. The traditional language of sovereignty was a language of
absolute, ultimate, and final power.
Americans had been groping to fashion a different dialect since they
first tried to explain why they were not subject to Parliament. They did
not really wish to deny the supremacy of Parliament as recognized by the
Glorious Revolution of 1688. They simply wanted to explain why it could
not bind them, even should they remain part of the same polity within which
Parliament was the highest lawmaking authority. But during the crisis of
1774–76, they had effectively assumed every sovereign power that mattered,
declining to renounce their allegiance to the Crown – their original and
proper bond to the empire – until King George III had made clear his own
commitment to repression rather than negotiation.
Those powers, however, had been divided tacitly and pragmatically
between the novel institution of Congress and the emerging states. To
Congress had fallen the responsibility for diplomacy and war, while the
states retained full legislative authority over their “internal police,” as matters
of domestic governance were commonly described. Neither before the
Articles were ratified nor after could Congress cast its decisions in the
language of statutes. The most it could do was to adopt “ordinances,” a
legal term of art that ranked somewhere below statute in the hierarchy of
authority, and even then to regulate only matters over which the law of the
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states did not extend. In its dealings with the states, Congress relied on recommendations
and requisitions that it expected the separate legislatures to
implement. As a system of federalism, then, the theory of the Confederation
was that Congress would propose and the states dispose. But this disposal
did not mean determining whether Congress had acted rightly or wrongly.
It did not presuppose that the states were entitled to reject Congressional
decisions as a matter of preference or policy. It assumed, rather, that only the
states could finally determine how best to implement particular Congressional
decisions within their boundaries. In this sense, the state legislatures
were to act as administrative auxiliaries of Congress, while Congress itself
was less a legislative body than a collective form of executive power (drawing
on that strain in separation-of-powers thinking that treated war and
diplomacy as essentially executive functions).
The war sorely tried this assumption and found it wanting. But in the
mid-1770s it seemed eminently reasonable. For one thing, Americans could
not fashion a national administrative apparatus out of whole cloth, especially
under the urgent conditions of the early years of the war. For another, it
was na¨ıve, but not implausible, to think that the states would patriotically
do what was expected of them. This assumption reflected the republican
enthusiasm with which Americans acted in 1775 and 1776, years that
became a rosy memory the longer the war went on.
In many ways, then, Americans initially approached the problem of locating
sovereignty within a federal system as a pragmatic matter of dealing
with the exigencies of war and the legacy of colonial governance. A Congress
that typically muddled along with two to three dozen members in attendance,
and high rates of turnover, lacked the capacity to operate as a genuine
national government. There was no political infrastructure in place to coordinate
its activities with those of the states. Congress conducted much of
its administrative business through numerous committees and a handful
of executive boards with specific functions. Not until 1781 did it begin to
establish executive departments.
II. EFFORTS AT AMENDMENT
So long as the Articles remained unratified – as they did until March 1,
1781 – Congress could still be classified as a revolutionary body. Its authority
was political, not constitutional; its ability to direct the struggle against
Britain depended on the survival of the Continental Army and the capacity
of the state governments to command the allegiance and support of their
constituents.With each passing year, patriot leaders spoke more frequently
about the mounting “disaffection” of the people, but by that they meant war
weariness ,rather than disloyalty. There were significant pockets of loyalist
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490 Jack N. Rakove
strength in individual states, but at no point after 1776 were patriot leaders
in the position of losing political control of the state governments.
After 1780, two critical developments encouraged a rethinking of the
structure of federalism envisioned by the Articles of Confederation. The
first stemmed from the difficulties that Congress and the states jointly
experienced in raising adequate revenues and supplies to sustain the army
in the field. The second derived from the issue that posed the chief obstacle
to the ratification of the Articles of Confederation: the control of interior
western lands that different states claimed under their original colonial
charters.
Under the Confederation, Congress had no independent authority to
levy taxes. This critical omission was justified for two reasons. First, it comported
with the fundamental constitutional principle that taxes could be
levied only by the people’s directly elected representatives – and members
of Congress, appointed as they were by the state legislatures, were only delegates
of delegates. Second, determining which modes of taxation would
prove most productive within particular localities during the dislocations of
the war was obviously a task beyond the competence of Congress. The Articles
accordingly authorized Congress to impose requisitions for revenues on
the states, which in turn would levy the appropriate taxes. In practice, the
spiraling demands of the war outran both the administrative capacities and,
to some extent, the political will of the states. Congress accordingly relied
on its power to issue bills of credit, which became its preferred method
of financing the war. The inevitable consequence was a depreciation of the
specie value of this paper currency, exacerbated by wartime shortages that
drove prices relentlessly higher. In 1779, with the value of paper currency
to specie approaching 200:1, Congress resolved to cease emitting bills of
credit and instead to require the states to provide “specific supplies” of food,
clothing, and other mat´eriel needed by the army.
One long-term solution to the financial woes of the federal Union, some
thought, could spring from the establishment of a national domain on the
“waste” lands north of the Ohio River – “waste” in the sense that they
were occupied only by native American peoples who, by the standards of
Euro-American agriculture, were not using these lands productively. In his
first draft of articles of confederation (June 1776), John Dickinson proposed
giving Congress authority to limit the states’ western claims, resolve interstate
disputes over boundaries and other matters, and control relations with
Indian tribes. But during the ensuing months of intermittent discussion, a
bloc of “l(fā)anded” states had gained and held the narrow advantage on these
matters. Congress was given no authority to limit the states’ western boundaries.
The procedures for mediating interstate disputes made Congress only
an agency for convening courts to be appointed by the contending parties.
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And the clause governing relations with Indians came saddled with qualifications
that seemingly gave Congress jurisdiction, for the time being, only
over Indians living beyond any state’s boundaries – “not members of any of
the States” – that is, with no Indians at all.
Early in 1780, however, New York launched an initiative to induce states
with western claims to surrender their title to Congress. New York’s own
claims to interior lands were problematic. Unlike other colonies, New York,
acquired by conquest from the Dutch in 1664, had no charter specifying
its boundaries. The successor state’s western claims instead rested on the
former royal colony’s historical relationship with the Five (later Six) Nations
of the Iroquois confederacy, and the fiction that the Iroquois in turn were
overlords of other native peoples in the Ohio Valley. To secure the territory
it wished to retain – essentially everything now lying between Albany
and Buffalo – the New York legislature ceded its problematic Ohio Valley
claims to Congress. It did so, in part, for narrow purposes of state policy.
But New York’s political leaders, including Governor George Clinton, also
had nationalist inclinations, and they hoped this cession would break the
impasse over ratification of the Articles of Confederation.
The principal target of this maneuver was Virginia, whose own claims
rested on the original 1606 charter of the antecedent Virginia Company.
If New York grounded its claims on the colony’s fictive relationship with
the Iroquois, Virginia relied on legal fictions of the right of discovery and
ignorance of North American geography. But as with New York, key Virginia
leaders were willing to cede their state’s extravagant claims above
the Ohio to Congress, if the state could bar various groups of speculators
from retaining objectionable land purchases they had made from assorted
Indians prior to the Revolution. By late 1780, the Virginia legislature was
preparing its own cession of lands lying north of the Ohio and west of
Pennsylvania. This in turn cleared the way for Maryland to ratify the Articles.
Although another three years passed before the Virginia cession was
accepted, it was now evident that Congress eventually would have its own
territory to govern.
Taken together, these two developments – the perceived need for independent
sources of revenue and the prospective creation of a national domain –
suggested that the powers and purposes of the Union might evolve beyond
the expectations of 1776. A month before the Articles took formal effect,
Congress submitted its first proposed amendment to the states, seeking permission
to collect a 5 percent impost duty on foreign goods. This measure
was seen not as a source of operating revenue, but as security for foreign
loans. Governance of a national domain would make Congress more than a
body to coordinate the struggle for independence. It would make key aspects
of the economic and social development of the country objects of national
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492 Jack N. Rakove
concern, and necessarily raise the question of the future constitutional status
of interior territories.
There were other constitutional dimensions to both issues. Like the original
Articles of Confederation, the impost amendment required approval of
all thirteen legislatures, and this proved impossible to attain. In 1782 Rhode
Island rejected the impost, and Virginia subsequently rescinded its ratification.
This first effort at amendment thus demonstrated that the unanimity
rule for ratification imposed a formidable obstacle to any constitutional
reform. The cession of western territories, on the other hand, revealed that a
Confederation premised on the explicit delegation of power to the national
government could not wholly cabin the expansion of national authority.
Although many framers of the Articles had expected such cessions to occur,
they made no explicit provision for the acquisition of territory or its governance.
The cessions that created the national domain, therefore, had notably
expanded the authority of Congress, but arguably by extra-constitutional
means.
The decisive Franco-American victory at Yorktown in October 1781 did
not free Congress of its financial problems. It still had major obligations to
public creditors at home and abroad, to unpaid soldiers, and to the officer
corps of the army. In 1781, Congress appointed the wealthy Philadelphia
merchant and former delegate, Robert Morris, as its first superintendent of
finance. Morris had played a critical role in keeping the army in the field
during the year of victory, at times relying on his own private credit. In July
1782 he drafted an ambitious plan to establish public credit by asking the
states to grant Congress permanent land, poll, and excise taxes. But Morris
had dogged detractors in Congress, some of whom believed he had used
his public office to garner private profits exceeding what even the tolerant
standards of the era allowed. Morris tried to advance his program first by
mobilizing political support from public creditors and then, more riskily,
by abetting discontent among officers at the main army encampment at
Newburgh, New York. In this scheme, the so-called Newburgh Conspiracy,
Morris may have had the assistance of Alexander Hamilton, formerly aidede-
camp to General Washington, now a New York delegate to Congress.
But Washington himself broke the officers’ defiant mood with a single
dramatic appearance at a meeting called to discuss their grievances. In
the end, the Morris program failed to muster a majority within Congress.
Instead on April 18, 1783, the delegates approved a compromise set of
measures that included a second request for an impost, the substitution of a
population rule for apportioning expenses among the states for the unwieldy
assessment set down in the Articles, and the laying by the states of taxes
dedicated to the use of Congress. The key architect of this proposal was
James Madison of Virginia. This package would also require approval in its
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entirety by all the state legislatures, which would deliberate in peacetime
as constituent members of the new federal republic whose independence
was internationally recognized by the Treaty of Paris ending the Revolutionary
War.
III. THE “CRITICAL PERIOD” AND MADISON’S CRITIQUE
The years that immediately followed have long been called “the Critical
Period,” a label bestowed by the historian John Fiske in 1888, during
the centennial of the Constitution.6 Scholars have ever since debated just
how “critical” this period truly was ever since. Some of Fiske’s successors,
for example, disparaged his label as an echo of the abuse the supporters
of the Constitution had heaped on the Confederation. In their view, the
adoption of the Constitution was a virtual coup staged by an elite anxious
to regain power from insurgent democratic forces and upstart leaders in the
states. Given that the country was recovering from an eight-year war, their
skepticism has merit. Yet the fact remains that in late 1786 a movement
did coalesce to call a plenary convention to revise the Articles; that its
leaders persuaded state legislatures and citizens alike that the proposed
Constitution deserved serious consideration; and that within ten months of
public deliberation, eleven of the thirteen states had ratified the proposed
Constitution. Political activity and constitutional change of this kind could
not have occurred had Americans believed that the nation was enjoying
sound governance, political stability, and prosperity.
Three sets of factors explain how this transformation became possible.
The first, and perhaps most prosaic, begins with the various difficulties
that beset Congress after 1783, which fed a growing perception that the
Confederation was verging toward “imbecility.” These were the essential
problems of federalism, that is, of the division of authority between the
Union and the states, and the adequacy of the powers that Congress possessed.
A second set of difficulties involved the internal governance of the
states. These were problems of republicanism, that is, of the nature of the
constitutions established at the outset of the Revolution and of the capacity
of American citizens to act with the virtuous restraint that republican theory
demanded. These concerns loomed particularly large in the thinking
of James Madison, the one political actor who most shaped the agenda of
constitutional reform. A third set of concerns could be subsumed under the
broad heading of federalism, but merits separate mention. These required
defining the essential interests that the national government should pursue,
6 John Fiske, The Critical Period of American History, 1783–1789 (New York and Boston,
1888).
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494 Jack N. Rakove
identifying the principal threats to those interests, and asking what kind of
nation-state the emerging American imperium should form. These concerns
involved the demands of state-building, and those who took them most seriously
included GeorgeWashington and his former aide-de-camp, Alexander
Hamilton.
With the coming of peace in April 1783, Americans were eager to restore
old channels of trade and develop new ones wherever possible. Two adverse
developments soon threatened the interests of American merchants and
artisans. Britain closed its West Indian ports to American ships, thereby
reserving to its own merchants the profits of carrying American foodstuffs
to the slave economies of the Caribbean. And long-desired British goods,
carried in British ships, flooded American harbors, often underselling local
artisans. In response, Congress in April 1784 framed two further amendments
to the Confederation to follow the revenue measures it had proposed
a year earlier. Carefully drawn, they would have enabled Congress to impose
moderate restrictions on foreign merchants from nations pursuing discriminatory
commercial policies against the United States. The essential purpose
of these measures was to buttress the bargaining position of John Adams,
the American minister to the Court of St. James, as he vainly sought to
restore favorable commercial relations with Britain.
After submitting these amendments to the states, Congress adjourned for
the first time since September 1775. To manage whatever national business
occurred, it left behind a Committee of the States, comprising one member
from each state, as provided by the Articles. But with little business to transact,
that committee also dissolved, leaving only the secretary of Congress,
Charles Thomson, and a handful of executive officers to constitute a skeletal
national government. Since July 1783, the national government had
become peripatetic. It had first decamped from Philadelphia to Princeton
after a crowd of unpaid Pennsylvania soldiers staged a threatening protest
outside the Pennsylvania Statehouse. Then it abandoned tiny Princeton
for a more accommodating but torpid Annapolis. Late in 1784, the new
Congress reconvened in Trenton, but Trenton was also found wanting. So
Congress decamped for New York City, only recently liberated from British
occupation, where it finally settled. A number of congressional bachelors
turned to spending the better part of their time scouting for brides among
the city’s mercantile families.
Once settled in New York, Congress confronted two disturbing facts.
Neither of its proposed sets of amendments had attained the requisite
approval of all thirteen states; and the flow of revenue from the states had
slowed to a trickle. In the meantime, commercial depression was settling
on the port cities of the North. In the southwest, Spanish authorities at
New Orleans closed the Mississippi to the shipment of American produce
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into the Gulf of Mexico, threatening both the welfare and loyalty of thousands
of settlers occupying territory south of the Ohio River. Further north,
British authorities in Canada retained control of the frontier posts on the
Great Lakes. Under the peace treaty, these forts were to be surrendered to
the Americans, which was essential to the settlement of the new national
domain because of the influence the British exercised over Indian peoples
above the Ohio River. But the British argued that they were entitled to
retain the forts because various American states were also violating the
treaty by preventing suits for the recovery of prewar debts owed to British
creditors and of property confiscated from American loyalists. Moreover,
without adequate revenue, Congress could not station a military force on
the Ohio frontier large enough to overawe the Indians or prevent squatters
from swarming the territory, and thereby thwarting its plans for orderly
and profitable settlement.
Urgent as they were, these concerns – revenue, foreign commerce, treaty
enforcement, and western development – were consistent with the understanding
of the purposes of the Union that had emerged by the early 1780s.
To supporters of an effective national government, the basic challenge
remained to secure adequate revenues and a modest increment in the formal
authority of Congress. While the various amendments made their slow
circuit of the states, Congress could only hope that the manifest difficulties
it faced would convince its member states to do the right thing.
Supporting pro-federal policies was one of James Madison’s principal
goals after he entered the Virginia legislature in 1784. His experience there
in the mid-1780s explains the fusion in his thinking of the distinct problems
of federalism and republicanism that ultimately led him to expand the
agenda of constitutional reform. By early 1787, Madison had concluded
that this agenda had to extend beyond merely providing supplemental
powers to Congress. Rather, it required a wholesale restructuring of the
national government and its relation to the states and the citizenry at large.
Madison had entered Congress in March 1780, amid its transition from
currency finance to the system of requisitioning “specific supplies” from the
states. As a delegate from Virginia, he participated in the land cessions that
led to the ratification of the Confederation. But as a member of Congress, he
was also troubled by the states’ failure to meet their national responsibilities.
By 1781, Madison was actively contemplating the idea that delinquent
states should be coerced, by armed force, into performing their duty. Over
the next two years, however, his views moderated with experience, as his
role in fashioning the revenue compromises of April 1783 suggests.
In the fall of 1783, Madison became one of the first victims of term
limits in American history, mustered home by the clause of the Articles
of Confederation restricting service in Congress to three years out of six.
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496 Jack N. Rakove
Once elected to the Virginia assembly, he played the leading role in its
deliberations. Letters from his replacement in Congress, James Monroe,
kept Madison well informed about national politics, and he consistently
worked to persuade his fellow legislators to support Congress. At the same
time, he was deeply involved in projects of internal legislative reform.
Madison took on the added duty of enacting the comprehensive revisal of
the Virginia statutory code that Thomas Jefferson, now American minister
to France, had compiled in the late 1770s.
In both efforts, Madison enjoyed significant successes. Yet his experience
had the effect, first, of souring his opinion of his fellow legislators, and then,
more significantly, of encouraging him to analyze the underlying defects of
republican politics and legislative deliberation within the states. Between
the summer of 1785 and the early spring of 1787, Madison began to think
systematically about the “vices of the political system of the United States.”
One part of this analysis led him to ask how the history of ancient and
modern confederacies illuminated the difficulties Congress was facing. But
Madison drew primarily on his own experience in Congress and Virginia
and a probing mind that was equally capable of reasoning empirically and
abstractly about events.
Having served as a member of the Virginia provincial convention of
1776, Madison recalled the haste with which the constitution had been
drafted. More important, he understood how poorly the framers of 1776
had anticipated the realities of governance in the years to come. The early
constitutions seemed deficient in two basic respects. They did not encourage
sufficient care and deliberation in the legislative process, and they left the
weaker executive and judicial branches vulnerable to legislative encroachments.
Writing to a college friend seeking his advice on the constitution
that Kentucky might write when it was finally separated from Virginia,
Madison made his first recommendation the creation of a true senate that
could provide the “wisdom and steadiness” so conspicuously absent from
ordinary legislation.7 He liked the idea of instituting an executive-judicial
council of revision like the one provided in the New York constitution of
1777, which could exercise a negative on legislative acts, or even requiring
the establishment of special committees to see that legislation was drafted
properly. Madison also questioned the fundamental republican norm that
made annual elections of legislators the people’s best security against the
abuse of power by their rulers. In his view, “triennial” elections might be
preferable.
This concern with the character of legislation and legislators critically
shaped Madison’s political thinking after 1785, and it led him to fashion
7 James Madison to CalebWallace, August 23, 1785, in Jack N. Rakove, ed., James Madison:
Writings (New York, 1999), 40.
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a quite modern understanding of the nature of representative government
itself. In traditional Anglo-American constitutionalism, the first task of a
representative assembly was not to make law in the positive sense. Rather, it
was to prevent the executive from acting arbitrarily, from imposing law by
fiat without the consent of the people’s representatives. This had been the
great issue in the constitutional struggles of seventeenth-century England,
and it still resonated in eighteenth-century America in the recurring battles
between royal governors and colonial assemblies. The memory of those
controversies, Madison believed, explained why the constitution-makers of
1776 had naturally sought to confine executive power and therefore paid too
little attention to the construction of the legislature. The past decade had
demonstrated how misplaced that concern had been. The urgent business of
conducting the Revolution repeatedly forced legislatures to act, and to enact
laws more extensive and intrusive in their impact than Americans had ever
known previously.8 But, in Madison’s view, the circumstances of revolution
alone did not explain the active lawmaking of the republican assemblies. In
a republican government, a supreme legislature would always be responsive
to the pressures and preferences of the electorate. The people themselves
were the real force in a republic, and in peacetime as well as war, they would
expect the legislature to act instrumentally in pursuit of their interests.
For Madison the people were neither a mere abstraction nor an undifferentiated
mass. Citizens had their individual interests, opinions, and passions,
and the political coalitions they formed would reflect the interplay of all
three. Republican politics, at the state level, was a politics of fashioning
popular majorities. Once those majorities coalesced, they would persuade
legislators to pursue their particular interests. The adverse effects those
interests might have on the legitimate rights of minorities would be no
deterrent to majority action. And if they conflicted with the larger public
good of the Union, these majorities would prefer their own parochial
concerns to the national interest.
This assessment of state politics had critical implications for the agenda
of constitutional reform. First, it brought the discrete issues of federalism
and republicanism together in one analysis. At bottom, what Madison
derided as the defects of state legislation derived from the same causes as the
reluctance of the state legislatures to ratify amendments to the Confederation,
abide by the peace treaty, or provide adequate revenues to Congress.
This judgment in turn led to a second, equally fundamental conclusion:
Any system of federalism resting on the voluntary compliance of the states
with national measures was doomed to failure. The radical omission of
the Articles, Madison reasoned, was in depriving Congress of authority to
8 Except, of course, for the most noteworthy and innovative category of American legislation,
the novel statutes instituting and maintaining a system of chattel slavery.
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498 Jack N. Rakove
compel the states to do their duty or to sanction them when they failed.
So long as Congress had to rely on the states, a non-compliance of some
legislatures would be the norm, not the exception. Not all states would
have an equal interest in seeing particular national decisions implemented.
Some state-based politicians (“courtiers of Popularity”) would always find
it convenient to oppose national measures. And even when the states generally
agreed on a particular policy, “a distrust of the voluntary compliance
of each other may discourage the compliance of any, even though it be the
latent disposition of all.”9
A proper national government, Madison concluded, would be organized
under a different principle. It would have to become a government of law,
operating not through recommendations addressed to the legislatures, but
through ordinary statutes enacted, administered, and adjudicated by its
own officials. This would mean replacing the unicameral Congress and its
dependent executive departments with the bicameral legislature and independent
executive and judiciary that Americans expected to find in any
proper government. That reconstitution could benefit from all the critical
appraisals of the state governments that had been forming over the past
decade. The project of federal constitutional reform would thus provide an
opportunity to assess the shortcomings not only of the Articles of Confederation
but also of the republican constitutions adopted with independence.
Madison was not alone in thinking that the state governments merited
critical review. That process arguably had begun much earlier, with the
drafting of the New York constitution of 1777 and the Massachusetts constitution
of 1780 (largely written by John Adams while home after his
first diplomatic posting to Paris). Both of these documents, for example,
had provided for the popular election of the governor, thereby making that
officer politically independent of the legislature. Each armed the executive
with a limited legislative veto, thereby restoring a controversial monarchical
prerogative. (In New York, this negative was to be exercised through
a council of revision including other executive and judicial officers.) Each
therefore marked a somewhat “conservative” reaction against the republican
enthusiasms of 1776.
The Massachusetts constitution was notable in two other respects. Following
the precedent of the Pennsylvania constitution of 1776, it made
its Declaration of the Rights of the Inhabitants an integral part of the
constitutional text, rather than stand alone as an independent statement
of uncertain authority. It was also the first to be proposed by a convention
appointed for that purpose alone and then submitted to the people, gathered
9 Madison, Vices of the Political System, in Kurland and Lerner, eds., Founders’ Constitution,
I, 167–68.
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in their town meetings, for approval. That had not been the intention of the
Massachusetts General Court – the legislature whose authority had been
reestablished in 1775 by an act of the Continental Congress. Rather, this
novel procedure was forced on the lawmakers by protests from individual
towns arguing that it was improper for a legislative body to frame the very
constitution that would define its own powers.
In taking this position, the protesting towns were invoking the common
law maxim of statutory construction that resolved conflicts between two
legislative acts by making the later one legally superior to the earlier one
(quod leges posteriores priores contrarias abrogant). A constitution promulgated
by a legislature possessed only the authority of a statute.Alater law violating
the constitution would thus be legally superior. By invoking this maxim,
the protesting towns identified the dominant vector along which American
constitutionalism developed in the decade after 1776. The impetus to think
of a constitution as higher law, superior to ordinary legislation, was primarily
a reaction against the dominant principle of legislative supremacy that
had shaped the first constitutions.
The emerging doctrines of American constitutionalism were thus driven
by a critical engagement with the experience of republican government
within the states. But an agenda of state-building also deeply affected the
movement for constitutional reform. Determining the shape and extent of
this agenda required drawing a different set of lessons from the experience
of the past decade.
The original American nation-state of 1776 – if that term can even be
used – was a confederation of autonomous jurisdictions, united for the great
purpose of securing independence from Britain. Although that paramount
goal did not stifle the expression of particular state and regional interests,
it generally discouraged such interests from being asserted too forcefully.
There was never a moment when any of the new commonwealths considered
defecting from the interstate alliance for independence.
Once independence was secured, it became easier to ask whether a genuine
national interest still existed. Issues of commercial policy exposed
significant differences between the regional economies of Northern and
Southern states. The former rested on family farms producing modest surpluses
that local merchants would carry (if permitted) to the slave societies
of the Caribbean. The latter featured slave-driven plantation agriculture
raising tobacco, rice, and indigo for European markets. New England
had a special interest in gaining access to North Atlantic fishing banks,
especially those off Newfoundland. Southern planters looked toward the
southwestern interior, imagining a commodity-exporting society extending
into the fertile bottom lands between the Ohio River and the Gulf of
Mexico.
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500 Jack N. Rakove
For the time being, these lands remained within the claimed jurisdictions
of Virginia, North Carolina, and Georgia. Eventually, however, these lands
were expected to fall under national jurisdiction, just as the territory above
the Ohio River had come to form a national domain when Congress finally
accepted the Virginia cession in 1784. It was the prospect of sustained
expansion into the trans-Appalachian interior, on both sides of the Ohio,
that arguably formed the principal impetus for a new conception of a post-
Revolutionary nation-state.
In consenting to the establishment of the national domain, the ceding
states had in effect admitted their own inability to maintain effective
republican government over too extensive a territory. But this willingness
to contract their boundaries, though in part a confession of state weakness,
left the states in a mutually secure relation with each other. In effect, the
states had converted problematic territorial claims that might have generated
conflicts both among themselves and with restive frontier settlers into
a system whereby they would collectively recognize each other’s legitimate
boundaries. Rather than becoming a source of interstate rivalry, the interior
had become a stimulus to an expansion of national jurisdiction that left the
states more, not less, secure in exercising the substantial legal authority
they retained.
The creation of a national domain destined for future settlement shaped
American state-building in other ways. Were these territories to be organized
as internal colonies, subordinated to the confederation of existing
provinces along the seaboard? Or would they be allowed to join the Union
as equal members? In a series of committee reports and ordinances, beginning
with a provisional measure drafted by Thomas Jefferson in 1784 and
culminating with the Northwest Ordinance of 1787, Congress began to
plan to divide the interior territory into potential new states, to be admitted
on terms of equality with the original thirteen states. The national
government would be responsible for administering the territory in their
preliminary phases of settlement. But at some point, the power to govern
would revert to the people, who would draft new constitutions as they made
the transition to statehood.
For this visionary policy to succeed, however, the United States would
have to project its own power across the Appalachians. From the north,
Congress still faced significant competition from British authorities in
Canada. Unless their influence over the Native American peoples of the
Great Lakes region was checked, Congress could not expect to proceed with
orderly settlement north of the Ohio. To the south, Spanish control of New
Orleans placed a choke-hold on the flow of American produce into the
Gulf of Mexico for sale. Without Congressional action to counter Spanish
restrictions, western settlers would have little incentive to remain loyal to
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Confederation and Constitution 501
the confederation of seaboard states. Instead, they would have to seek an
accommodation with Spain.
The potential continental empire of the United States thus found itself
in competition with the older Atlantic empires of Britain and Spain. In the
mid-1780s, there was every reason to worry that this competition might
continue indefinitely. The challenge Americans faced, if they were to remain
Americans and not merely residents of individual states, was to develop a
government with the resources to overawe the native peoples of the interior
while preventing the relatively weak colonial establishments that Britain
and Spain maintained in Canada and Louisiana from checking expansion
into the interior. At the minimum, that seemed to require the capacity
to sustain an adequate military force under the authority of Congress. But
provisioning troops on a distant and extensive frontier was not cheap (as the
British had learned before the Revolution). It required revenue, which was
exactly what Congress lacked in the mid-1780s. Three years after Congress
proposed its financial amendments of April 1783, the hurdle of unanimous
state ratification had still not been surmounted.
IV. PHILADELPHIA
In the end, the apparent impossibility of overcoming the obstacle of unanimity
persuaded the advocates of constitutional reform to pursue a more
radical strategy. Ideally, they might have preferred to wait to allow the
adoption of individual amendments to clear the path for the consideration
of others. But when neither the revenue amendments of 1783 nor the commercial
amendments of 1784 secured approval, other options had to be
considered.
The initiative came from the Virginia legislature. In January 1786, it
invited the other states to appoint commissioners to meet at a conference
to consider how to vest Congress with authority over commerce. By the
summer, eight states had agreed to send delegates to Annapolis, the site
the Virginia commissioners chose for the meeting. However, only a dozen
deputies from five states appeared at the appointed time in mid-September,
too few to pursue the proposed project. Rather than simply adjourn, the
commissioners present (who included Madison and Edmund Randolph from
Virginia, Alexander Hamilton, and John Dickinson) endorsed a risky gambit.
Seizing on a clause in the credentials of the New Jersey commissioners,
they proposed that another convention should meet at Philadelphia in May
and that its agenda extend beyond commerce to consider the defects of the
Confederation more generally.
Although the commissioners had no reason to think this stratagem would
succeed, three conditions worked in its favor. One was the recognition that
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502 Jack N. Rakove
an impotent Congress could not survive indefinitely and that the amendment
route was an exercise in futility. The second was a serious fissure
within Congress, sparked by a request from Secretary of Foreign Affairs
John Jay for a revision of the instructions under which he was negotiating a
commercial treaty with a Spanish emissary. Jay had asked Congress to allow
him to relinquish American claims for a free navigation of the Mississippi
River. This request was supported by Northern delegates anxious to see a
treaty concluded, but sharply opposed by Southern delegates who saw the
continued occlusion of the Mississippi at New Orleans as an impediment
to expansion into the southwest. In repeated votes on this issue, Congress
divided along starkly sectional lines, and that division made it easier to
imagine that the existing Union could devolve into two or three regional
confederations.
The third condition favoring the idea of a general convention was the
unrest in Massachusetts. However one explains Shays’ Rebellion (a protest
against court-ordered seizures of the property of indebted farmers) its occurrence
in Massachusetts, generally regarded as one of the best governed states
in the Union, was a cause for alarm. Massachusetts had been pursuing a
policy of levying taxes to retire its own public debt incurred during the
Revolution. Its constitution, adopted only in 1780, had avoided some of the
republican enthusiasms of 1776, notably by granting the popularly elected
governor a limited veto over legislation, thereby making its government
better “balanced” than those of other states.
Against this background, twelve of the thirteen state legislatures eventually
appointed delegates to attend the convention at Philadelphia. Rhode
Island was the lone holdout. In 1782, it had blocked the first attempt to
amend the Articles of Confederation. Since then, its politics had been dominated
by a party committed to a program of making paper currency legal
tender for the payment of private debts, a policy that proto-Federalists like
James Madison regarded as the hallmark of “vicious” legislation because it
seemed to attack the fundamental rights of property. But Rhode Island’s
opposition to the convention in fact proved strategically useful. A state that
refused even to attend the convention was unlikely to approve anything it
recommended, and this consideration in turn gave the delegates at Philadelphia
a powerful incentive to abandon the unanimity rule for amending the
Confederation.
In the months leading up to the convention, there must have been many
private discussions of its potential agenda. “It is not uncommon to hear
the principles of Government stated in common Conversation,” Samuel
Osgood, a former member of Congress, informed John Adams. “Emperors,
Kings, Stadtholders, Governors General, with a Senate, or House of Lords,&
House of Commons, are frequently the Topics of Conversation,” he added.
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“Many are for abolishing all the State Governments, & for establishing
some Kind of general Government.”10 But the extant documentary record of
what was being said is surprisingly thin. The most important evidence of
what was being prepared is found in the papers of James Madison, who had
returned to Congress in the winter of 1787. As a politician who understood
the importance of shaping a legislative agenda, Madison set himself the
task of fashioning a broad framework for the convention’s deliberations.
Madison developed his ideas in letters to three fellow Virginians –
Thomas Jefferson, the American minister to France; Edmund Randolph,
the state’s newly elected governor; and the nation’s most distinguished citizen,
George Washington, whose attendance at the convention Madison
deemed crucial to its success – and in his memorandum on the “Vices of the
Political System of the U. States.” Madison took as his point of departure
the need to find “some middle ground” between a system predicated on
the “individual independence of the states” and one designed to produce “a
consolidation of the whole into one simple republic.” The states should be
preserved “wherever they can be subordinately useful,” but a “due supremacy
of the national authority” also had to be established. That supremacy would
no longer be exercised by a government acting through the states, but by
one empowered to act directly on the population, effectively bypassing the
state governments. This in turn justified turning Congress into a true representative
body, where members would be apportioned among the states
on the basis of population and speak not for the state legislatures but the
people themselves.11 Moreover, the national “supremacy” should be vested
not only in the legislature but also in its coordinate departments of the
executive and judiciary, each of which would also act directly on the population.
This was a system of federalism, in short, that would define the
relation between the national and state governments in terms of boundaries
more than connections.
The most radical (or reactionary) element in Madison’s thinking, however,
did involve a new connection between the two levels of government.
This was his proposal to give the new legislature “a negative in all cases whatsoever
on the legislative acts of the States.”12 That negative could be used
to prevent individual states from interfering with national measures that
they opposed. But more intriguingly, Madison hoped this negative would
enable the national government to protect minorities within individual
states against unjust laws passed by their own legislatures. In advancing this
10 Samuel Osgood to John Adams, November 14, 1786, Adams Family Papers, Massachusetts
Historical Society, microfilm reel 368.
11 Madison to Washington, April 16, 1787, in Rakove, ed., Madison: Writings, 80–83.
12 Ibid., 81.
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504 Jack N. Rakove
proposal, Madison moved beyond the conventional understanding which
held that the principal problem in securing rights was to protect the people
as a whole against the arbitrary power of government. Historically that
meant shielding the people against the concentrated power of the monarchy.
But in a republican government, where the legislature dominated, the real
problem of rights would be to protect minorities among the people from
whatever popular majorities managed to dominate the government. Because
such majorities were more likely to form within the smaller compass of the
states, Madison believed that the most effective remedy for the abuse of
rights would be to empower a “sufficiently disinterested” national government
to protect individuals and minorities against unjust laws enacted by
the people’s own representatives.
Madison’s analysis formed the basis for the plan that the Virginia delegates
drafted while they waited for the other delegations to straggle into
Philadelphia. The convention was due to open on May 14, but a quorum
of seven states was not formed until May 25. Once assembled in the same
ground floor chamber of the Pennsylvania Statehouse where Congress had
declared independence eleven years earlier, the delegates’ first actions were
to adopt rules of deliberation and to elect GeorgeWashington as their presiding
officer. Having previously announced his retirement from public life,
Washington had attended the convention only reluctantly. Madison, too,
had worried that Washington’s prestige might be wasted if the Philadelphia
convention proved a replay of Annapolis. But once it was clear that
the convention would be well attended, his presence, even if he never said
a word, became an invaluable political asset.
While drafting the plan that Randolph formally introduced on May 29,
the Virginia delegates, in consultation with the Pennsylvanians, had considered
proposing that the convention not follow the one state, one vote
rule used by Congress since 1774. To insist on that point from the outset,
however, would have been a formula for confrontation, not deliberation.
Instead, the Virginia and Pennsylvania delegates believed they could persuade
the small states that principles of proportional representation should
be applied to both houses of the bicameral legislature that the Virginia Plan
would create. This assumption, which followed the strategy Madison had
sketched before the convention, effectively shaped the first seven weeks of
debate. Along with such allies as JamesWilson of Pennsylvania and Rufus
King of Massachusetts, Madison insisted that the principle of bicameral
proportional representation had to be approved first, before the convention
considered exactly which powers to vest in the national government. On this
point, the Virginia Plan proposed that the new legislature should inherit
the existing powers of Congress, and be further authorized “to legislate
in all cases to which the separate States are incompetent, or in which the
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harmony of the United States may be interrupted by the exercise of individual
Legislation.” If not quite equivalent to the legislative sovereignty
of Parliament, this formula nonetheless suggested an open-ended grant of
power that would make the national legislature the discretionary judge of
its own authority. Moreover, that discretion would extend to the exercise
of a negative over state laws “contravening . . . the articles of Union.”13
The principal limit on the abuse of that discretion would come from a
joint executive-judicial council of revision, modeled on a similar institution
established by the New York constitution of 1777 and which would
be armed with a limited negative over national legislation, including the
negative on state laws. Madison’s rationale for uniting the two “weaker”
departments in this council was that they might collectively discover the
will to counterpose their judgment to the superior political influence of the
legislature. But in debating this proposal in the first week of June, most
of the delegates indicated they preferred fortifying the two other departments
separately, not jointly. With little dissent, the executive alone was
given a limited veto over national legislation – thereby revealing how far
the framers had moved from the evisceration of executive power in 1776.
Equally revealing, criticism of the council of revision demonstrated that
many delegates assumed the judiciary would enjoy the authority to test the
constitutional validity of legislation after its enactment. Involving the judiciary
in the passage of legislation, some delegates objected, would weaken
the judges’ ability and will to assess its constitutionality once a proper
legal case presented itself. Here, too, the delegates drew on the experience
within the states, where, in a tantalizing handful of cases, judges had begun
to assert their authority to subject legislative acts to constitutional review.
Until mid-July, however, the question of representation preoccupied the
convention. There was broad agreement that seats in the lower house of
the new national legislature should be apportioned among the states on
the basis of population. Back in 1776, John Adams had declared that a
representative assembly should be “in miniature, an exact portrait of the
people at large,”14 and that principle had since become something of a
cli,ch´e in American thinking. It did remain a question, however, whether
the enslaved African American population concentrated in the Southern
states should be counted for purposes of representation.
The greater difficulty involved the upper house. Delegates from the less
populous states insisted on retaining the equal state vote of the Confederation
in at least one house of the legislature. Without that security, they
13 Max Farrand, ed. Records of the Federal Convention of 1787 (New Haven, CT, 1966), I, 21.
14 [Adams], Thoughts on Government, in Kurland and Lerner, eds., Founders’ Constitution, I,
108.
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506 Jack N. Rakove
argued, a government dominated by the larger states would run roughshod
over the interests of their constituents. The presence in the Virginia Plan
of a negative on state laws made that concern plausible. Delegates from the
more populous states replied that individuals were the only proper units of
political representation, not corporate entities like states. The interests of a
state were simply the aggregates of the interests of its citizens and residents,
and a formula for treating states with disparate populations as equal units
would be an injustice to the inhabitants of larger states. Perhaps the small
states’ concerns would deserve consideration if the interests of their citizens
really were different from those of citizens of the larger states. But they
were not. It was not the size of a state that would determine how its citizens
or their representatives would vote, but rather the array of specific interests
each state possessed. If some security were required to protect the state
governments in the exercise of their proper powers it could be provided
by allowing the legislature of each state to elect its delegates to the upper
house – a procedure the convention roundly endorsed on June 7.
In mid-June, delegates from the small states responded to the looming
impasse over this issue whenWilliam Paterson of New Jersey introduced an
alternative plan of reform. Rather than establish a wholly new government,
the New Jersey Plan would modestly augment the powers of the existing
Congress, where the equal state vote would remain in force. Paterson’s
proposals were less a serious alternative to the Virginia Plan than a warning
that if the small states were not satisfied on their key point, the convention
might have to accept a more modest agenda of reform if it wanted to
maintain an appearance of consensus. After minimal debate, the New Jersey
Plan was rejected on June 19.
Over the next four weeks, the convention continued to debate the issue
of representation. After a July 2 vote produced a deadlock of five states
each on a motion for an equal state vote in the upper house, the convention
appointed a committee to seek a compromise. Its report of July 5 did just
that, calling for proportional representation in the lower house, an equal
state vote in the upper, and a restriction on the authority of the latter to alter
appropriation measures. The large state delegates rejected this ostensible
compromise, noting that so long as the upper house had to consent to
appropriations, the proposed restriction on amendments was superfluous.
At this point, the convention looked more carefully at the issue of apportionment
in the lower house. Another committee had proposed an initial
apportionment, first of fifty-six and then of sixty-five representatives, but
its inability to explain the basis of this apportionment made Southern delegates
in particular nervous about protecting their region’s interests. Two
concerns were foremost. First, they assumed (wrongly, as it turned out), that
migration trends into the interior would favor their region, reducing or even
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eliminating the disparity with the more populous Northern states. Second,
Southern delegates forthrightly insisted on having their slave populations
counted for purposes of representation. Slaves might not be citizens, they
conceded, worthy of representation in their own name. But because they
were productive workers sustaining a prosperous segment of the national
economy, the states where they resided deserved political compensation
for the contributions they would make to the national welfare. Southern
delegates took particular alarm when Gouverneur Morris of Pennsylvania
suggested that the seaboard states should unite to guarantee that they
would always retain a majority in the new legislature, which they might
do by leaving the question of whether, when, and how to reapportion to
its discretion. But that would also allow the current Northern majority to
maintain the Southern states as a permanent minority. In response, Southern
delegates sought and secured two major concessions. First, the convention
agreed that the basis for reapportionment should be a decennial census, constitutionally
mandated. Second, a constitutional rule for reapportionment
would also be set, counting “other persons” (a euphemism for slaves) at the
ratio of three-fifths of the free population. The same ratio would be used, in
theory, to apportion “direct taxes” (such as a poll tax) among the states. But
the delegates believed that direct taxes would rarely, if ever, be laid. The
inclusion of a provision for taxation was designed to make the counting of
slaves for political representation less offensive.
In late June, Madison had used the difference between the northern and
southern regions to demonstrate why the small states’ claims for special
protection were specious. The existence of economies rooted in free or slave
labor represented lasting differences that would shape political behavior and
that would therefore need to be accommodated for the Union to survive.
The size of a state would have no such durable influence. But the efforts
of the Southern delegations to secure their interests as a regional minority
nonetheless helped legitimate the claims of the small states, by suggesting
that the protection of all identifiable minorities was a legitimate object of
representation. In the critical vote of July 16, the small states carried their
point, but not by convincing their opponents of the merits of their claims,
or by securing a genuine compromise. In fact, the key decision found five
states in favor of the equal state vote, four opposed, and Massachusetts,
presumably a member of the large state bloc, divided.
With this decision finally taken, the convention turned its attention to
other issues previously neglected. Its first decision, coincidentally, was to
eliminate the negative on state laws that remained Madison’s pet proposal.
In its place, it adopted a weak statement of the principle of the supremacy
of federal law, first expressed in the New Jersey Plan. During the second
half of July, the delegates devoted most of their attention to the election of
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508 Jack N. Rakove
the executive. In early June, they had agreed to vest the executive power in
a single individual (rather than a plural council), with a limited veto over
legislation. But the political capacity of the executive remained largely
unexplored.
The framers faced two great difficulties in designing the office to which
they eventually gave the title of president. One involved rethinking the
nature of executive power under a republican constitution. The other
required fashioning a suitable mode of appointment or election, which
in turn implicated other questions about length of term, eligibility for
reelection, and mechanisms for removal. On the first point, the delegates
expressed an array of opinions. Roger Sherman of Connecticut, for example,
regarded the executive simply as an agency for implementing the legislative
will. A few delegates, such as George Mason of Virginia, feared concentrating
executive power in the hands of a single person. At the other pole,
Alexander Hamilton favored an executive who could act as a great minister
of state, fashioning public policies for legislative consideration and exercising
significant discretion in matters of war and diplomacy. As the early
decision to grant a limited veto suggests, the convention was prepared to
restore some measure of prerogative – as the inherent powers of the British
Crown were often characterized – to the executive. Yet well into August,
the delegates also assumed that the power to appoint judges and other high
officials, and to make treaties, would reside in the Senate.
The framers were hard pressed to agree on a satisfactory mode of election.
When they took up this issue in late July, they considered three
alternatives without reaching consensus on any one of them. The idea of a
popular election was dismised on two grounds. First, the delegates doubted
that a highly provincial electorate would be able to identify truly national
“characters” or make an effective choice between them. Second, a popular
election in a single national constituency would disadvantage Southern
candidates because so much of the population of their region consisted of
African American slaves who could have no vote. An appointment by the
national legislature would avoid the information problem that militated
against popular election, but it proved vulnerable to other objections. As
the restoration of the veto suggests, the framers wanted to create an office
capable of resisting legislative intrusion in the administration of government.
But an executive elected by the legislature would lack the requisite
independence, unless limited to a single term. Because it would take time to
master the business of government, that term should be relatively long, but
a long term smacked a bit of monarchy. Instead, some delegates, including
Hamilton, thought that a shorter term with an opportunity for reelection
would give the executive the strongest incentives to perform admirably in
office. That, however, required placing the power of appointment outside
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the legislature. Accordingly, the convention briefly endorsed a scheme to
establish a separate corps of presidential electors. But almost immediately
doubts arose about their competence, leading the convention to return, on
July 26, to the initial proposal for a legislative appointment for a single
seven-year term.
This uncertainty reflected the difficulty Americans faced in reconciling a
strong conception of executive power with republican principles. Contemporary
models of executive power were either monarchical or ministerial,
and American political culture disparaged both. Nevertheless, during the
convention’s final weeks, the presidency acquired new authority, less because
the framers had adopted a Hamiltonian view of executive power, but rather
in reaction to growing concern about the Senate (as the upper house was
now called). The turning point came on August 24, when the convention
deadlocked over a motion to restore appointment by presidential electors.
Further discussion took place in a Committee on Postponed Parts. Its report
of September 4 proposed two significant changes. First, it placed the powers
of appointment and treaty-making in the presidency, to be exercised with
the “advice and consent” of the Senate. Second, it provided for a system
of presidential electors, to be apportioned among the states on the basis
of their total membership in Congress. The electors would not gather to
deliberate and vote until they reached a decision. Rather, they would meet
in their separate states, cast their ballots, and disperse. Should the electoral
vote fail to produce a majority, the final decision would fall to the
Senate.
This report had the advantage of replicating the compromises (as the
weary framers now thought of them) that had been reached over the composition
of Congress. The large states would hold an advantage in the electoral
round (though the small states would be over-compensated by the two
votes each gained for its senators). But should the electors not produce a
majority – which many delegates suspected would often occur – a decision
by the Senate would favor the less populous states. But this arrangement
proved vulnerable to a telling objection. It would make the executive politically
dependent on the Senate, the institution with which it would jointly
exercise the appointment and treaty powers. Three days of heated debate
on this point ended only when Roger Sherman hit on the ingenious solution
of placing the contingent election in the House of Representatives,
voting by states. A constitutional basis had thus been laid for creating
an independent presidency that, if less than monarchical, would still have
seemed ominous by the republican standards of 1776. Yet so many questions
remained about the political potentiality of this novel office that few of
the framers left Philadelphia confident that they understood how it would
function.
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The convention took other momentous decisions during its final weeks,
but few generated the sustained debate that accompanied the disputes over
representation and the presidency. Some of the most important were relatively
uncontroversial. The Supremacy Clause, for example, originated
as a weak alternative to Madison’s negative on state laws. But with little
discussion, it evolved into a robust statement of the supremacy of the
Constitution, federal statutes, and national treaties that state judges were
bound to enforce, “any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.” Whether state judges would have the fortitude
to exercise this responsibility was uncertain. But the framers believed
that federal judges would discharge that duty conscientiously, because the
Constitution granted them the same tenure of good behavior that had
shielded English judges from royal manipulation since 1701.
Two other sets of decisions deserve special notice. One dealt with the
legislative authority of Congress, the other with the procedures for adopting
the Constitution itself. As previously noted, the Virginia Plan left Congress
to judge the extent of its own power. Although Madison may have intended
this formula to serve simply as a placeholder until the key issues of representation
were resolved, it nonetheless could be read as an American variant
of the British conception of Parliamentary supremacy. In the wake of the
July 16 decision on the Senate, however, this broad grant was replaced
by a list of specific powers, first enumerated in the Committee of Detail
that met from July 26 to August 5 and then expanded, again with little
debate, during August. Foremost among these were the power to regulate
interstate and foreign commerce; to levy a wide array of taxes, exempting
only duties on exports; and to declare war and take a number of other
actions relating to the domestic and foreign security of the nation. In the
last area of jurisdiction, a brief but much-studied debate of August 23 led
the convention to replace a clause authorizing Congress “to make war” with
one empowering it “to declare war.” The most plausible interpretation of
this amendment is that it was designed to prevent Congress from meddling
with the president’s authority, as commander-in-chief of the armed forces,
to conduct war once initiated or authorized by the legislature. But that
understanding has not prevented numerous presidents since from asserting
that their authority as commander-in-chief subsumes significant discretion
to commit forces to combat without prior Congressional approval.
This enumeration of legislative powers in Article I, Section 8 of the
Constitution ended with a clause permitting Congress “To make all Laws
which shall be necessary and proper for carrying into Execution the foregoing
Powers,” and it was followed by two additional sections restricting the
legislative powers of Congress and the states. Together, these three sections
reflected and advanced the evolution in constitutional thinking that had
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occurred since 1776. Then it would have been understood that a government,
once constituted, possessed plenary legislative power, and it would
have been difficult to identify areas where that power could not intrude.
The bills of rights that accompanied many of the first state constitutions
did not formally limit this power, but were rather regarded as expressing
principles guiding its exercise. But the delegation of specific powers to
Congress, accompanied by restrictions on the legislative authority of both
the national government and the states, established a new understanding of
legislative power itself. It was no longer a plenary grant, but an assignment
of specific duties to particular institutions and levels of government. The
republican idea that all government rested on a primal grant of authority
from the people now took a different, more precise form. The people granted
and distributed only specific powers while retaining the capacity to retain
others or redistribute those already granted.
This was popular sovereignty in a more radical form than the theorists
of the social contract had envisioned. Nor was the concept of popular
sovereignty confined to the delegation of legislative power alone. For the
framers also deployed another, more immediate, but equally powerful application
of this concept to assure not only the legitimacy but the deep legality
of the Constitution itself.
In the strictest sense, the convention was an extra-constitutional device,
unknown to either the Articles of Confederation or the state constitutions.
That, in fact, was how the Anglo-American tradition ordinarily understood
conventions of any kind. The Convention Parliament of 1688, for example,
was a defective meeting of Parliament, made necessary by the flight of
James II, but for that very reason extra-constitutional because it was the
king who had to summon Parliament and approve its acts. The American
convention of 1787 did have important sources of legitimacy. Twelve of the
thirteen state legislatures had appointed delegates, and Congress had also
endorsed the meeting. Moreover, the convention could not promulgate a
constitution of its own authority; it could only propose, not conclusively
act. But imposing hurdles remained. Amendments to the Articles of Confederation
required approval by nine states in Congress and ratification by
all thirteen legislatures, and Rhode Island had balked at attending the convention
itself. For the Constitution to be approved in the orthodox manner,
Congress would have to consent to its own demise, the state legislatures
would have to accept new limitations on their own authority, and Rhode
Island, a province that had always pluckily pursued its own ways, would
have to relent.
Rhode Island’s expected opposition was a sufficient reason to abandon
the amending rules of the Articles and devise a fresh solution to the other
potential obstacles as well. The solution the framers adopted involved a
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512 Jack N. Rakove
direct appeal to popular sovereignty. The convention would submit the
Constitution to Congress, which would then transmit it intact and unrevised
to the state legislatures. But the latter were asked only to arrange for
the election of ratification conventions. Adoption of the Constitution would
require approval by nine state conventions. The framers and their supporters,
who seized the label of Federalists, insisted on one other crucial point.
The state conventions would have to approve or reject the Constitution in
its entirety.
This resort to popularly elected ratification conventions combined political
ingenuity with a theoretically potent method of distinguishing a constitution
from ordinary law. In one sense, the idea that a convention would
provide a purer expression of the popular will than the legislature was a
legal fiction. But a convention that would meet only once and then forever
disband could not be accused of having the same incentives to protect its
own privileges as a legislature. More important, the resort to a convention
would free the Constitution of its legal vulnerability under the leges posteriores
doctrine. If the Constitution secured only legislative approval, later
sessions of the state legislatures could, in theory, lawfully violate its provisions,
the Supremacy Clause notwithstanding. The potent fiction that the
people had directly assented to the Constitution obviated that possibility.
V. RATIFICATION
The Convention adjourned on September 17. Of the forty-two delegates still
present, all but three – George Mason and Edmund Randolph of Virginia
and Elbridge Gerry of Massachusetts – signed the completed Constitution.
A number of delegates then repaired to the Continental Congress in
New York, the Constitution’s first stop en route to ratification. There the
framers’ strategy was briefly challenged by Richard Henry Lee, who thought
that the Constitution should be amenable to amendment by Congress, and
accordingly introduced a number of changes he would like to see made.
Madison and other supporters of the Constitution adamantly resisted this
suggestion. By altering the text, they argued, Congress would also become
a partial author of the Constitution, which might imply that the amending
procedures of the Articles of Confederation should be invoked. Madison
and other Federalists beat back Lee’s challenge, but his idea that the Constitution
should not be approved unless it were amended became a leading
strategy of its Anti-Federalist opponents.
On September 28, 1787, Congress sent the Constitution on to the state
legislatures. Over the coming months, twelve of the thirteen legislatures
endorsed the proposed ratification procedures. Rhode Island, predictably,
was the exception, but in the name of popular sovereignty it went the
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other states one better by submitting the Constitution to a referendum
that roundly voted for its rejection. But the discussions and decisions of
these conventions were also only the culmination of a broader public debate
that began as soon as the Constitution was published. Nearly a year passed
before the final states of New York and North Carolina, both dominated by
Anti-Federalists, held their conventions. In the meantime, the Constitution
was subjected to prolonged public examination.
Many Federalists were content to defend the Constitution on the most
general lines possible, contrasting its promise of revitalized national government
with the manifest feebleness (or “imbecility”) of Congress. For
their part, many Anti-Federalists seemed to assume that utter depravity
was the normal condition of mankind and that self-aggrandizing officials
would manipulate every loosely worded clause of the Constitution to acquire
despotic power at the expense of the rights of the states and the liberties of
their citizens. Such fears echoed the language with which colonial leaders of
the 1760s and 1770s had interpreted the motives underlying British policy,
a language that still resonated deeply within American political culture.
But the most compelling Anti-Federalist criticisms grappled honestly with
the significant ways in which the Constitution departed from the orthodox
understandings of 1776.
Foremost among these criticisms was the idea that the Constitution
would lead to a consolidation of all real power in the national government.
Consolidation, as Anti-Federalists used the term, had two meanings. One
was that the national government would be consolidated simply because
it could act directly on the people, independently of the states. The other
invoked the image of a relentless competition between the governments
in which power would ineluctably move from the states to the nation.
If the states survived at all, they would be hollow jurisdictions, lacking
the resources to compete effectively with the national government for the
loyalty of the people. To support this conclusion, Anti-Federalists tried to
identify all the clauses of the Constitution that would aid and abet this shift
in power. The most ominous were the clauses of Article I, Section 8 giving
Congress broad authority to raise its own revenues, to command an army
independent of state control, and to “make all laws necessary and proper” for
implementing its enumerated powers. Coupled with the Supremacy Clause
of Article IV, this “sweeping clause,” as it was often called, seemed to assure
that the power of Congress would infallibly trump the reserved authority
of the states.
That power would be wielded, Anti-Federalists also argued, by two legislative
houses that would owe little to their respective constituents. The
Senate appeared to be the most dangerous institution of all. Notwithstanding
its election by the state legislatures, its members’ extended six-year
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514 Jack N. Rakove
terms, free from instruction or recall, would render them politically independent.
Moreover, the Senate posed a particular affront to the orthodox
idea of separation of powers. In addition to the legislative powers it jointly
exercised with the House, it would enjoy the executive powers it shared
with the president and the judicial authority to try impeachments – which
it could abuse to shield malefactors content to do its evil bidding. This
concentration of the three forms of power in one institution met the very
definition of tyranny laid down by the celebrated French political philosopher,
Montesquieu, in his canonical The Spirit of the Laws. Nor did Anti-
Federalists think it likely that the popularly elected House would counter
the “aristocratic” Senate. Compared to the state legislatures, the scale of
representation in the House seemed so large as to fray every bond of “sympathy”
that should unite lawmakers with their constituents. For his part,
the president would find it in his interest to collude with the Senate. Similarly,
federal judges serving on good behavior would develop their own
incentives to favor the claims of national governance over the states.
These criticisms were trenchant enough to merit serious answers. The
greater difficulty faced by Anti-Federalists lay in the realm of political strategy.
For one thing, their goals were not easily defined. Outright rejection
of the Constitution meant continuation of a Confederation believed to be
drifting into impotence. But there was no obvious way to alter the Constitution
prior to its ratification. Failing to hold a convention or caucus of
their own, Anti-Federalists could never agree on the changes they desired
or the means to attain them. Some, like Edmund Randolph (who eventually
returned to the Federalist fold), favored holding a second convention.
Others came to prefer the idea of recommending that amendments to the
Constitution be considered as soon as it was adopted. Whichever strategy
they pursued, Anti-Federalists suffered from a lack of effective leadership.
Their ranks did include such major revolutionary figures as Samuel Adams,
Elbridge Gerry, George Clinton, Patrick Henry, Richard Henry Lee, and
George Mason. But their efforts at coordination were few and feeble.
The Federalist campaign for ratification, by contrast, was highly coordinated.
Their strategy was predicated on using early victories in states
where they enjoyed decisive majorities to limit Anti-Federalist options
in others where public opinion seemed more divided. By the new year
of 1788, five states had ratified the Constitution over token opposition:
Delaware, Georgia, New Jersey, Connecticut, and Pennsylvania. Serious
Anti-Federalist opposition first appeared in Massachusetts, whose convention
assembled in the early January dead of winter. Though Anti-Federalists
enjoyed a potential majority, the Constitution’s supporters gained the upper
hand by courting the state’s dominant political figure, John Hancock, and
assenting to a variety of amendments to be proposed to the first Congress to
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meet after ratification. In the spring of 1788, South Carolina and Maryland
also accompanied their ratifications of the Constitution with recommendations
of amendments. That left the ninth and decisive vote for adoption
to come from one of three states where Anti-Federalists had actual or
potential majorities: New Hampshire (whose convention had met once but
adjourned), Virginia, and New York.
While the Constitution made its circuit of the states, the public debate
over its merits continued unabated. Perhaps the most influential Federalist
positions were those developed by James Wilson, first at a public rally
held in early October outside the Pennsylvania Statehouse where the convention
had met, then in the ratification convention at Harrisburg in late
November. As a known framer of the Constitution, Wilson’s public (and
published) statements in its support appeared authoritative in ways that
other pseudonymous writings could not. Though hardly a populist in his
politics, Wilson now emerged as the leading advocate of a new theory of
popular sovereignty, which he deployed to rebut the argument that the
Constitution was severely flawed both because it contained no declaration
of rights and because it radically diminished the sovereignty of the states.
Wilson’s arguments on these points gave a new and more precise meaning
to the idea that all government depended on a delegation of authority
from the people. It would be dangerous to include a bill of rights in a
constitution, he argued, if the provision made for the protection of freedom
of speech or conscience, for example, could be read to imply that the
national government had been given some authority to regulate those areas
of behavior. In fact, Wilson observed, the national government had been
given no such power; it was a government of limited, delegated authority
only, with no claims to the plenary legislative powers formerly claimed by
the state assemblies. But neither did it make sense to argue that the states
had lost their former sovereignty,Wilson further asserted. In a popular government,
sovereignty should not be regarded as an attribute of government.
It was properly vested in the people, who retained at all times a right to
allocate specific powers and duties to whichever level of government they
wished to exercise them. The proclaimed supremacy of the Constitution
may have altered this distribution of power between the national and state
governments. But sovereignty, properly understood, was always vested in
the people.
The most comprehensive defense of the Constitution was organized by
Alexander Hamilton, who recruited first John Jay and then James Madison
to join him under the pen-name Publius as co-authors of The Federalist. In
eighty-five essays written between the early fall of 1787 and the spring of
1788, the authors first laid out a broad case for the necessity and advantages
of a federal union fully capable of carrying out its assigned responsibilities
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516 Jack N. Rakove
and then turned to a sustained discussion of the composition and powers
of each of the three departments of the national government. A veritable
cottage industry of scholarly commentary has been dedicated to the
best-known essays: Madison’s argument about the superior merits of an
extended national republic in Federalist 10, his recasting of the doctrine of
separation of powers in Federalist 47–51, and Hamilton’s argument for the
judicial review of constitutionally dubious legislation in Federalist 78. But
the authority of The Federalist also rests on the breadth of its examination
of the Constitution, which has no parallel in the larger literature of the ratification
debate, the special prestige of its authors, and the extent to which
their essays reflected their deepest analyses of constitutionalism, federalism,
and republicanism.
The two states where these arguments were most needed were Madison’s
Virginia and Hamilton’s New York. The Virginia convention met first, in
early June 1788. The New York convention, solidly dominated by Anti-
Federalists who suspected Hamilton’s authorship of The Federalist but found
his reasoning unpersuasive, came to order at the end of the same month.
Before either could vote, the second session of the New Hampshire convention
provided the ninth vote necessary for the Constitution to take effect.
But rejection by either populous Virginia or New York, obviously poised
for major population growth, would seriously impair the new government
from the start. In closely divided Virginia, Federalists led by Madison had to
parry the rhetorical fireworks of Patrick Henry and the learned arguments
of George Mason, as well as the anxieties of delegates from the Kentucky
district upset by the Spanish closure of the Mississippi. Rather than risk
rejection, Madison acceded to the Anti-Federalist insistence that the convention
recommend a number of amendments to the Constitution. That
concession produced an eight-vote majority for the Constitution, making
Virginia the tenth state to ratify. In New York, by contrast, the Federalist
minority, led by Hamilton, had no room for maneuver. It was the Anti-
Federalists who had to decide, among themselves, whether the combined
news from New Hampshire andVirginia warranted abandoning their strong
opposition to the Constitution. On this issue, the Anti-Federalist ranks sundered,
with more moderate delegates joining the beleaguered Federalists to
produce a three-vote majority for ratification.
CONCLUSION
Could public opinion polls have been taken, a majority of the free American
population might well have opposed the Constitution. Federalist success can
be attributed to several factors. Their opponents’ lack of coordination and
effective leadership clearly was one; it stood in clear contrast to a Federalist
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Confederation and Constitution 517
movement that could summon the prestige of Washington and Benjamin
Franklin as well as the political skills of Madison, Hamilton, Wilson, and
other framers of the Constitution. Federalist domination of the press was
another advantage. Just as impressive, however, was the skill with which
the Federalists managed to limit the authoritative acts of the ratification
conventions to a simple up or down vote on the Constitution in its entirety.
Adoption of the Constitution would have been far more difficult had individual
conventions made their acts of ratification contingent on the prior
approval of amendments or insisted on summoning a second convention
to improve on the first. Agreeing merely to recommend amendments to a
future Congress gathered under the authority of the Constitution was a small
price to pay to secure unequivocal acts of ratification. Many Federalists, in
fact, denied they had made any explicit promise to pursue amendments.
Much of the credit for assuring that the First Federal Congress would even
consider amendments belongs to Madison. Although intent on preventing
any structural changes to the Constitution, he was willing to support the
inclusion of additional articles affirming the recognition of fundamental
rights. He did so, however, not because he believed that the omission of
such articles was a genuine defect in the Constitution, but rather because the
speedy adoption of amendments would reconcile well-meaning if misguided
Anti-Federalists to the Constitution.
Taken together, the unequivocal nature of the ratification decision and the
early attention to amendments gave the Constitution an immediate legitimacy
that trumped whatever residual doubts remained about the strict
legality of the proceedings of 1787–88. This was no small achievement. It
meant, among other things, that the numerous controversies over constitutional
interpretation that accompanied so many of the political disputes
of the Early Republic crested below the level of challenging the constitutional
regime itself. For decades to come, the American propensity to
convert political disputes into constitutional controversies would be safely
contained within the four corners of the original text. It would take the
intractable and ultimately irresolvable issue of slavery to produce a fundamental
challenge to the decisions of the late 1780s.
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15
the consolidation of the early federal
system, 1791–1812
saul cornell and gerald leonard
To celebrate the ratification of the new Federal Constitution, Federalist
Francis Hopkinson composed “The Raising: A New Song for Federal
Mechanics.” In one verse he exhorted America’s artisans to rally to the Constitution’s
standard. In Hopkinson’s musical ode, citizens mustered with
their tools, not muskets.
COME muster, my lads, your mechanical tools,
Your saws and your axes, your hammers and rules;
Bring your mallets and planes, your level and line,
And plenty of pins of American pine:
For our roof we will raise, and our song still shall be
Our Government firm, and our citizens free.1
Hopkinson also helped stage Philadelphia’s elaborate procession in honor
of the Constitution. As many as 5,000 marchers representing the city’s
many trades, professions, and different religious denominations assembled
to demonstrate their support. Similar but less elaborate parades and celebrations
occurred in other cities and towns. These carefully staged rituals
were designed to symbolize harmony and promote consensus in the wake
of the sometimes bitter ratification debates. Although these public displays
of consensus never managed to obliterate fully the lingering traces
of Anti-Federalist antagonism and suspicion, the rapid acceptance of the
Constitution was nothing short of remarkable given the rancor of the ratification
process. Even in Rhode Island, a strongly Anti-Federalist state
that would not ratify the Constitution for almost two years, the new language
of American constitutionalism permeated public discourse. Thus,
1 Francis Hopkinson, “The Raising: A New Song for Federal Mechanics,” in The Miscellaneous
Essays and Occasional Writings. 3 vols. (Philadelphia, 1792), 2: 320; see also
“A Grand Procession in Honor of Ratification,” Maryland Journal (Baltimore) May 6,
1788 in Bernard Bailyn, ed., The Debate On the Constitution. 2 vols. (New York, 1993),
2:430–38.
518
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The Consolidation of the Early Federal System, 1791–1812 519
one commentator observed that in Rhode Island “every friend of liberty”
was “putting on the appearance of Federalism.” He was pleased to report
that “the conversation of the inhabitants is carried out in a style of Federal
purity, and a man may as well expect to make a tour of Europe without any
knowledge of the French, as to be distinguished in company without a smattering
of the Federal dialect.”2
In the view of poet, politician, and essayist Joel Barlow, a properly framed
constitution “ought to serve not only as a guide to the legislative body,
but as a political grammar to all the citizens. The greatest service to be
expected from it is, that it should concentrate the maxims, and form the
habits of thinking, for the whole community.” Although he too viewed
the new Federal Constitution as central to the way Americans understood
government and law, William Manning, a tavern keeper from Billerica,
Massachusetts, cast a more suspicious eye toward the new frame of government,
comparing it to “a Fiddle, with but few Strings, but so that the
ruling Majority could play any tune upon it they pleased.” Manning’s musical
metaphor differed from Hopkinson’s in stressing discord, not harmony.
The tavern keeper’s description of the Constitution expressed the fears of
many who worried that the Constitution had been designed to favor the
interests of the few at the expense of the many. It also captured the contingent
and open-ended quality of America’s new constitutional text.3
Barlow was correct to assert that the new Constitution provided a common
language. The existence of a common constitutional language did not
establish a consensus on how the new document should be interpreted. The
Constitution had sketched the basic outlines of American government, but
there was much to be worked out before the shape of the nation’s legal and
political system could be deemed settled. Battles over how to interpret the
Constitution began almost immediately. They would prove to be as divisive
as the struggle over ratification itself had been.
To understand the era’s battles over the meaning of the new Constitution
we must unite the traditional court-centered narrative focused on landmark
Supreme Court decisions with a constitutional history from the bottom up
that includes the voices of artisans, backcountry farmers, women, and slaves.
Until quite recently, constitutional history has been written as if judges and
politicians were the only actors on the stage. The result has been an essentially
Whig and Federalist narrative that details the rise of the courts as the
preeminent force in shaping the process of constitutional interpretation and
2 United States Chronicle (Providence), July 17, 1788.
3 Joel Barlow, “A Letter to the National Convention of France on the Defects in the
Constitution of 1791” (New York, 1793), 30;William Manning’s “The Key of Libberty,”
William and Mary Quarterly 13 (1956), 234.
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520 Saul Cornell and Gerald Leonard
the creation of an effective national government. But constitutional debate
was not restricted to the new nation’s courts or legislative chambers. Americans
debated these issues in taverns, staged elaborate protests in the streets,
and occasionally took up arms to defend their own vision of constitutionalism.
In the case of dramatic events, such as the Whiskey Rebellion, all of
these venues were pressed into service by Americans. Nor was the Whiskey
Rebellion the only occasion in which constitutional ferment spilled out of
doors. Gabriel’s Rebellion (1800), a slave uprising in Richmond, Virginia,
revealed how constitutional ideas passed easily from masters to their slaves.
Finally, the struggles of New Jersey women, who exercised the franchise
for a single generation, further complicate efforts to depict constitutional
debate in the Early Republic as simply an argument between Jefferson and
Madison on the one side and Hamilton and the Federalists on the other.
We must also realize how different the substantive concerns of modern
American constitutional law are from those that gripped the Early Republic.
Since the 1950s, American constitutional law has been dominated by the
rights revolution. Certainly the language of rights was important to the men
and women of the Founding generation, but issues of rights were usually
bound up in other matters – notably fights over the meaning of federalism
and popular sovereignty.
Federalism, the structure of power relations among localities, states, and
the new federal government, was not some abstract philosophical principle,
but a palpable reality that shaped virtually every political issue of the day. For
Joel Barlow, the greatest accomplishment of American constitutionalism
lay precisely in linking together the concepts of representative government
and federalism. The development of the federal principle was, in his view,
one of the greatest achievements that “political experience has yet brought
to light.” Federalism was “the only resource that nature has offered us at
least in the present state of political science for avoiding at once the two dangerous
extremes of having the republic too great for any equitable administration
within, or too small for security without.”4
The question of federalism had been hotly contested between Federalists
and Anti-Federalists during ratification. Anti-Federalists complained bitterly
that their opponents had co-opted the name Federalist. In the view
of Elbridge Gerry, a prominent Massachusetts Anti-Federalist, “those who
were called antifederalists at the time complained that they had injustice
done them by the title, because they were in favor of a Federal Government,
4 Joel Barlow, “To His Fellow Citizens, of the United States” in Charles S. Hyneman and
Donald S. Lutz, eds., American Political Writing During the Founding Era, 1760–1805.
2 vols.
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The Consolidation of the Early Federal System, 1791–1812 521
and the others were in favor of a national one.” Anti-Federalists believed
that their opponents, the Federalists, were consolidationists, centralizers
bent on reducing state governments to mere ciphers in a powerful new
nation-state. The most astute Federalists, including Madison, were forced
to admit that the new government was something novel, a system “partly
national; partly federal.” Such a concept was difficult for many Americans to
comprehend. Americans had recognized a functional division in authority
between state and federal government since independence, but the issue of
divided sovereignty was more complicated. According to traditional constitutional
theory sovereignty was indivisible. The notion that the individual
states and the new federal government were each sovereign within their
own particular sphere of authority was not only difficult to comprehend,
but was destined to create conflicts between the states and the new federal
government. How would these two boundaries be kept distinct, and who
would police disputes in cases where there was a conflict between the states
and the new federal government?5 Virtually every important conflict in
the first two decades after adoption of the Constitution was shaped by the
struggle to define the nature of the federal system and the battle over whose
interpretation of the Constitution would shape law and policy.
The fate of federalism was closely linked to the fight over popular sovereignty.
As the staunch Federalist and Massachusetts Supreme Court Chief
Justice Theophilus Parsons noted in Ainslie v. Martin, the American Revolution
had transformed the nature of sovereignty. “The throne was vacant,”
Parsons declared, “but the people, in their political character, did not look
after another family to reign; nor did they establish a new dynasty; but
assumed to themselves, as a nation, the sovereign power.” Americans might
all agree with Parsons in the abstract, but in practice there were serious
divisions within American society over how the will of the people would be
collected and expressed in matters of constitutional interpretation.6Would
popular action in the streets retain its status as fully “constitutional” action,
perhaps empowering the constitutional agency even of women and African
Americans? Or would constitutional meaning rest in the hands of a national
elite, only nominally answering to a constricted electorate? In addition
to the rifts dividing members of the nation’s elite over questions such as
federalism, a profound division existed between proponents of a popular
constitutionalism and those who sought to restrain the radical potential of
unchecked democracy.
5 Elbridge Gerry, “Speech” in Joseph Gales, ed., Debates and Proceedings in the First Congress
(Washington, DC., 1834), Annals of Congress, August 1789, 731.
6 Ainslie v. Martin, 9 Mass. 454 (1813).
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522 Saul Cornell and Gerald Leonard
I. A BILL OF RIGHTS: LIBERTY, REPUBLICANISM,
AND FEDERALISM IN EARLY AMERICAN
CONSTITUTIONAL THOUGHT
Ratification of the Constitution did not resolve the basic tensions that had
divided Federalists from Anti-Federalists during the ratification debates.
Many of the issues simply spilled over into the first federal elections. Federalists
defeated their former opponents handily and obtained an impressive
majority in the First Congress. Nevertheless, divisions continued to widen,
framing the initial conflicts over the meaning of the new Constitution.
The First Federal Congress was faced with a host of questions that required
its members to flesh out many features of the new government’s
structure. Among the questions taken up by Congress were symbolic issues,
such as the appropriate form of address for the new president, but also
structural matters, such as the removal power of the president. The First
Congress also had to complete the design of the federal court system. Most
crucial of all Congress had to deal with the question of amendments to the
Constitution.
Ironically, the task of drafting amendments fell to James Madison, originally
an opponent of the idea of a Bill of Rights. Madison pared the
lengthy list of amendments recommended by state ratification conventions
to a dozen provisions. The first two amendments dealt with congressional
salaries and apportionment, but were not ratified by the states in these years
(the salaries amendment finally made it through in 1992). The ten that followed
were all adopted by the states and later came to be known as the Bill
of Rights. They included protections against the national government’s
violation of basic individual rights, such as freedom of religion, and provided
explicit affirmations of other rights that were more civic in nature,
such as the right of the people to form juries, to assemble, and to bear arms
in a well-regulated militia. The amendments also addressed structural questions,
such as federalism and unenumerated rights retained by the people
and the states.
The debate over the language of what would become the Second Amendment
demonstrates the contested nature of the original Bill of Rights. It
also illustrates the degree to which federalism shaped the language of rights
and the structure of constitutional discourse in the First Congress. The Constitution
gave to Congress the power to organize, arm, and discipline the
militia, but reserved to the states the right to appoint officers and train the
militia according to standards set by Congress. The former Anti-Federalist
Elbridge Gerry expressed some concern that Madison’s original language,
particularly the clause allowing conscientious objectors to avoid military
service, might be used as a pretext to disarm the militia. Gerry reminded
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The Consolidation of the Early Federal System, 1791–1812 523
members of Congress of the indispensable role that a militia played in a
republican government: “What, sir, is the use of the militia? It is to prevent
the establishment of a standing army, the bane of liberty.” The importance
of this issue was difficult to overstate. “Whenever government[s] mean to
invade the rights and liberties of the people,” Gerry commented, “they
always attempt to destroy the militia, in order to raise an army upon their
ruins.” The proposal to exempt individuals with religious scruples from
having to serve in the militia struck Gerry as a potentially dangerous grant
of authority to the federal government that would create “an opportunity to
the people in power to destroy the constitution itself.” Giving the federal
government the power to “declare who are those religiously scrupulous,
and prevent them from bearing arms” would allow it to decide who might
be excluded from the militia, effectively giving it the capacity to disarm
the militia altogether. With the militia rendered ineffective, it would be
an easy matter to create a powerful standing army and crush any resistance
to federal power.7
Although Gerry was alarmed by the prospect that the original language of
the Second Amendment would have allowed the militia to be disarmed, he
showed no concern that the same power might be used to disarm individuals
or challenge the common law right of self-defense. It was the right to bear
arms in a well-regulated militia that was at issue. The threat that the
new Federal Constitution posed to the militia had been discussed at great
length during ratification, but relatively little attention had been paid to an
individual right to own guns outside this context. During ratification there
had been a few scattered protests that articulated a more expansive right to
own guns for hunting and other non-military purposes. The most influential
example of this strain of Anti-Federalist thought was the Dissent of the
Pennsylvania Minority, which singled out a right to hunt for constitutional
protection. The right to hunt was one of many in the Dissent’s extensive
laundry list of rights requiring explicit protection. Federalist NoahWebster
confessed that he could barely contain his laughter when he pondered such
Anti-Federalist hyperbole. Webster’s dismissal of the logic of the Anti-
Federalist position was emblematic of a different Federalist approach to
protecting liberty. Indeed, he mocked the Anti-Federalist’s over-reliance
on written bills of rights. If one adhered to the Anti-Federalist approach,
he concluded, one would have needed to affirm the following:
That Congress shall never restrain any inhabitant of America from eating and
drinking, at seasonable times, or preventing his lying on his left side, in a long
winter’s night, or even on his back, when he is fatigued by lying on his right.
7 Elbridge Gerry, “Speech in Congress,” Annals of Congress, 17 August 1789, 778.
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524 Saul Cornell and Gerald Leonard
“You may just as well ask for a clause,” Webster added, “giving license for
every man to till his own land and milk his own cows.”8
Webster’s rejoinder to the Dissent reveals an important but often neglected
context for understanding the meaning of rights in the Founding era. While
modern Americans have come to view the Bill of Rights and the courts as
the primary means of protecting liberty, Americans in the Founding era,
most importantly Anti-Federalists, looked to other sources to protect their
rights. Many rights were not explicitly protected in bills of rights. The
New York constitution did not even have a bill of rights. The common law
provided one important source for guarding liberty. Americans also counted
more on their legislatures to safeguard liberty. Rather than look to judges as
sentinels guarding freedom, Americans were more apt to look to local juries
as the proper guardians of rights. Finally, there was broad agreement that
federalism was central to the preservation of liberty. The division of power
within the federal system was an indispensable mechanism for checking
power and protecting liberty.
Faith in the ideal of federalism did not, however, mean there was a consensus
on how power ought to be split between the states and the federal
government to achieve this goal. Anti-Federalists believed that the
greatest threat to liberty came from a distant government; in contrast,
Federalists believed that the individual states themselves posed the most
serious threats to liberty. But each side at least recognized that the survival
of liberty required an effective division of power between these two spheres
of authority.
While modern Americans look to the first eight Amendments to the
Federal Constitution as the core freedoms protected by the Bill of Rights,
Anti-Federalists thought that the Tenth Amendment, which focused on
federalism, was the most important of all those proposed. When Congress
debated the wording of this key provision of the Bill of Rights Anti-
Federalists fought to restrict the powers of the new government to those
“expressly delegated” by the Constitution. This effort to limit federal power
was resoundingly defeated, and the language of the amendment was distinctly
Federalist in spirit: “the powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.” The failure to limit federal power to
those “expressly delegated” prompted some Anti-Federalists to complain
that the Bill of Rights was utterly useless. Without structural changes in
the nature of federalism, Anti-Federalists feared that any protections for
8 [NoahWebster,] “America,” in Gary McDowell and Colleen Sheenan, eds., Friends of the
Constitution: Writings of the Other Federalists (Indianapolis, 1998), 175–76.
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liberty embodied in the Bill of Rights would be circumvented easily by the
federal courts and Congress.
II. HAMILTONIANISM AND THE REPUBLICAN OPPOSITION
Beginning with the First Congress, the Federalists’ program for establishing
a nationalist Constitution was shaped by economic policies designed
by Alexander Hamilton to place the new national government on a solid
financial basis and to bind the wealthy to the new nation by aligning their
economic interests with those of the new government. Federalist statebuilding
was not only nationalist in design but self-consciously styled on
the British model. The goal was to emulate Britain’s fiscal/military state
apparatus by creating a national bank, a funded national debt, and an effective
military establishment and to surround them with a political culture
in which deference, not democracy, was the cornerstone of political life.
Although attacked as a crypto-monarchist, Hamilton’s vision was not antirepublican.
His vision of the power of the federal government was not
unbounded. He believed that the powers of the federal government were
limited, but within its sphere of authority its powers were considerable.
Opposition to Hamilton’s program brought elements of the old Anti-
Federalist coalition into league with disaffected Federalists. Together these
disparate groups helped form the Republican movement. Given that Hamilton’s
economic program was partly inspired by the English “court” model of
Sir RobertWalpole and his successors, it is not surprising that the opposition
to it would draw liberally on the potent oppositional rhetoric of English
radical Whig (“Country”) ideology. Opponents attacked financial corruption
and the threat posed by a powerful and unresponsive government. The
critique was not, however, simply a tired rehash of the Old “Country” critique
of political corruption. Opponents of Hamilton recast this language
and translated it into a distinctly American idiom. The key transformation
was the new emphasis on federalism.
One of the most outspoken opponents of Hamilton’s program was the
Virginian John Taylor, who described the threat posed by the Federalist system
in forceful terms: “The funding system was intended to effect, what the
bank was contrived to accelerate. 1. Accumulation of great wealth in a few
hands. 2. A political moneyed engine. 3. A suppression of the republican
state assemblies, by depriving them of political importance, resulting from
the imposition and dispensation of taxes.”9 The ultimate goal, according
9 John Taylor, An Enquiry into the Principles and Tendency of Certain Public Measures, (Philadelphia,
1794), 85–87.
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526 Saul Cornell and Gerald Leonard
to Taylor, was to reduce the state assemblies to mere ciphers in a consolidated
system of government. State legislatures, the only truly representative
bodies in the new federal system, would be rendered impotent by the
machinations and manipulations of the paper banking interest.
William Manning formulated his own democratic critique of Federalist
constitutionalism. The tavern keeper was inspired to author his own attack
on Federalist economic policy after “reading the Many Altercations proposals
& Disputes in the publick papers about funding & the Manner of
paying the Continental & State Debts.” Manning believed that Hamilton’s
policies had doubly injured the people. Not only had the Secretary of the
Treasury’s policies provided a windfall for speculators but new taxes enacted
to pay off the speculators bore down hardest on the common people. “It
would,” he wrote, “Eventually prove the Destruction of our Dear bought
Libertyes & of all the State Governments.” Manning shared Taylor’s concern
that Federalist economic policy would undermine federalism and create a
consolidated national government dedicated to the interests of the few.10
This critique was delivered with a more populist slant: “Those that have got
the publick Securityes for a trifel their will be a formadale body of powerfull
Men” who would easily “Combine in opposition” and work to undermine
“the Rights of Mankind.” Manning believed that the Federal Constitution
had facilitated this process by establishing a government “at Such a Distance
from the Influence of the Common people” that the wealthy “think
their Interests & Influence will always be the gratest Sway.” It was precisely
because the state governments were more responsive to the popular will
that the wealthy desired to weaken state power.
For the emerging Republican opposition, the various state legislatures
would continue to function as deliberative bodies, collecting, refining, and
focusing the voice of the people. True federalism could not rest on a system
of coercion. Persuasion, not power, was the key to this approach to
constitutionalism. In contrast to Federalists, who looked to a strong military/
fiscal state capable of using coercion to maintain order, Republicans
championed a state-centered vision of federalism that looked to a public
sphere of political debate to cement the new nation together. Republican
theorists waxed eloquent about the role of public opinion in a republic.
The notion of a public sphere, in which citizens debated ideas openly, was
essential to this vision of constitutionalism. The creation of Democratic-
Republican societies and of an effective network of newspapers was vital
to the integrity of the public sphere. This decentralized vision of power fit
well with Republican theories of federalism.
10William Manning, “‘Measures so Glareingly Unjust’:AResponse to Hamilton’s Funding
Plan by William Manning,” William and Mary Quarterly 46 (1989), 320, 322.
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Still, there was some division within the ranks of Republicans over how
much this public sphere ought to be controlled by elites. John Taylor’s
vision of a state-centered federal system was shaped by a conservative and
essentially elitist vision of republicanism in which the state legislatures
would comprise a refined version of the popular will mediated by members
of the gentry. Manning, by contrast, espoused a more democratic vision of
federalism in which representatives would be drawn from the ranks of the
“l(fā)aboring sort” rather than planter or mercantile elites. Manning also hoped
that his proposals for a national Laboring Society (open to all free males
over the age of twenty-one who labored for a living) and a reinvigorated
democratic press would allow the “l(fā)aboring sort” to shape public opinion.
Leading Federalists, meanwhile, condemned the Democratic-Republican
“Societies” altogether. Washington denounced the clubs as “self-created
societies” that corrupted, not revitalized, the political process. For Federalists
the opposition exemplified the continuing dangers posed by faction
and mobocracy. The opposition, they argued, was merely carrying forward
a destructive, Anti-Federalist agenda.
III. THE WHISKEY REBELLION, THE CONSTITUTIONALISM
OF THE CROWD, AND THE LIMITS OF RESISTANCE
TO FEDERAL POWER
The Hamiltonian economic program included a series of tax increases that
prompted protests and armed resistance on the part of farmers in western
Pennsylvania and Kentucky. The most violent and sustained popular protest
since Independence, the Whiskey Rebellion highlighted the fragility of the
new federal system. How could the new nation deal with the powerful and
persistent forces of localism? For Federalists the answer was simple: force.
Federalists blamed the uprising on the Democratic-Republican societies
for fomenting discord. For them, the Whiskey Rebellion demonstrated the
dangers of excessive democracy and provided a sobering reminder of the
necessity of a strong central government to counteract powerful centripetal
forces that threatened to pull the nation apart.
For the most radical voices within the Republican opposition, most
notably the Whiskey Rebels themselves, even a state-centered theory of
federalism failed to provide adequate local autonomy. For radical localists,
the individual state governments were still too far removed from the localities
to enjoy legitimacy and could never represent their interests effectively.
The people under the new Federal Constitution were hardly better
off than under British rule. In contrast to members of the Republican elite,
these radicals rejected the authority of both state and federal governments
and asserted the right to resort to extra-legal crowd action to preserve the
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528 Saul Cornell and Gerald Leonard
autonomy of localities. Plebeian radicals also continued to embrace the symbols
and tactics of the revolutionary tradition, erecting liberty poles, and
tarring and feathering excise men. Nor did radicals limit their opposition
to symbolic protests; they mustered themselves as local militia units and
resisted efforts to collect federal taxes. While the rebels hoped that local
militias could serve as a means of checking federal power, the radical potential
of the militia was undermined when Washington mobilized the “well
regulated” state militias against these local units.
For Republicans, the Washington administration’s decision to use force
to put down the Whiskey Rebellion confirmed the nefarious designs of
Hamilton and his allies. But although united in opposition to Federalist
policies, they were divided on what forms of protest were legitimate within
the new federal system. Most Republican leaders sympathized with the
grievances of the rebels, but few were willing to grant constitutional legitimacy
to extra-legal crowd action; the notion that local militia units might
act outside the authority of the state would have struck leading Republicans
as an exercise in mobocracy, not democracy. Mainstream Republican
constitutional theory accepted that public meetings and the press might
be used to rally opposition, but fell short of sanctioning crowd action or
armed rebellion as an appropriate means to challenge unjust government
action.
The militia was only one means by which popular constitutionalism was
invoked during the Whiskey Rebellion. Republicans hoped to use local
juries as a check on federal authority. Federalists bypassed this potential
obstacle by using federal courts to prosecute participants in the western
Pennsylvania disturbances. Republicans strenuously opposed this policy.
Once again, they argued, Federalists were undermining true federalism and
substituting a single national standard dictated by a powerful centralized
authority.
IV. THE SEDITION ACT AND THE COMPACT THEORY
OF FEDERALISM
No part of the Federalist agenda did more to inflame political passions than
did the passage of the Alien and Sedition Acts. Hostilities among European
powers during the 1790s threatened to embroil the United States in conflict.
Consequent fears about the threat of foreign and domestic subversion
led the Federalists to pass legislation making it more difficult to become a
citizen and making seditious libel a federal crime. Federalists defended the
Alien and Sedition Acts as necessary to prevent foreign agents, radical refugees,
and their domestic allies from undermining American republicanism.
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They pointed out that the Sedition Act did not limit speech but actually
strengthened the protections for speech beyond the common law understanding
of seditious libel, which did not allow truth as a defense. Republicans,
however, found in these acts – especially the Sedition Act – decisive
confirmation of their fears of the Federalists’ zeal for centralization and contempt
for liberty. Concerned in particular by the Sedition Act’s curbs on
speech, they objected that it was beyond the national government’s limited
list of enumerated powers and took a dramatic step toward creating a
consolidated government. The most innovative legal thinkers within the
ranks of republicanism asserted that the American Revolution had swept
away such monarchical notions as seditious libel. At the very minimum,
they argued, the limited government created by the Constitution did not
incorporate a common law notion of seditious libel.
In their attempts to resist the Federalist offensive, opposition theorists
found themselves formulating new meanings for federalism and for the
constitutional function of dissent that would irrevocably alter the course of
American law. In challenging the constitutionality of the Sedition Act, for
example, Republicans inaugurated a new phase of dissenting constitutional
theory. Once appeals to the legislature and the courts – the normal political
and legal mechanisms for challenging the Alien and Sedition laws – failed,
what recourse was left to resist tyranny? Republicans were forced to think of
new ways to protect individual liberty and restore the federal government to
its proper sphere of authority. They turned to the ideal of federalism. After
all, the principles of federalism had been central to opposition thought since
ratification. The structure of the federal system had always been seen as the
final guarantor of individual liberty.
But although this belief was a cardinal tenet of dissenting constitutionalism,
relatively little attention had been devoted to exploring how
federalism’s checking function would actually operate in practice. Exactly
how would the will of the people be collected and invoked? Would the
judiciary exercise the final check when a corrupt faction gained control
of the federal government and threatened the liberties of the people? The
state legislatures? Special conventions of the people of the states? The state
militias?
Republican elites favored a states’ rights view of federalism. The two most
important public expressions of the new approach were Thomas Jefferson’s
Kentucky Resolutions and James Madison’s Virginia Resolutions. Each
drew on the anti-consolidationist rhetoric that had defined dissenting constitutional
discourse since ratification. In each case, Jefferson and Madison
asserted that the protection of individual liberty depended on preserving
the balance of power between the states and the federal government. States’
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530 Saul Cornell and Gerald Leonard
rights and individual rights continued to be linked together in oppositional
constitutional discourse. The two documents also elaborated a compact
theory of federalism. The Kentucky Resolutions affirmed “that the several
states composing the United States of America are not united on the principle
of unlimited submission to their general government.” A corollary of
this position was the view that “as in all other cases” involving a “compact
among parties having no common judge, each party has an equal right to judge
for itself, as well of infractions as of the mode and measure of redress.” Jefferson’s
original draft of the Kentucky Resolution had called for state nullification
of unconstitutional acts of Congress, but this language was omitted from
the final version adopted by the Kentucky legislature. Asserting the right
to judge infringements, even without asserting the right to nullify laws,
did appear to give individual states a right to determine for themselves the
constitutionality of federal laws.11
Madison’s more temperate response in the Virginia Resolution did not
assert an individual state right, but noted that in extraordinary cases, when
the Constitution’s safeguards had broken down, the states “have a right,
and are duty bound to interpose for arresting the progress of the evil.” By
invoking the right of the states, not individual states, and employing the
vague concept of interposition, Madison avoided language that would suggest
the right of an individual state to nullify an unconstitutional law. But
the Virginia Resolution shared with Jefferson’s Kentucky Resolution an
emphasis on the compact theory of union. Madison declared that it was
the intentions of the states in ratifying the Constitution that controlled the
meaning of the text. Madison’s theory not only placed a states’ rights view
of federalism at the heart of Republican constitutional theory, but it gave
additional emphasis to the original intent of the ratifiers of the Constitution
as the authoritative source of meaning when interpreting it.
The efforts of the Kentucky and Virginia legislatures at redress were
rebuffed by the other states’ legislatures, which were mostly under Federalist
control. A second set of resolutions was drawn up, and in the Kentucky
Resolutions of 1799 the term “nullification” was reintroduced. Asserting
that the individual states could judge issues of constitutionality, the resolution
also affirmed that in extreme circumstances nullification was the
rightful remedy. The concept of nullification was tempered by the assertion
that Kentucky would “bow to the laws of the Union” while continuing “to
oppose, in a constitutional manner,” unconstitutional acts.” Nevertheless,
Jefferson flirted with the notion of secession as the ultimate response to
the tyranny of the Alien and Sedition Acts. Once again, Madison counseled
11 “The Alien and Sedition Laws, and Virginia and Kentucky Resolutions” (Boston,
1798), 2.
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Jefferson out of this radical position and helped avert a serious constitutional
crisis.12
What united the Virginia and Kentucky approaches was the belief that
individual state legislatures might serve as a means of collecting and organizing
opposition. The most likely mechanisms for such action would be
petitions to Congress and the amendment process. In 1788, Federalists
reminded their opponents that the states would rally against any potential
threat from the federal government. Madison himself had been one of
the argument’s most forceful proponents. More than ten years later he was
restating this gloss on federalism in even more assertive terms: “The appeal
was emphatically made,” at that time “to the intermediate existence of the
state governments between the people and the government.” The individual
states, Madison observed, “would descry the first symptoms of usurpation”
and “sound the alarm to the public.” In defending the rights of states,
Madison was careful to note that in constitutional matters there was an
important distinction between the ordinary acts of the legislature and the
acts of the conventions that had ratified the Constitution. Madison, that
is, was far more circumspect than Jefferson in asserting the rights of state
legislatures to judge constitutional matters.13
V. THE NOT SO REVOLUTIONARY REVOLUTION OF 1800:
UNDOING THE FEDERALIST LEGACY AND CREATING
AN EMPIRE OF LIBERTY
The election of 1800, bitterly contested between Jefferson and Adams,
resulted in a tie between Thomas Jefferson and his own running mate,
Aaron Burr. Although the Constitution provided a mechanism for handling
such disputes, at least two states mobilized their militias as a precautionary
measure to guard against the possibility that Federalists might take
advantage of the confusion and refuse to turn over the reins of government.
After considerable maneuvering by supporters and opponents of Jefferson,
a peaceful transfer of power was accomplished. In turn Jefferson’s inaugural
sounded a conciliatory note, proclaiming that, “We are all Republicans, we
are all Federalists.” But more than conciliation was at work here. Jefferson’s
inaugural address stated a set of ideals that would come to define his constitutional
politics. He reaffirmed representation and federalism as the twin
constitutional pillars of American government, even though the events of
12 Thomas Jefferson, “The Kentucky Resolutions of 1799,” in Jefferson Powell, ed., Languages
of Power: A Sourcebook of Early American Constitutional History (North Carolina,
1991), 138.
13 James Madison, “The Report of 1800” in Powell, Languages of Power, 146.
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532 Saul Cornell and Gerald Leonard
the previous decade had revealed profound disagreement over how to implement
them and indeed over how to interpret the Constitution to preserve
them.
Jefferson’s election did not bring the revolutionary transformation that
some had hoped for and others feared. Rather than attempt a radical transformation
of the state the Federalists had built, Jefferson steered the nation
on a path somewhere between Hamilton’s federalism and that of the most
radical members of his own coalition. Among his own supporters Jefferson
was pressed from both sides. Southern conservatives wished to amend
the Constitution to stifle federal power. The Old Republicans who dominated
the Jeffersonian movement in Virginia wanted a prohibition on the
reelection of the president, shorter terms for senators, limits on the government’s
borrowing power, and Congressional power to remove federal
judges. None would occur. For more egalitarian democrats such asWilliam
Manning, meanwhile, Jefferson’s election brought little of the hoped-for
shift in power from the few to the many.
Avoiding both extremes, Jefferson’s first Inaugural Address described
America as a “chosen country, with room enough for our descendants to
the thousandth and thousandth generation.” To remain a virtuous yeoman
republic and keep alive the ideal of an “empire of liberty,” the nation would
have to expand westward. Jefferson’s yeoman republic had little room for
African Americans or Indians. Although Jefferson always viewed Indians in
a much more positive light than Africans, he predicted that tribal societies
would either assimilate into white culture or face extinction.14
At the time Jefferson took office, more than a half-million Americans
already lived west of the Appalachian Mountains. For many, access to the
Mississippi River had become crucial to their economic prosperity. Pinckney’s
Treaty (1795) with Spain provided navigation rights to this vital
economic corridor, but when the Spanish closed the port of New Orleans
to American shipping in 1802, many in Congress were alarmed. In particular,
Americans were concerned that Napoleon Bonaparte’s effort to regain
control of the port was part of a larger plan for reasserting French power
in the region. Some Americans even advocated seizing the city. Jefferson
preferred a negotiated settlement and sent a delegation to purchase the
port from France, only to discover that Napoleon was willing to sell the
entire territory of Louisiana to the United States. Jefferson was presented
with an opportunity to double the size of the country. His only problem
was that the Constitution did not expressly authorize the president to purchase
new territory. To fulfill his dream of securing enough land for the
14 Thomas Jefferson, “First Inaugural Address,” in Merrill Peterson, ed., Thomas Jefferson:
Writings (New York, 1984), 494.
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nation to remain a yeoman republic, Jefferson relaxed some of his vaunted
constitutional scruples. The purchase was not comparable to Hamilton’s
efforts to use latitudinarian constructions to expand the power of the federal
government at the expense of states’ rights, but Jefferson’s action
nevertheless forced him into a constitutional gray zone. Jefferson contemplated
amending the Constitution to make the purchase possible, but feared
Napoleon might withdraw the offer before such an amendment could be
ratified.
Jefferson was also forced to confront the limits of his own egalitarian
vision of the Constitution in providing for governance of the new territory.
In the plan he had drafted for the Northwest Territories two decades earlier,
Jefferson had been a model republican who sought to include the inhabitants
of new territories as equals, not subjects.With respect to Louisiana, however,
Jefferson’s approach suggested that liberty was not something all men could
be expected to exercise with equal discretion. In this regard, Jefferson’s
treatment of the non-Anglo population of Louisiana was in keeping with
his views about African Americans and Native Americans.
Jefferson’s goal on assuming the presidency had been to undo the legacy of
a decade of Federalist power. Pursuing this goal meant modifying aspects of
his own constitutional theory as he energetically used the power of the executive
and the federal government to promote his vision of an empire of liberty.
Nor would he change these positions during his second term. The Federalist
opposition was far weaker than during Jefferson’s first term, yet the
political challenges he faced were in many respects even more formidable.
In response, Jefferson exercised executive power ever more forcefully.
In 1808 Jefferson was poised to resolve the persistent quarrel over direct
federal expenditures for internal improvements by backing a constitutional
amendment that would have removed any lingering doubts about the constitutionality
of such a program. Events in Europe rudely shunted the issue
aside. American trade with both Britain and France had prospered hugely
during the early phases of the conflict between the two nations. Each, however,
had become desperate to exert economic pressure on their enemies and
so set out to blockade each other’s ports. The United States argued that
neutral nations had a right to carry on non-military trade with both sides
in the conflict, but neither Britain nor France honored the claim. By 1807
France had seized five hundred U.S. ships and Britain nearly a thousand.
The United States also protested the British practice of boarding American
ships in search of British nationals to impress (force) into naval service. The
dispute reached a crisis in 1807 when the British ship, the Leopard, fired at
an American Navy ship, the Chesapeake. In the skirmish three Americans
were killed and eighteen wounded. The British abducted four American
sailors who they charged were deserters from the Royal Navy.
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534 Saul Cornell and Gerald Leonard
Attempting to avoid military conflict with the British and French, Jefferson
proposed an economic embargo. By keeping America’s ships out of
harm’s way and depriving Britain and France of the economic benefits of
trade, Jefferson hoped to exert pressure on both sides to respect the rights
of neutrals. American exports fell from $108 million in 1807 to $22 million
in 1808. The constitutionality of Jefferson’s “peaceable coercion” was
affirmed by a Massachusetts federal judge, the Federalist John Davis, but
the embargo was exceedingly unpopular in New England and in seaport
cities and was widely flouted by smugglers. To enforce the embargo along
the Canadian border Jefferson had to use federal troops, a decision he had
decried during the Whiskey Rebellion a decade earlier. Like his Federalist
predecessors, Jefferson sought to expand the definition of treason and use it
as a means to crush opposition to his administration’s policies. The embargo
divided Republicans and strengthened the fortunes of the Federalists, who
had been in decline in most areas of the nation. In the 1808 presidential
election, the Federalist candidate, Charles Pinckney, received three times
as many votes as he had in 1804, doing particularly well in New England.
Despite the strong showing in the Northeast, however, the Republican
candidate James Madison handily defeated Pinckney by 122 to 47 electoral
votes.
When war with Britain finally broke out in 1812, some Federalists
appeared to outdo their Jeffersonian adversaries in defending the ideal of
states’ rights. In choosing to invoke the same concept of states’ rights that
had inspired Jeffersonians less than a decade before, Federalists demonstrated
an important reality about the structure of American federalism.
During the ratification of the Constitution, Federalists had assured Anti-
Federalists that the states would serve as the final check on the power of
the federal government. The recycling of these arguments in 1812 did not
mean that Federalists had suddenly turned Anti-Federalist. Rather, this
strain of states’ rights thought was hard-wired into the structure of American
federalism. Thus, when faced with the prospect of a draft, Federalist
Daniel Webster did not shy away from asserting a right of states to interpose
between the federal government and their citizens when individual
liberty was threatened. Nor didWebster and other Federalists flinch about
asserting the right of states to refuse to muster their militias and march
them beyond the borders of their states.
Late in 1814, Federalists in New England met in Hartford to discuss their
dissatisfaction with Republican policy. Some flirted with the idea of secession,
as they had briefly in 1803, but the Hartford Convention stopped well
short of advocating the break-up of the Union. Although New England Federalists
had denounced the Virginia and Kentucky Resolutions, they now
found themselves echoing many of the same ideas. The convention delegates
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proposed a series of constitutional amendments that would strengthen New
England’s influence in the Union. In particular, they wanted majorities of
two-thirds to become mandatory for Congressional adoption of commercial
regulations and declarations of war, and for the admission of new states.
To weaken the South’s influence in Congress, the Hartford Convention also
called for a repeal of the three-fifths compromise that allowed Southerners
to count a percentage of their slaves for the purposes of determining representation
in the House. But the Hartford Convention’s proposals were
publicized at the same time as news of the Treaty of Ghent ending the war
(December 1814) and America’s impressive victory at the Battle of New
Orleans (January 1815) were fueling a new sense of national pride. The
Federalists’ narrow sectionalism consequently appeared out of step with the
public’s new patriotic fervor. As a movement Federalists were irreparably
damaged even in their stronghold of New England. Both their old consolidationism
and their new secessionism were now equally discredited,
opening the way for a new moderate Republicanism reconciled to the wise
use of national power to preserve the republic.
VI. CONSTITUTIONAL OUTSIDERS AND THE LIMITS
OF JEFFERSONIANISM
Notwithstanding heady proclamations of a “second American revolution,”
Thomas Jefferson’s presidency is better cast as a story of caution and compromise,
tendencies that grew in part out of domestic and international
circumstance, in part out of limitations inherent in Jefferson’s own political
and constitutional vision. In important ways, those limitations had been
evidenced well before Jefferson ever assumed the presidency and tell us
much about the kind of republic Jefferson envisioned, the kind of citizenry
he thought should influence it, and the kind of people who would endanger
it. In 1786, for example, Jefferson had greeted news of Shays’ Rebellion
calmly; a decade later he had reacted just as mildly to the Whiskey Rebellion.
But in 1800, when it came to Gabriel’s Rebellion, Jefferson evinced
little sympathy for the plight of Virginia’s slaves nor much openness to
their desires for freedom. Gabriel Prosser, a skilled Richmond artisan, had
planned to seize the state arsenal and distribute weapons to all who would
join to overthrow the system of slavery. He had planned to march under a
banner with the words “death or liberty” emblazoned on it, taking Patrick
Henry’s Revolutionary credo and transforming it into a rallying cry for
an uprising against slavery. Prosser had expected not just slaves but “poor
white people” and other “democrats” to rally to his cause. All those whites
deemed “Friendly to liberty,” notably “Quakers, Methodists, and Frenchmen”
were to be spared and the rest killed. Had his original plan not been
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536 Saul Cornell and Gerald Leonard
frustrated by a torrential rain storm, Gabriel’s Rebellion might have been
the most successful slave uprising in American history. But the delay caused
some slaves to waver, the plot was discovered, and its supporters hunted
down. Twenty-seven conspirators were executed on the gallows.15
The rebellion pushed the Virginia legislature into a confrontation with
the problem of slavery. Several proposals were debated, including outright
abolition of slavery and the creation of colonies of freed slaves in the western
part of the United States. Governor James Monroe broached the idea with
the newly elected president. Jefferson rejected the idea. Elaborating the
theme articulated in his Inaugural Address, Jefferson outlined America’s
future expansion in explicitly racist terms. “However our present interests
may restrain us with our own limits,” Jefferson wrote, it was necessary “to
look forward to distant times, when our rapid multiplication will expand
itself beyond those limits, & cover the whole northern, if not the southern
continent, with a people speaking the same language, governed in similar
forms, & by similar laws.” Americans could not “contemplate with satisfaction
either blot or mixture on that surface.” Admittedly, it was not only
a belief in the need to preserve his vision of a white yeoman republic that
fueled Jefferson’s hostility to using western lands to deal with the problem
of slavery. Jefferson also shared Madison’s view that corruption would be
less likely to damage a large republic. “Had our territory been even a third
only of what is,” Jefferson observed to Nathaniel Niles, the outcome of
the Sedition crises might have been radically different. Echoing Madison’s
argument in Federalist 10, Jefferson noted that “while frenzy and delusion
like an epidemic, gained certain parts, the residue remained sound and
untouched.”16 The West should be saved for virtuous white yeoman and
not become a dumping ground for dangerous freedmen.
Gabriel’s Rebellion demonstrated the limits of Republican thought. By
using the language of American constitutionalism – particularly the potent
rights discourse of the revolutionary heritage – as a way to rally support
for their insurrection, Gabriel and his followers exposed a profound contradiction
in American constitutional thought. The response of the Virginia
legislature to the rebellion evinces its reluctant recognition not only of
the danger posed by slavery, but of the particularly grave danger posed by
slaves living in a society whose political ideology was founded on notions
15 “Confessions of Ben, Alias Ben Woolfolk, 17 September 1800” in Gordon S.Wood, ed.,
revised ed., The Rising Glory of America, 1760–1820 (Boston, 1990), 357–58.
16 “President Thomas Jefferson to Governor James Monroe, 24 November 1801,” inWood,
Rising Glory, 365. Jefferson to Nathaniel Niles, March 22, 1801, The Thomas Jefferson
Papers, Series 1. General Correspondence, 1651–1827. Available online from the Library of
Congress at http://memory.loc.gov/ammem/collections/jefferson papers/index.html.
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The Consolidation of the Early Federal System, 1791–1812 537
of liberty and equality. Ironically, the more elitist and deferential views of
Federalists allowed them to be more inclusive than their Jeffersonian counterparts.
Precisely because all men were not created equally as potential
political actors, Federalists could accommodate blacks, Indians, and even
propertied women in their vision of an expanding federal Republic.
Just as the principles of universal liberty and equality that animated the
Revolution and republican constitution-making inspired Gabriel’s rebels –
as they had African American attempts to gain freedom in the Northern
states after the Revolution – some American women also found in them a
basis on which to seek more equitable treatment. Much as blacks in colonial
America had experienced occasional, if temporary, opportunities to avoid
permanent enslavement, some women in colonial America had enjoyed significant
independence from male domination. Both in the ruptures of religious
life caused by the Great Awakening and in the developing commercial
life of the colonies, women had occasionally found meaningful avenues into
public life and a public voice. The disruptions of the Revolution, as well,
forced or freed many women to make political choices, including whether to
follow their husbands into patriotism or loyalism. One might have expected
the Revolution and constitution-making to have directed American society
toward further freedom and equality for women. Many women indulged
exactly that expectation, only to see it dashed.
Abigail Adams had greeted the Revolution in 1776 by calling on its leaders
to “remember the ladies.” In the 1790s, American women received with
open arms and ready minds the egalitarian arguments of England’s Mary
Wollstonecraft and her French, post-Revolutionary counterparts. Widely
read in the United States,Wollstonecraft and others were joined by a number
of (mostly female) American feminists: essayist and playwright Judith
Sargent Murray (a Federalist); novelist and journalist Charles Brockden
Brown; and less prominent supporters in the newspapers or in the occasional
public speech or demonstration. Priscilla Mason captured the fervor
in 1793, observing in her salutatory oration to the Young Ladies’ Academy
of Philadelphia how men had “seized the scepter and the sword . . . [given]
laws to society . . . denied women the advantage of a liberal education” and
“doom’d the sex to servile or frivolous employments, on purpose to degrade
their minds, that they themselves might hold unrivall’d, the power and
pre-eminence they had usurped.” Other women occasionally seized public
space, taking to the streets in support of the French Revolution or attending
the Philadelphia productions of feminist plays written by Murray and other
women.17
17 “The Salutatory Oration, Delivered by Miss Mason,” in The Rise and progress of the Young-
Ladies’ Academy of Philadelphia (Philadelphia, 1794), 92.
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Yet the only formal step that elevated the constitutional standing of
women in these years was the temporary enfranchisement of women in one
state. New Jersey’s enfranchisement of women by constitution in 1776 was
confirmed by statute in 1790, but was followed nowhere else. Even ,then,
enfranchisement was taken to extend only to single women, not to femes
coverts – daughters and wives under the legal protection and control of fathers
and husbands – and was eliminated altogether in a general reform of the election
laws in 1807 (a reform that also rolled back African-American voting
rights).
While some women placed their faith in the promise of equality articulated
by the Declaration of Independence and other statements of revolutionary
ideology, gender inequality remained embedded in law and social
practice. The ideology of republicanism adapted itself to this inequality
by its celebration of Republican Motherhood. American men (and many
women, for that matter) insisted that natural distinctions between the sexes
implied a republican role for women legitimately different from that of men.
Women were ill equipped to partake of public liberty and equality, according
to this view, but they were ideally suited to preserving revolutionary
principles in their capacity as mothers and educators of their children in
moral and political virtue. Essential to this model of the republican family
was the legal notion of the feme covert, which preserved the family by unifying
ultimate authority and politico-legal personality – not to mention the
property that underlay public power – in the husband and father.
The contest between emerging ideologies of gender equality and the traditional
legal notion of feme covert emerged starkly in the Massachusetts case,
Martin v. Commonwealth (1805), in which the son of a loyalist father sought
to reclaim his mother’s land that had been forfeited during the Revolution.
James Sullivan, the state’s Attorney General, rested his arguments on certain
assumptions that demonstrate that ideas of gender equality had gained a
tentative foothold in American legal thought. Although hardly widespread,
the cultural availability of these arguments at this time is one measure of
the change wrought by revolutionary ideology. Sullivan insisted that the
mother had chosen freely to follow her husband out of Massachusetts and
adhere to the British, rightly depriving her (and her heirs) of her land. She
could not escape her membership in and obligations to the state by pointing
to the authority of her husband, as the younger Martin now argued. Like
all women, she bore the privileges and responsibilities of a constitutional
actor in her own right. Her choice to withdraw from Massachusetts during
the Revolution was hers alone.18
18 Martin v. Commonwealth, 1 Mass 347 (1805).
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The Consolidation of the Early Federal System, 1791–1812 539
But Sullivan lost. The court held that Martin’s mother had been a feme
covert. Her withdrawal from the state had been her husband’s doing, not her
own. Any attempt on her part to resist that withdrawal – to choose patriotism
over her husband’s treason – would itself have been wrong. The principle
of the feme covert was more fundamental than principles of treason or
even the principle of equality for which Massachusetts had rebelled.
Although ideas of gender equality did not result in radical changes in the
law, women continued to exert their agency as constitutional actors outside
the world of courts. The political life of the new nation owed much to the
actions of women who functioned as managers of the “private” social life that
lubricated policymaking in capital cities – and occasionally in more public
roles, as in the agitation for abolition of slavery.
VII. CONSTITUTIONAL POLITICS IN COURT: MARBURY V.
MADISON AND THE SEPARATION OF POWERS
Judicial review was one of many problems in the nation’s early constitutional
development, but only one. Traditional constitutional history, however,
has misled generations by treating it as the preeminent problem. It has done
so by putting Marbury v. Madison (1803)19 at center stage in the Early
Republic’s constitutional growth. Yet as the history of the 1790s attests,
constitutionalism was hotly contested by a host of actors in American society
who chose to assert themselves outside the world of the courts. American
constitutional development in the first decades of the new nation cannot be
reduced to Supreme Court cases: neither Marbury nor the problem of judicial
review, in short, deserves quite the preeminence each has been given.
That said, it would be just as much an error to conclude that Marbury
has no importance. The case well illustrates the general, political tug of war
on questions of federalism and separation of powers that had consumed the
Republic and its elite institutions since its creation. Considered as such,
Marbury allows us to understand the role of the federal judiciary and of the
Supreme Court in particular in the era’s constitutional development. Rather
than function as a grand arbiter, single-handedly settling constitutional
conundrums from on high, the Court functioned as a tough and canny
player, one of several involved in a tense political-legal game with very
high stakes.
In its most immediate sense, the dispute addressed in Marbury v. Madison
was the product of the Judiciary Act of 1801, itself a major effort
to shift power to the center. The Judiciary Act had been passed in the
19 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
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540 Saul Cornell and Gerald Leonard
immediate wake of the disastrous 1800 election by a lame-duck Federalist
Congress. Along with several other statutes, it dramatically expanded the
one branch of the federal government – the judiciary – most thoroughly
insulated from popular power. President Adams rapidly appointed large
numbers of Federalists to the posts created by the new legislation, many of
whom were life-tenured. Just weeks before Jefferson’s inauguration, Adams
also appointed John Marshall to the vacant Chief Justiceship of the United
States. And, just hours before the actual ceremony, Adams made a final round
of “midnight” appointments.William Marbury, named a justice of the peace
for the District of Columbia, was one of them, but never received his commission
in the end-of-term bustle. After Jefferson directed his secretary of
state, James Madison, not to deliver the appointees’ commissions, Marbury
sought a writ of mandamus from the Supreme Court compelling delivery.
For the Court, Marshall insisted that Marbury had a right to his commission,
but held that section 13 of the Judiciary Act of 1789, empowering the
Court to issue the necessary writ, violated the Constitution and could not
stand.
For generations it has seemed that Marbury’s importance lay in this
allegedly foundational act of judicial review rather than in the dicta that
called on Jefferson to do right by one obscure nominee to one minor office.
But Marbury’s significance did not lie in its exercise of the (already established)
power of judicial review to strike down a minor portion of a Federalist
statute. It lay in the opinion’s intrusion into the general constitutional
politics of the day, its judicially gratuitous defense of the lame-duck, consolidationist
power grab by the Federalists of 1801.
Few historians would still say that judicial review waited as late as 1803
to be established. During the eighteenth century, under the British regime
of Parliamentary sovereignty, significant uncertainty reigned over what
tools a court might employ to circumscribe legislative power. In post-
Revolutionary America, in contrast, the ascendant notion that only the
people were sovereign, never the government, early yielded the implication
that courts must implement only that law that was legitimately derived
from the people themselves. This was the basic principle of judicial review.
In accord with this basic principle, a handful of state courts had already
invalidated state laws under their own state constitutions before ratification
of the Federal Constitution. James Iredell, a leading North Carolina
lawyer and future Justice of the U.S. Supreme Court, clearly articulated the
theory behind their action in a newspaper essay of 1786. Precisely anticipating
the principles of Marbury, Iredell argued for judicial review as a
matter of inexorable logic: if all branches of the government, including the
judiciary, were bound by a Constitution that represented the sovereign people’s
will, and if a case presented judges with two ostensible laws, one the
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The Consolidation of the Early Federal System, 1791–1812 541
act of the legislature and the other the act of the sovereign people, the judiciary
must apply the Constitution, which was the act of the people, and disregard
the statute, which was merely the act of the legislature. The judges
were not reaching out to strike down the acts of the legislature. Rather,
the judges were applying appropriate law to the adjudication of a case
before them.
As Iredell and others were well aware, constitutions and bills of rights
were far more than tools of judicial action. They were written to guide every
branch of government and to keep constantly before the people the most
fundamental principles of popular government. Indeed, the Constitution
might have been held interpretable only by the people and their legislatures
in the normal course of politics and not by the judiciary at all. But that
possibility did not survive the early years of the Republic. Another possible
limitation was that a power of judicial review indeed existed, but extended
only to the judiciary’s protection of its own institutional and jurisdictional
“rights.” Sometimes intimated, this approach was never consistently put
in effect. Rather, from the very beginning, judicial review protected the
individual, constitutional rights of the litigants before the court.
The Framers of the Federal Constitution seem generally to have assumed
that the judiciary would exercise a power of review, but also thought it
unlikely to prevail in any instance where the concerted political will of a legislative
or popular majority opposed its exercise. Throughout the Philadelphia
Convention, Madison considered a congressional veto the only practical
device for defeating the licentious tendencies of the state legislatures,
notwithstanding the availability of judicial review of state legislation by
way of the Contracts Clause and other substantive provisions of the Constitution.
In Federalist 78, Hamilton accepted the Anti-Federalist charge that
the Constitution would permit judicial review, but denied this meant judicial
supremacy. Like Iredell, he insisted that judicial review reflected the
supremacy of the people over legislators and judges alike, not the supremacy
of any branch over another. And as a practical matter, the judges could never
muster the resources necessary to control the political branches of the government,
for judges possessed powers neither of purse nor sword to enforce
their decisions. Even with the power of judicial review, Hamilton concluded,
the judiciary remained “the least dangerous branch” of the federal
government.
Just as a handful of state courts had begun to exercise powers of review
before 1789, review powers were generally assumed in the new federal
courts after ratification. Marbury may have been the first case in which the
Supreme Court made a point of invalidating a federal statute, but the previous
decade had periodically seen decisions informed by the idea of constitutional
review. In 1792, for example, a federal circuit court invalidated
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542 Saul Cornell and Gerald Leonard
a Rhode Island stay law under the Contracts Clause. The same year, federal
circuit courts considered the federal Invalid Pensioners Act, some finding
it unconstitutional and others using a strained construction to render it
valid. In VanHorne’s Lessee v. Dorrance (1795), Justice Paterson on circuit
overrode a Pennsylvania statute as inconsistent with both the Pennsylvania
constitution’s guarantee of the jury right and its guarantee of fundamental
property rights. In Ware v. Hylton (1796), the Supreme Court itself invalidated
a North Carolina sequestration statute under the Supremacy Clause
because the statute conflicted with the Treaty of Paris. The Court also
gave full consideration to the constitutionality of the federal carriage tax in
Hylton v. U.S. (1796), ultimately upholding it on the merits. When Marbury
invalidated a portion of the Judiciary Act in 1803, then, the Court was exercising
a largely uncontroversial power. It was the political context and the
political content of the opinion that made Marbury explosive, intruding as
it did into the ongoing battle between Jefferson and the Federalists, and
delivering an extra-judicial lecture to the new ruling party by the new
Federalist chief justice.20
Perhaps some of Marbury’s traditional status as a landmark in the history
of judicial review can be preserved, though. Arguably, Marshall’s opinion
finally rendered the practice routine. Even firm advocates had insisted that,
since the Constitution placed initial responsibility for elaborating the Constitution
in the legislature – the body closest to and most readily accountable
to the sovereign people – the judiciary should overrule statutes on constitutional
grounds only in the very clearest cases. Marbury, in contrast, can be
read to treat judicial review as routine rather than exceptional, opening the
door to decisions like McCulloch (1819), in which Marshall would indeed
intimate a kind of judicial supremacy in constitutional interpretation.
Still, before 1803 and for a good few years thereafter, judicial review was
widely embraced as a natural extension of popular, not judicial, supremacy.
Acceptance of the premise of popular sovereignty implied that the judiciary
was nothing very special or very dangerous, as Hamilton had asserted. Popular
sovereignty implied that each branch of government in the American
system had equal, coordinate authority to interpret the Constitution and
all other applicable laws in the course of its duties.
What complicated matters was that, after Adams’ defeat in 1800, the
judiciary had become the last redoubt for Federalists at the national level.
Driven perhaps equally by devotion to law and hostility to Jeffersonian
demagogues, Marshall took advantage of judicial review to lay down law
to the Jeffersonian politicians on questions of separation of powers. Seven
20 VanHorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304 (C.C.D.Pa. 1795); Ware v. Hylton, 3 US
(3 Dall.) 199 (1796); Hylton v. U.S., 3 U.S. (3 Dall.) 171 (1796).
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The Consolidation of the Early Federal System, 1791–1812 543
years after Marbury, in Fletcher v. Peck (1810), he would do the same, this
time laying down law to the radical “Old Republican” wing of the Jeffersonian
movement, the heirs of the Anti-Federalist tradition, on questions of
federalism. Judicial review by itself raised little controversy. It was the questions
of separation of powers and federalism, with respect to which Marshall
exploited the “l(fā)egal” character of judicial review, that raised hackles.
Questions of separation of powers under the Constitution already had
an important history by Marbury’s time. The Constitution, of course, had
separated the powers of the national government among three branches
and defined the powers and duties of each more or less carefully. In theory,
this separation ensured that every exercise of power might be checked
by other exercises of power. Different governmental institutions could and
would check each other because their functions designedly overlapped: the
president might veto legislation, the Senate would deliberate on presidential
appointments, the courts would review the acts of the other branches.
The extent of this overlap, however, could never be defined with precision.
What, for example, were the obligations of judges under Article III?
Were they free to accept assignments from the executive branch? Most of
the early Supreme Court Justices concluded that they were, and repeatedly
accepted such assignments. Chief Justices Jay and Ellsworth both undertook
diplomatic missions while on the Court. Several Justices accepted the
role of federal pension commissioner during their tenure. What about advisory
opinions? Would judges overstep their bounds by offering opinions
on legal questions before cases raising those questions reached their courts?
Or was it in fact an obligation of the judiciary to offer legal opinions when
asked, thus participating in the legislative and executive processes? Some
of the Justices publicly delivered advisory opinions in 1792 when the constitutionality
of the Invalid Pensioners Act was brought into question.
And many Justices offered advisory opinions to executive officers and others
both formally and informally in a variety of circumstances during the
1790s, apparently with no more qualms than the many state judges who
have written formal advisory opinions from that day to this. In 1793, the
Justices famously declined to offer an advisory opinion when requested by
PresidentWashington (by way of Jefferson), but this was no admission that
federal judges lacked constitutional power to render such opinions. The
Justices merely exercised a discretion not to grantWashington’s request on
that occasion, in part to save the Court from involvement in the particular
political controversy that that case might have brought.
Marbury’s part in separation of powers controversies arose not because the
power of judicial review as such was doubted, but because Marshall used
the case to lecture Jefferson on the scope of presidential power, exhibiting
the Federalists’ readiness to make the least dangerous branch as dangerous
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544 Saul Cornell and Gerald Leonard
as possible to the Jeffersonian branches of the government. In the very case
in which Marshall launched his supposed campaign to entrench the separation
of law from politics and to defend the Court’s right to say what the
law is, the “great Chief Justice” indulged in a legally irrelevant, political
provocation to the executive branch. For, while adjudging the statutory
basis for the Court’s jurisdiction in the case invalid, Marshall proceeded to
advise Jefferson of his obligation to see to the delivery of the commissions
of a collection of Federalist judicial appointees. Though the Court acknowledged
its lack of authority actually to hand down such a judgment in the
case, Marshall implied that the judiciary could give law to the executive on
the executive’s own obligations in any case. The Court thus stretched the
constitutional principle of separation of powers to intervene in the national,
politico-constitutional debate that had arisen out of the election of 1800 –
a conflict more about federalism than about separation of powers – all the
time insisting, as part of that debate, that it was only applying the law.
For the Jeffersonians, Marbury’s trespass on executive authority was no
isolated provocation, but was of a piece with the long-term campaign of the
Federalists. The opinion recalled for them the equally gratuitous lectures
on Federalist constitutionalism that Federalist judges had used to bully
grand juries throughout the 1790s, especially in the period of the Alien
and Sedition Acts. It confirmed, for anyone in need of convincing, that the
Federalists were determined to create a judicial stronghold from which to
preserve the consolidationist gains of the 1790s in the wake of their crushing
electoral defeat in 1800. Just as Marbury’s dicta seemed to replicate the
Federalist judicial excesses of the 1790s, so its defense of one of Adams’s
“midnight” appointees seemed an effort to vindicate the Federalist Judiciary
Act of 1801 as a step toward judicial supremacy over the popular branches.
To the Jeffersonians, Marbury perverted the separation of powers to preserve
Federalist power in the aftermath of the Federalists’ political defeat
in 1800.
The Jeffersonian response was, of course, not only to ignore Marshall’s
extra-judicial endorsement of Marbury’s claim but also to repeal the Judiciary
Act itself, a move in which the Court acquiesced (possibly over
Marshall’s objections) in Stuart v. Laird (1803).21 During the original debate
over the Bill of Rights, Jefferson had looked to the judiciary as a potential
bulwark against tyranny. By the early 1800s, however, expansive federal
– and Federalist – judicial power threatened not only a contraction
of the power of other branches but an erosion of states’ rights and popular
sovereignty. Jefferson attacked Federalists for turning the judiciary to
21 Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803).
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The Consolidation of the Early Federal System, 1791–1812 545
“party purpose,” and he applauded Congress for having “l(fā)opped off a parasite
limb.” Another critic posed the issue as one between those “appointed
for life” and the “immediate representatives of the people.” Efforts to restrict
federal judicial power were understood by Federalists, meanwhile, as both
an expansion of the power of the Jeffersonian presidency and as part of a
larger agenda to promote the chaos of states’ rights at the expense of rightful
national power.
The more radical Jeffersonians wanted to go beyond mere repeal of the
Judiciary Act. Their goal was to cleanse the judiciary and restore the proper
separation of powers by impeaching the worst of the Federalist judges. The
first target was John Pickering of New Hampshire, a notorious drunk, probably
insane, and certainly not a proper man to have on the federal bench. The
use of impeachment as a political tool troubled many, however, including a
number of Republicans who doubted that Pickering’s deplorable behavior
belonged among the “high crimes and misdemeanors” that justified removal
from office. The radicals won over enough members of the Senate to convict
Pickering, but the case against their second target, Samuel Chase, was
far more complicated. Chase had used his position as a judge to denounce
Republican ideas, and the most ardent Republicans argued that impeachment
was the only tool to check the excesses of unelected judges. But more
moderate Republicans and Federalists required that an impeachable offense
be a criminal act. Impeachment, they insisted, should not be used as a
political tool. The Senate failed to convict Chase, and the episode drove
a wedge between the radical and moderate wings of Jefferson’s coalition.
Still, Chase’s impeachment and a rumored threat to impeach Marshall himself
chastened the Federalists to a significant degree. The close call showed
that Congress would hesitate to intrude too aggressively into the judicial
sphere. But it equally established that the judiciary could defend its independence
only so long as it plausibly explained its actions as distinctively
legal, divorced from politics. This settlement on the question of separation
of powers did not truly promise a future of apolitical judging, but, like the
language of federalism in politics more generally, it established the fundamental
language of constitutional politics in the courts.
VIII. CONSTITUTIONAL POLITICS IN COURT: FEDERALISM
As much as Marbury raised separation of powers problems for the Jeffersonians,
the chief focus for constitutional conflicts involving the courts was
the problem of federalism. The rift that had divided Federalists from Anti-
Federalists over the division of authority between the states and the central
government only widened in the decade after the Constitution was ratified
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546 Saul Cornell and Gerald Leonard
and the Bill of Rights adopted. At one extreme stood the radical states’
rights theories advanced by Jefferson in the Kentucky Resolutions. Federalists
rejected this theory and continued to affirm their commitment to a
powerful central government.
Although committed to the Federalist vision of a strong central government,
including a powerful Supreme Court, Marshall was not a Hamiltonian
consolidationist, seeking to build a British-style regime with a powerful
standing army to enforce its will. Rather Marshall is better understood as
an expositor of a distinctly legalistic style of Federalist ideology. Marshall
shared with Hamilton a suspicion of localist democracy, which he believed
invariably threatened the fundamental rights of property and contract on
which civilization rested. In his view the rule of law required rigid adherence
to certain basic principles, particularly the principles of contract and
property entrenched in the common law and incorporated into the Federal
Constitution’s Contracts Clause. On these questions it was manifestly the
duty of the judiciary to preserve a uniform federal law without obstruction
from individual state governments.
Marshall was not, as his enemies charged, a consolidationist bent on
destroying all state authority; in his view state governments would have
wide latitude to act within their appropriate spheres of authority demarcated
by the Constitution. But the principle of popular sovereignty did
not mean that the people could do whatever they wanted, particularly with
regard to contract and property rights. The Constitution established legal
mechanisms and principles that the people could not change at will but
only by the mechanisms of Article V. In practice, then, even the political
branches and the states must be controlled by law, and the law’s integrity
must be preserved by the ultimate authority of a single legal tribunal like
the national Supreme Court.
In contrast, the Jeffersonian model of federalism deemphasized the production
of a coherent national law and posited instead the indispensable
autonomy of the several republics that constituted the nation. For Jefferson,
the people were sovereign in a quite active sense, and they normally
expressed their sovereign will through the medium of the state governments.
Jefferson viewed American government as a pyramid. At the foundation
was the mass of politically equal, male, white citizens, each yielding
only so much power over his own life as necessary for good government
and consistent with the continued political equality of the citizenry. As one
moved up the structure of the pyramid, power would be delegated in a
limited fashion: local, state, and federal governments enjoyed successively
less authority and no more power than was absolutely necessary to execute
their political functions. The national government was the most limited
of all, entitled only to so much power as it absolutely required to secure
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a republican peace among the Union’s constituent republics and between
the Union and the world. While committed to Union, Jeffersonians were
not willing to achieve this goal at the expense of the liberty enjoyed by
citizens and the states. Jeffersonians were not enemies of a coherent system
of law. They did, however, oppose the creation of a powerful central government,
since it would inexorably erode liberty. Consistent with that position,
they tended to resist the Marshall Court’s accumulation of broad authority,
notwithstanding the Court’s presence at the only spot in the system from
which uniform law might be imparted to the nation.
Each of these opposing visions could be gleaned from the text of the
Constitution. Jeffersonians could emphasize that the Constitution granted
only limited, enumerated powers to the national government and that the
document had been ratified by the people of the states, rather than by the
people as a single body. In this vision, the federal courts were not superior to,
but parallel with, the state courts. Federalists could point out that, although
the national government’s sphere of action was limited, within that sphere
it was supreme and entitled to all the powers necessary to be effective.
Moreover, it was entitled to construe its powers generously in pursuit of
its legitimate goals and to enforce its laws without regard to the objections
of the state governments. Here, the tendency was to elevate the federal
courts as an authority that might discipline the unruly states.
The history of federalism in this period can be seen as a history of political
negotiation and compromise between these two basic viewpoints. A
word of caution, though: in those days, there was no institutionalized twoparty
system. As described above, political alliances were fluid, politicoconstitutional
action took many forms, and the idioms of states’ rights and
national power might be deployed by anyone at the right strategic moment.
Still, these two idioms were indeed fundamental, and to the extent that selfidentified
Republicans and Federalists increasingly came to dominate the
public discourse of constitutionalism, they generally drew on these two
basic perspectives to distinguish themselves from each other.
The point of departure in negotiating the roles of the courts was the framing
and ratification of the Constitution, itself a process of negotiation and
compromise among those advocating consolidation and those favoring state
autonomy. Born of frustration with the mere league that was the Articles
of Confederation, the Constitution itself was a major step toward consolidation.
If the Framers had prudently stopped short of full consolidation
and even short of granting the new government certain powers that Madison
thought essential, they had nevertheless augmented federal power and
placed specific limits on the states, even in their regulation of apparently
internal matters like contract. The addition of the Bill of Rights – particularly
the all-important Tenth Amendment limit on federal power – and the
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later development of a constitutional theory of strict construction were the
two key elements in their continuing struggle against the Federalist vision
of a strong national government.
When the original Judiciary Act of 1789 established the federal court
system as a national arm intruding into the states, it appeared that another
consolidationist step had been taken. The Act, however, fell far short of
creating the “imperial” establishment that the Anti-Federalists feared, that
the Constitution itself arguably permitted, and that the Judiciary Act of
1801 would more closely approach. It established only a modest number
of federal courts, denied federal-question jurisdiction to the federal trial
courts except in certain narrow areas, and imposed strict limits on federal
diversity jurisdiction and the Supreme Court’s appellate jurisdiction. The
ability of the federal courts to reach into the lives of most Americans was
therefore extremely limited. The Anti-Federalist fear that citizens would
be forced to litigate issues in federal courts hostile to liberty and far from
the localities in which issues arose would only rarely come to pass.
That said, the Act granted the Supreme Court jurisdiction to review the
judgments of the state courts on federal questions and so held out at least
some promise of federal judicial control of federal law. The provision caused
little controversy at first, but the federal courts did move to bring state law
in line with their vision of the Federal Constitution whenever they got hold
of the necessary cases. Thus, in Ware v. Hylton (1796), the Supreme Court
invalidated North Carolina’s statutory effort to interfere with the British
debt collection that was guaranteed by the Treaty of Paris. Few questioned
the Court’s power to do so. The federal circuit courts, as well, used the
Contracts Clause to invalidate the occasional state law. Two federal courts
even granted writs of certiorari to transfer cases involving federal questions
from the state courts where they were pending to federal court. The state
courts refused to recognize the writs, however, and were sustained by their
legislatures. In both cases the federal courts backed off.
A far more violent states’ rights reaction to federal court action came
when the Supreme Court asserted its jurisdiction over the state of Georgia
in another contract case, Chisholm v. Georgia (1793). Chisholm was a South
Carolina resident and creditor of the state of Georgia suing the state for
payment. Georgia claimed immunity as a sovereign state. The Court held
that Article III’s grant of federal jurisdiction in cases “between a State and
Citizens of another State” empowered the federal courts to sit in judgment
on the states even when sued by private parties.22 This claim of judicial
power over a sovereign state proved highly controversial. If a mere private
person could sue an unwilling state in federal court, some argued, the states
22 Chisholm v. Georgia 2 U.S., (2 Dall.) 419 (1793).
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The Consolidation of the Early Federal System, 1791–1812 549
would “have relinquished all their Sovereignties, and have become mere
corporations.” Newspaper essayists predicted that suits against the states
would subvert the balance of power within the federal system. The result
would be the dreaded consolidation predicted by Anti-Federalists and the
destruction of liberty: “the consolidation of the Union for the purpose of
arbitrary power . . . the downfall of liberty and the subversion of the rights
of the people.” Another claimed the grant of federal jurisdiction had been
drafted with “craft and subtility” by lawyers and was another example of the
conspiratorial designs of “aristocrats to reduce the States to corporations.”
The use of Anti-Federalist rhetoric was not surprising. What was more
remarkable was the widespread political support for this critique. The
Eleventh Amendment, which overturned Chisholm and reaffirmed a measure
of state sovereign immunity, was adopted by a Congress dominated by
Federalists. A full explanation of the Federalist position remains as elusive
as the amendment’s precise meaning, which the courts have long treated
as related only tenuously to its text. But the evidence suggests broad commitment
to the idea that the Constitution must have incorporated state
sovereign immunity and that Chisholm, in other respects a perfectly conventional
exposition of Federalist principle, had simply misunderstood that
basic commitment. Like the Judiciary Act before it, the Eleventh Amendment
suggested a readiness, even among Federalists, to see basic principles
of private law go unenforced when the alternative was violation of constitutional
(and common law) principles like sovereign immunity. Necessarily,
too, the Constitution lived within politics – sometimes politics of the most
elevated sort that might vindicate or vitiate sovereign immunity as a matter
of principle, sometimes a politics of immediate interest and practical
advantage. As it happened, several states at the time faced law suits that
the amendment would allow them to avoid.
Following Chisholm, the Supreme Court avoided major controversies over
federalism until Fletcher v. Peck in 1810.23 Under constant threat from the
Jeffersonians after 1801, Marshall and the Court had maintained a fairly
low profile. Whether by design or mere circumstance, they afforded the
Republicans under Jefferson and Madison the room to drift in a moderately
nationalist direction themselves. But in 1810 Marshall seized on a case in
which the Court’s judgment was not likely to be resisted to establish certain
nationalist, legalist, anti-populist principles. Fletcher v. Peck in many ways
encapsulates the range of possibility open to constitutional actors in the
first decades of the Republic. The Federalist viewpoint seemed to win the
battle in court and held its own in Congress. But little of Federalism could
be salvaged amid the Jacksonian ascendancy of the next generation.
23 Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).
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550 Saul Cornell and Gerald Leonard
Fletcher v. Peck had its origins in the “Yazoo” fraud of 1795, in which apparent
wholesale bribery of the Georgia legislature resulted in a mammoth
land sale to a group of speculators at a bargain price. The new owners busily
resold such title as they had (clouded not just by the bribery but also by
continuing Indian claims to much of the land) to purchasers in the Northern
states. Meanwhile, in Georgia a political movement arose to invalidate the
sale, and in 1796, a newly elected legislature passed a “Repeal Act.” That
act, however, did not actually repeal the sale, but rather declared it “null and
void” from the start as a “usurped act.” Fletcher v. Peck itself was a feigned
(arranged) case, brought years later by a third-party purchaser of Yazoo
lands against his seller to determine the validity of the purchased title.
Georgia’s “Repeal Act” represented not only an assertion of a legislative
right to review the constitutionality of legislation but also a possible challenge
to the sanctity of contract. As such it was a direct assault on Federalist
constitutionalism (and, indeed, on the constitutionalism of some members
of the Jeffersonian elite). Chief Justice Marshall’s opinion in Fletcher
addressed both of these concerns. First, legislative exercise of constitutional
review usurped judicial power, according to Marshall, and thus violated
basic principles of separation of powers. Although here the limitation was
arguably a matter only of Georgia constitutional law, Marshall indicated
his belief that it was also a matter of the very nature of legislative power.
Second, the “Repeal Act” was a clear violation of property rights, one of
the bedrock principles of Marshall’s constitutionalism, and an affront to the
Federal Constitution’s Contracts Clause. To staunch Federalists, the legislature
appeared to be replicating the excesses of state legislatures during
the Confederation period – the very evil that the Constitution had been
designed to eliminate.
Many Republicans, on the other hand, believed Georgia’s actions were
a legitimate exercise of popular sovereignty and states’ rights, an act of
popular constitutional review clearly superior to any act of mere judicial
review. The Repeal Act did not purport to be the action of one legislature
disapproving the act of a previous legislature. Rather, it was the product of a
legislature acting in a special constitutional capacity in response to peculiar
circumstance. Resolutions of a state constitutional convention, the actions
of grand juries throughout the state, and public gatherings of the people
(some more peaceful than others) had specially “invest[ed] this Legislature
with conventional powers”; that is, with the powers not just of a legislature
but of the people themselves assembled in convention. Like their colleagues
in other episodes in other states during the 1790s, the people of Georgia
had resorted to the entire range of purportedly “constitutional” actions to
put their sovereignty into practice. Exercising the powers so conferred, the
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The Consolidation of the Early Federal System, 1791–1812 551
new legislature had reviewed the passage of the original act, found it marred
by fraud and hence an unconstitutional usurpation, and declared it null and
void – without effect from the moment of its supposed enactment.
Here was a Jeffersonian expression of active popular constitutional review,
superior to judicial review. The affair was hardly uncontroversial, even
among Jeffersonians. Who, after all, was to decide when it really was “the
people” speaking? Jefferson, Madison, and much of the moderate wing of the
Republican party in fact sought a compromise solution rather than stand
fully behind the actions of the Georgia legislature. Still, Georgia’s assertion
that it must be the people – the sovereigns – not their agents who have
ultimate power to say what the law is and to interpret the Constitution drew
on and perpetuated the constitutionalism of a large swath of the American
public before and after 1789.
For Federalists, popular sovereignty could never be taken so far. The supposedly
sovereign people of a state were not competent to change the terms
of the Constitution except by Article V, nor alter the transcendent rights of
contract and property except by forsaking constitutional government itself.
Courts, not the people, interpreted and applied the law. This was not judicial
supremacy, although some were prepared to go that far; it was simply an
argument for leaving adjudicatory functions to adjudicatory institutions,
just as legislative functions must be left to legislatures. The people might
amend the Constitution and were, in that sense, sovereign. But the Constitution
of the United States (and that of Georgia) placed the judicial power in
the courts, not in the people or in the legislatures. Otherwise there would
be no reliable general law, only guesses about what a legislature or “the
people” might do next with individuals’ fundamental rights.
This was the perspective that informed Marshall’s opinion. After assuming
that the sale was a contract within the meaning of the federal Contracts
Clause, Marshall offered an empty nod to state sovereignty by refusing to
consider the bribery allegations. The Court, he said, must not presume to
tell Georgia that an act bearing all the forms of a Georgia law was no law at
all. Of course, Georgia’s legislature had already decided that matter itself.
But therein lay the problem; that the people of Georgia in their sovereign
capacity might legitimately declare their own law void could not be permitted.
The forms of law must be respected, and if the forms of law appeared
to create private, vested rights, then no court could allow an attempt to
“devest” those rights in the name of a state. The rule of law required that
private rights be governed not by mere sovereign will but by “certain great
principles of justice,” such as the rule that good faith purchasers never be
molested in their title. To assert power to the contrary, Marshall argued,
was likely inconsistent with the very idea of legislative power. Even more
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552 Saul Cornell and Gerald Leonard
to the point, it clearly conflicted with the federal Constitution’s “bill of
rights for the people of each state,” by which Marshall did not, of course,
mean the Bill of Rights, which then limited only national power. Instead, he
pointed to those provisions – the Contracts Clause along with the bans on
bills of attainder and ex post facto laws – that guaranteed individual rights
against unprincipled state majorities and subjected the states to federal
discipline.
Fletcher did not settle the rights of the Yazoo claimants in fact, although it
certainly strengthened their bargaining position. Nor did it settle the continuing
debates about the nature of the Constitution. But the case revealed a
series of rifts in the fabric of American constitutionalism. For the most outspoken
critics of the Yazoo scandal, heirs ofWilliam Manning, the actions
of the legislature and the people out of doors vindicated the ideal of popular
sovereignty. A more moderate states’ rights view, endorsed by many leading
Republicans, also persisted. While championing the “principles of ‘98,”
which looked to the states as the guardians of popular liberty, it hesitated to
endorse the extra-legal authority of the crowd. For moderates, exceptional
demonstrations of “popular sovereignty” like the Repeal Act were not the
appropriate means of solving constitutional questions.
Among the judiciary, and on the Supreme Court, a decidedly nationalist
and Federalist view flourished. The Court was the only practical guarantor of
coherence and integrity in national law and of security in those transcendent
rights of property and contract that underlay the specific arrangements
agreed to by the nation in 1787–88, and civilization in general. In Fletcher,
Marshall seized a moment when he knew the states’ rights versions of
the Constitution would not unite in serious opposition (since Jefferson
and many other Republicans were looking for a compromise on the Yazoo
affair), and he trumpeted Federalist constitutionalism with near impunity.
He would expand on this view in later cases, such as Martin v. Hunter’s
Lessee (1816) and McCulloch v. Maryland (1819),24 when the nationalizing
trend among Republicans would again clear an opportune space for him
to act.
But Marshall, though always a major player in the endless constitutional
negotiation, would never manage to vanquish those opposing visions of
constitutionalism that looked primarily to the states and even to direct
action by the people. In the twilight of his life and career, the resurgence of
states’ rights in the Nullification Crisis of 1832–3 and the Jacksonian assault
on implied-powers constitutionalism and judicial imperialism would leave
Marshall despondent.
24 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816) and McCulloch v. Maryland, 17
U.S. (4 Wheat.) 316 (1819).
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The Consolidation of the Early Federal System, 1791–1812 553
CONCLUSION: MULTIPLE CONSTITUTIONAL TRADITIONS IN
THE FOUNDING ERA – A DISCORDANT NARRATIVE
A viable system of federalism was far from secure when America entered
theWar of 1812. At various moments in the two decades since ratification
of the Constitution, powerful centrifugal forces within American constitutional
life had threatened to rend the fabric of the new nation asunder. The
Whiskey Rebellion and Gabriel’s Rebellion both had demonstrated that
loyalties remained in flux and highly negotiable. On more than one occasion,
state militias had been mobilized to protect the states against potential
tyranny of the federal government. The right to bear arms and the wellregulated
militia enshrined in the Second Amendment had not functioned
quite as Anti-Federalists had hoped. Still, in the fluid world of America’s
developing constitutional order, the notion that state militias might stand as
the final barrier against federal tyranny had come close to being tested.
It is tempting to view Jefferson and the Republicans in cynical terms,
abandoning their commitment to states’ rights when it suited their political
ambitions. Rather than see Jeffersonian constitutional ideology as a thin
veil masking their pursuit of power, it makes more sense to recognize that
Jefferson and his allies shared with the Federalists a complex amalgam
of ideas and goals about constitutional government. When two different
constitutional values came into conflict, liberty and federalism, popular
sovereignty and the rule of law, or strict construction and republicanism,
each side was forced to make difficult choices: which part of its constitutional
philosophy should it preserve and which part should it sacrifice to obtain
the desired objective?
It is also important to recall that all the various discourses of constitutionalism
available to Americans during the Early Republic existed within
a set of established structural power relations created by the Constitution.
That the states’ rights “principles of ‘98” were used to great effect at different
moments of constitutional crisis by both Jefferson and his Federalist
opponents does not make such uses unprincipled and opportunistic. The
structure of the federal system meant that such arguments were always available
for those who wished to formulate a critique of centralizing tendencies
within American constitutionalism.
In ,short, the complex history of constitutional development in the Early
Republic does not square easily with the traditional Whiggish narrative of
unfolding liberty or with neo-Federalist accounts of rising nationalism. Nor
does it square with modern anti-Whig declension narratives, in which civic
republicanism simply gives way before the onslaught of liberal capitalism.
The most accurate description of the contested constitutional culture of
the Early Republic may well have beenWilliam Manning’s suggestion that
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554 Saul Cornell and Gerald Leonard
the Constitution was “a Fiddle, with but few strings.” Many actors stepped
on the stage of American law hoping to scratch out their own simple tune
with this fiddle. Others hoped that this instrument would allow them to
create a grand symphonic vision for American law. The contentious history
of this period suggests that neither of these visions of law was entirely
successful. The early constitutional history of the new nation proved to be
more discordant than harmonious.
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16
magistrates, common law lawyers,
legislators: the three legal systems
of british america
james a. henretta
On two occasions in the late 1630s, the magistrates of the Lower Norfolk
county court in Virginia imposed extraordinary punishments on white men
accused of minor criminal offenses, ordering the sheriff to lay 100 lashes
on the bare back. This was arbitrary justice, the summary infliction of
severe corporal punishment by a few appointed justices of the peace. Eight
decades later, in 1712, the Connecticut Superior Court discovered in the
midst of a trial that the laws of colony made no distinction between murder
and manslaughter. The court immediately asked for the permission of the
Assembly to determine “by the rules of the common law” the seriousness
of the crime and the consequent sentence. Legal precedent, the rules of
the common law, would decide the defendant’s fate. Yet another eight
decades later, in 1793, Vermont Chief Justice Nathaniel Chipman declared,
“No Court, in this State, ought ever to pronounce the sentence of death
upon the authority of a common law precedent, without the authority of a
statute.”1 The legitimacy of a major criminal punishment now depended
on the sanction of a popularly elected legislature.
Arbitrary seventeenth-century magistrates, rule-conscious eighteenthcentury
common law courts, statute-enacting nineteenth-century legislatures:
in the years between 1600 and 1820, the white residents of British
North America lived under three distinct, but overlapping and interrelated,
legal systems. Each of these regimes was controlled by different personnel,
operated according to different rules and procedures, and embodied a different
legal ideology. Although all three systems were present throughout
the period, their relative importance changed significantly over time and
imparted a definable logic to the course of American law and politics. Over
1 The Superior Court Diary of William Samuel Johnson, ed. John T. Farrell (Washington,
DC, 1942), xviii; Nathaniel Chipman, Reports and Dissertations, in two parts . . . : with an
appendix, containing forms of special pleadings in several cases, forms of recognizances, of justices
records and of warrants of commitment (Rutland, VT, 1793), 61.
555
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556 James A. Henretta
time, the legal world became more complex and increasingly governed by
professional standards and influenced by centralized authorities. Initially,
most legal decisions reflected the views of local magistrates and communities.
Then, at end of the seventeenth century, common law lawyers and
doctrines challenged the supremacy of self-taught magistrates and local
customs. Subsequently, after the Revolution, elected republican legislators
enacted statewide statutes that altered the substance of the common
law and the structure of the courts that administered them. The interaction
of three causal factors – an increasingly complex economy and society,
English imperial policy and legal principles, and the ideology of revolutionary
republicanism – drove this process of legal change forward and shaped
its character. Law continued to “occur” at the local level, but larger political
and legal doctrines and institutions increasingly shaped its character and
content.
I. LOCAL PRIMACY: MAGISTRATES AND
ARBITRATORS, 1600–80
In the seventeenth century, the English settlements on the North American
mainland were widely scattered. Colony-wide institutions developed slowly.
Legal authority was fragile. However, most settlers chose to live in organized
communities – villages, townships, and counties – and to reestablish the
political and legal institutions of the English communities from which
they had come. Consequently, in North America as in England, local legal
authority rested in the hands of local oligarchies: influential selectmen,
vestrymen, and magistrates who usually lacked formal training in the law
but ruled under its authority. Foremost among these local leaders were
justices of the peace who, as in England, were men of “ample Fortunes” and
social influence. Ideally, they were also “the most able, honest and judicious
persons of the county,” as a Virginia statute put it.2 The character of the
American magisterial regime differed from that in England, however, and
varied markedly from one colony to another.
On their arrival in Massachusetts Bay in 1630, Puritan leaders bestowed
the powers of the justice of the peace on six of their company. This action
restored at least two men, Richard Bellingham and JohnWinthrop, to offices
they had held in England. As individual magistrates, the Massachusetts Bay
justices (and those in other colonies) enforced local bylaws and the statutes
enacted by the representative assembly, presided at courts that decided
2William Waller Hening, comp. The Statutes at Large: Being a Collection of All the Laws of
Virginia, from the First Session of the Legislature, in the Year 1619, 13 vols. (Richmond, VA,
1809–23), 2:69.
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Magistrates, Common Law Lawyers, Legislators 557
minor civil cases of debt, and dispensed summary criminal justice to those
they found guilty of misdemeanors, such as assault and battery, fornication
and bastardy, Sabbath-breaking, and scandal mongering. Many magistrates
exerted authority outside the courtroom by upholding the laws and customs
of the community. Thus, as Judge (and J.P.) Samuel Sewall traveled
from Cambridge to Boston one Saturday evening in 1715, he directed
shopkeepers to close up their shops, because the Sabbath had begun at
sunset.
As a body of magistrates sitting in the county-based Court of General
Sessions, the justices had broad administrative authority and responsibilities.
Court officials recorded the patents, sales, and transfers of land, and the
justices supervised a variety of local officials: churchwardens and vestrymen,
constables, tax collectors, and overseers of the poor. They also enforced laws
relating to the militia, roads, fencing, and market regulations and “warned
out” from the town or county those individuals who were not entitled to
poor relief. Finally, the county court justices awarded franchises: bestowing
licenses on ordinaries, ferries, and gristmills; granting permission for new
roads; and dispensing contracts for the construction of bridges, jails, and
other public works.
The justices’ legal powers were equally extensive. Sitting together with
a jury as a Court of Common Pleas, magistrates adjudicated civil cases –
contested debts, claims to land, contractual disputes – involving substantial
amounts of property. Meeting as a Court of General Sessions, they heard
cases of serious crimes – rape, robbery, and grievous assaults – and imposed
whippings, fines, recognizances (bonds to keep the peace), and other punishments
on offenders. Indeed, before 1690 in the colonies of New Haven,
Massachusetts Bay, Connecticut, Maine, Maryland, and Virginia magistrates
ran jury-less, inquisitorial regimes of criminal justice and summarily
decided nearly all non-capital cases. The justices and their courts stood at
the center of the community, defining its priorities, setting its taxes, safeguarding
its property, and protecting its moral character by relentlessly
prosecuting deviant residents.
In fact, conditions in the colonies encouraged magistrates to assume even
greater authority than their counterparts in England. Because Virginia (and
the other colonies in which the Church of England was legally established)
did not create English-style ecclesiastical courts, justices assumed many of
the functions of those courts, such as recording wills and probate inventories
and regulating marriage and sexual behavior. Twice a year, the justices in
Virginia received written reports on the morals of the parish from vestryappointed
churchwardens. However, this justice-run system of moral discipline
was mild for the white population, for it punished only the worse
offenders and then only sporadically.
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558 James A. Henretta
In Maryland, justices assumed control over orphans’ affairs, also a function
of English ecclesiastical courts and, because of high adult mortality in the
Chesapeake region, a pressing problem. To protect the property and welfare
of orphans, the Maryland assembly enacted a series of acts between 1658
and 1688. This legislation gave county justices the authority to account for
the orphans’ assets, appoint and dismiss guardians, and bring presentments
against guardians who abused the persons or property of their charges.
Because these powers derived from a statute and resided in a single court,
Maryland justices had greater authority over orphans’ affairs than their
ecclesiastical counterparts in England.
The character of magisterial rule varied considerably from one colony to
another. When the General Court in Massachusetts Bay established a system
of county courts in 1635, it placed them in the hands of existing magistrates,
all of them elected. The General Court also provided for the appointment of
local “assistants” nominated annually by town freemen, that is, by church
members. This elective system – and a similar process for choosing town
selectmen – gave Massachusetts Bay a stable and respected ruling elite.
Year after year, the freemen of the towns reelected or renominated virtually
the same slate of magistrates, lay assistants, and selectmen. In Ipswich in
Essex County, people usually referred to the selectmen as the “7 men,”
suggesting their stature. Just sixteen individuals held 62 percent of the
selectmen positions in the fifty years after 1636. In Essex County as a whole
between 1650 and 1684, only twenty-four men served as justices; four
justices sat on the bench until their deaths and averaged twenty-nine years
of service.
Throughout most of New England, the magistracy demanded deference,
but ruled primarily through consensus. Although residents sometimes
resented the summary justice dispensed by the magistracy, there were relatively
few instances of the disrespect for authority shown byWilliam Hatton
of York County, Virginia. In 1662, authorities hauled Hatton into court “for
abuesing severall justices of this County calling them Coopers, hogg trough
makers, Peddlars, [and] Cobblers.”3 In Rhode Island and Plymouth Colony,
however, anti-authoritarian settlers acted collectively to limit the power of
magistrates; in those colonies, juries had great authority and decided virtually
all civil and criminal cases.
Consensus of a more complicated sort characterized the religiously and
ethnically diverse mid-Atlantic colonies of Pennsylvania, New Jersey, and
New York. In 1685,William Penn reported that the Delaware Valley held
a “Collection of divers Nations in Europe: As, French, Dutch, Germans,
Swedes, Danes, Finns, Scotch, Irish and English.” There, Penn boasted,
3York County Orders, Oct. 24 1662, Virginia State Library, Richmond (hereafter, VSL).
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Magistrates, Common Law Lawyers, Legislators 559
“they live like People of One Country.” In fact, this tranquility reflected
the political and legal dominance of the Society of Friends. Between 1680
and 1710, all of the governors and the most of the legislators and Supreme
Court judges in the colonies of Pennsylvania andWest Jersey were Quakers.
Friends also accounted for 79 percent of the magistrates who served during
those three decades, nearly twice their proportion in the population.
Quakers likewise predominated in the office of sheriff, here as elsewhere a
lucrative position, and even in the ranks of the constables, the least desirable
court-related office. Likewise, two-thirds of the members of grand and trial
juries were members of the Society of Friends, although roughly two-thirds
of all civil plaintiffs and civil and criminal defendants were non-Quakers. To
ensure that residents fulfilled their public responsibilities, magistrates fined
those who missed jury duty and lodged 80 percent of contempt citations
for missing jury duty against Quakers.
If Quakers dominated the magistracy and the legal system, they did not
corrupt it. The verdicts issued by Quaker-dominated trial juries showed no
ethnic or religious bias, whether in the statistical calculations of modern
historians or, as far as one can tell, in the minds of the non-Quaker residents.
Apparently convinced that they would receive justice in the courts, non-
Quakers in the Delaware Valley used the Friends-controlled legal system in
numbers proportional to their share of the population. Such usage by minority
or maltreated ethnic or religious groups was far from inevitable – or even
usual. Following the creation of the Dominion of New England in 1684, for
example, many Puritan residents of Essex County, Massachusetts, refused to
use the new legal system controlled by the allies of the Anglican governor,
Sir Edmund Andros. A similar boycott of the judicial system occurred in
New York City after 1673, when many Dutch residents avoided the Mayor’s
court and other legal institutions taken over by English authorities.
Like the Dutch, English Puritans on Long Island worried that the regime
imposed by the Duke of York would endanger the autonomy of their town
governments. And with good reason. The Duke’s Laws of 1663 restricted
the jurisdiction of the local Courts of Constable and Overseers to small
causes and directed that the Court of Sessions, which was composed of
justices of the peace appointed by the governor, hear all appeals. Indeed,
in 1683, a new statute replaced the Long Island town courts with county
courts staffed by appointed magistrates. An Act for Establishing Courts of
Judicature in 1691 completed this process of centralization (and anglicization)
by streamlining the organization of the county courts and providing
for review of their decisions by a Supreme Court. Although legal authority
in New York remained fragmented because of the resistance of Dutch
and Puritan residents and the existence of private manorial courts, centrally
appointed magistrates became a powerful force. In 1718 Anglican
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560 James A. Henretta
magistrates in Queens County ignored Presbyterian allegations that taxes
levied to support the Anglican minister were contrary to the intent and the
letter of the law, and imposed heavy fines on Presbyterians who had forcibly
resisted paying them.
This authoritarian potential of magisterial rule, long a conspicuous feature
of criminal cases, received its fullest expression in Virginia. During
the first decade of settlement, Virginia Company governors and private
patent holders ruled the settlers in military-like fashion, trying criminal
defendants without juries and ignoring the procedural protections of the
common law in civil cases. Then in 1618, at the behest of the Virginia
Company, Governor George Yeardley reconstructed the political regime,
organizing the disparate settlements into a single “body corporate” and
establishing a representative assembly of property owners. The legal regime
quickly evolved into a county-based system controlled by members of the
local gentry. In a series of laws enacted between 1624 and 1634, the assembly
consciously sought to establish a legal order “as neare as may be . . . to
the laws of the realm of England.” It created eight counties, each administered
by a monthly court, and bestowed on local magistrates the authority
“to doe and execute, whatever . . . [English] justices of the peace may do.”4
Appeals from the decisions of monthly courts proceeded to the General
Court, which was composed of the governor and council, and then to the
assembly, which until 1683 sat as a court of final appeal.
Many members of theVirginia assembly and council also served as justices
of the peace in the counties, which they ruled with an iron hand. Before
1660, juries were virtually non-existent in both civil and criminal trials, and
beginning in the 1680s, the assembly granted single magistrates increasing
authority to inflict summary punishments on those of African and Indian
descent. By 1700, the justices had also won the right to nominate candidates
for vacant positions, thereby wresting control of the courts from the royal
governor. The county courts had become self-perpetuating oligarchies of
justices who held multiple public offices and shared among themselves the
lucrative positions of sheriff, coroner, and public notary. Clearly, they formed
local elites: the 215 men who served as magistrates in Lower Norfolk,
Lancaster, Northumberland, and York counties between 1634 and 1676
owned 1,000 acres of land on average, at least double the holdings of most
planters and considerably more than the average of 200 acres owned by men
who served in the minor offices of jurors and appraisers.
The avarice of Virginia’s early political elite nearly led to its demise.
Living far from the center of imperial authority, the Virginia grandees
governed virtually as they wished, especially during the post-Restoration
4 Hening, Statutes, I, 168–69.
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Magistrates, Common Law Lawyers, Legislators 561
regime of Governor William Berkeley (1660–76). Only a strong public
outcry in 1673 forced the repeal of an act giving justices of the peace a regular
salary in addition to their other emoluments. Two years later, the anger of
poor planters against Indians, high taxes, and plundering officials fueled
a rebellion led by Nathaniel Bacon. Bacon’s “Manifesto and Declaration
of the People” asserted, “all the power and sway is got into the hands of
the rich” and demanded an end to the rule of wealthy “parasites,” many
of whom were magistrates. As the pragmatic reforms enacted by a newly
elected assembly indicated, Bacon’s uprising did not seek to overthrow the
magisterial order, but rather to oust a corrupt elite.
The eventual result was a more responsive and responsible system of
gentry government that reduced the taxes of ordinary white planters and
gradually won their respect, in part by upholding slavery and a repressive
system of racial domination. Indeed, with respect to the white population,
the political elite of early eighteenth-century Virginia governed in much
the same firm but consensual manner perfected by the Puritan and Quaker
leaders of the seventeenth-century New England and mid-Atlantic colonies.
In each region, transplantation of local legal institutions and local magisterial
rule – town and county governments run by justices of the peace –
was the great accomplishment of the first century of English settlement in
North America.
II. CENTRALIZATION: IMPERIAL AUTHORITY, LEGALISM,
AND COMMON LAW, 1680–1720
Surveying the state of early American legal history in 1984, Stanley N.
Katz noted that an impressive galaxy of scholars – Roscoe Pound, Perry
Miller, and Grant Gilmore – had managed to write histories of American
law that largely ignored the colonial period and located the creative
period of legal development during or immediately after the Revolution.5
Two other influential studies, William N. Nelson’s Americanization of the
Common Law (1976) and Morton Horwitz’s Transformation of American Law,
1780–1860 (1976), had likewise taken 1776 as the major dividing line. As
Katz explained, Nelson depicted colonial “Massachusetts society as characterized
by ethical unity, communitarianism, and stability, all of which were
undermined by the socioeconomic effects of the Revolution.” Similarly,
Horwitz contrasted static eighteenth-century law, “a body of essentially
fixed doctrine applied . . . to achieve a fair result between private litigants
5 Grant Gilmore, The Death of Contract (Columbus, OH, 1974); Perry Miller, The Life of
the Mind in America, from the Revolution to the CivilWar (New York, 1965); Roscoe Pound,
The Formative Era of American Law (Boston, 1938).
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562 James A. Henretta
in individual cases,” with the dynamic world of the nineteenth century,
when judges came “to think of the common law as equally responsible with
legislation for governing society.”6 Questioning the validity of the dramatic
Revolutionary Era transition assumed or posited by these five authors, Katz
called on scholars to show the organic development of law between the
seventeenth and the nineteenth centuries.
Less than a decade later, Cornelia Dayton confirmed that scholars had
begun to revise the traditional chronology and, in the process, challenged
the interpretations of Nelson and Horwitz. Surveying recently published
books and articles by David Konig, Bruce Mann, John Murrin, and others,
Dayton argued that they made “a powerful case for 1680–1720 as a pivotal
period, a transition from a communal, informal mode of resolving disputes
to a rationalized, lawyerly mode.” In Dayton’s account, it was the period
before 1680 (and not the entire colonial era) that “was radically different
from modern legal culture.”7
There is, in fact, considerable evidence that around 1700 American legal
institutions and procedures changed significantly in at least four respects.
In America, increasing social complexity meant a decline in resort to communal
dispute resolution, notably arbitration. Nearly simultaneously, three
interrelated English-influenced developments became manifest: the appearance
of centralizing imperial officials, the growing influence of trained
lawyers, and the increasing resort to common law procedures.
Like the magistracy, arbitration worked most effectively in a tightly knit
community with shared values. During the short life of the New Haven
colony (1639–64), its religiously devout members eschewed civil suits
and embraced arbitration. Likewise, Puritan migrants to Essex County,
Massachusetts, frequently used church tribunals and arbitrators to resolve
differences. Informal juries of leading men, either neighbors or fellow church
members, met with the disputants, took written statements, and proposed
solutions that they believed were fair to the parties and represented community
sentiment. Indeed, correspondence with community values was crucial,
because collective opinion was the prime means of enforcing the arbitrators’
decision. As the communally minded original settlers died off, the weaknesses
of this essentially non-coercive enforcement process became apparent.
During the 1670s and 1680s, many Essex disputants either refused arbitration
or repudiated decisions that were not to their liking – leaving Essex
County courts to handle forty-five unresolved disputes.
6 Quoted in Stanley N. Katz, “The Problem of a Colonial Legal History,” in Jack P. Greene
and J. R. Pole, eds., Colonial British America: Essays in the New History of the Early Modern
Era (Baltimore, 1984), 473.
7 Cornelia Hughes Dayton, “Turning Points and the Relevance of Colonial Legal History,”
William and Mary Quarterly, 3rd ser., 50 (1993), 9, 11.
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Magistrates, Common Law Lawyers, Legislators 563
Arbitration met a similar fate among Quakers in the Delaware Valley.
Even more than Puritans, Quakers were suspicious of the legal system, which
in England had been used to persecute them. As property holders, Quakers
also worried about the many powers of the courts: to take property from one
person and award it to another, to seize household goods to pay debts, and
to prefer one heir to others. Most Quaker meetings urged their members
not to “go to law” but to arbitrate their differences. Many did so. By the
early eighteenth century, however, DelawareValley Quakers were taking the
majority of disputes with their co-religionists to the courts. Disputes that
still went to arbitration could take months or years to resolve, and the parties
often repudiated the results. To deter repudiations, Quaker arbitrators
required disputing parties to sign legally enforceable penal bonds.Nolonger
able to rely on the Meeting and the community to enforce their awards,
arbitrators turned for sanctions to the very legal system they had hoped to
escape.
A similar “formalization of informal law” took place in Connecticut.
In 1645, the Connecticut General Assembly had urged residents to avoid
unnecessary jury trials and to resolve private disputes through arbitration.
As in Essex County and the Delaware Valley, arbitration in Connecticut
worked well initially because most disputes were between members of the
same community, but by the 1690s declining religious fervor and increasing
social complexity made it harder to enforce awards. Many disputants now
refused to enter arbitration unless all parties signed conditioned bonds (or,
by the 1730s, promissory notes) guaranteeing compliance. Once voluntary,
arbitration had become partly coercive and depended for its success on
financial instruments enforced by the common law courts. By the 1750s,
disputants regularly named justices of the peace as arbitrators, adding to
the legalistic tone of the proceedings. Equally significant, in 1753 the
Connecticut General Assembly enacted legislation allowing disputants to
make their arbitration a “rule of court,” which exposed them to contempt of
court and a writ of execution if they failed to abide by the terms of the award.
By the 1750s, the informal, community-based arbitration of seventeenthcentury
Connecticut had gradually given way to a formal, court-centered
process.8
Just as seventeenth-century Puritans and Quakers had urged arbitration
in preference to law, they had also discouraged the presence of lawyers in
their godly communities. In 1648, the Laws and Liberties of Massachusetts
Bay prohibited anyone from assisting the parties in a court hearing. Two
decades later, the General Court banned any person “who is an usual and
8 At that precise moment, the first German settlers in backcountry Frederick County,
Maryland, were resolving many of their disputes through community arbitration and
subsequently would recapitulate the Connecticut experience.
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564 James A. Henretta
Common Attorney in any Interior Court” from serving in the legislature.
Eventually, the colony’s leaders softened their stance; in 1673, they enacted
legislation allowing lawyers to practice law, but strictly regulating their
fees.
The story was much the same in Pennsylvania. There, rumor had it,
“They have no lawyers. Everyone is to tell his own case, or some friend for
him. . . . Tis a happy country.”9 Believing with George Fox that “blackness”
enveloped lawyers and law courts, Quakers promoted arbitration and the
resolution of disputes by means of “Gospel order.” If resort to the legal
system was necessary, William Penn’s Laws stipulated 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.” Accordingly,
Quaker-controlled proprietary courts in Gloucester County, West Jersey,
permitted residents to begin all actions with a simple writ of “case” and
accepted complaints written in “plain” language. Having simplified legal
procedures, the laws of Pennsylvania and West New Jersey allowed litigants
to plead their own cause or have friends appear on their behalf.
The two Quaker governments allowed lawyers to practice their profession,
but, as in Massachusetts Bay, regulated their fees and posted these rates in
court.
As these examples suggest, the animus against lawyers and law courts
was most acute in colonies controlled by radical dissenters. When Puritan
commissioners held sway in Virginia during the English Civil War, the
House of Burgesses provided for the licensing of lawyers, required them to
take a prescribed oath, and imposed a fine of 5,000 pounds of tobacco on
attorneys who accepted pay for pleading a case in court. But the return of
Anglican rule in Virginia in 1660 did not bring the repeal of these laws.
Having gathered offices and authority into their own hands, Virginia’s
landed elite firmly resisted the creation of a body of legal professionals.
Only in 1680, and then only for ten years, did the assembly allow lawyers
to practice freely. From 1690 until the Burgesses approved a new licensing
act in 1732, a few English-trained lawyers handled legal matters in the
capital atWilliamsburg, while a larger group of self-trained “l(fā)egal literates,”
mostly gentlemen-planters, performed these functions in the counties. As
Robert Beverley II noted in his History and Present State of Virginia (1705),
“every one that pleases, may plead his own Cause . . . there being no restraint
in that case, nor any licensed Practitioners in the law.”
Even as Beverley wrote his History, a new legal regime staffed by lawyers
was coming into existence in British North America. An important cause
9 Spence’s Anecdotes, in “An Essay on Equity in Pennsylvania” (1825), reprinted in Reports
of the Pennsylvania Bar Association, I (Philadelphia, 1895), 229.
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Magistrates, Common Law Lawyers, Legislators 565
was the program of imperial administrative and legal reform undertaken
by English officials in the 1680s. Shortly after his arrival in New York
in 1683, Governor Thomas Dongan secured legislation that centralized
the court system and instituted English-style legal procedures. Governorappointed
justices of the peace, sitting singly or in Courts of Common Pleas
and Courts of Sessions, formed the foundation of the legal regime. The new
statute placed these inferior courts under the supervision of a Supreme Court
that enjoyed wide appellate and original jurisdiction, which gave it broad
authority over local affairs. Equally important, these courts adopted the
practices and procedures – the forms of indictment, process, and recordation
– used in English common law courts. Following the termination of
the corporate charter of the Massachusetts Bay colony in 1684, Governor
Edmund Andros introduced a similar set of centralizing institutions and
common law procedures in the newly created Dominion of New England.
These legal innovations survived the Glorious Revolution because English
officials incorporated them into the new charter of 1692 that made Massachusetts
a royal colony.
The imperial initiative was multifaceted and affected nearly every colony.
Simultaneously with Dongan’s arrival inNewYork in 1683, English authorities
stripped the Virginia House of Burgesses of its traditional authority
as the final court of appeal and placed that responsibility in the hands of
the governor and council, appointed by the king. Imperial officials likewise
directed some royal governors to appoint judges at “the pleasure of the
crown,” rather than on “good behavior,” to make it easier to remove them
from office. This imperial effort to centralize the judicial system roiled
Maryland’s politics between 1705 and 1709 and troubled those in Pennsylvania
for an entire generation. Between 1701 and 1722, the Pennsylvania
assembly passed a series of statutes giving broad jurisdiction to the county
courts; each time the Privy Council voided the legislation because imperial
officials insisted that the colony’s Supreme Provincial Court should have
paramount authority.
English officials also increased the number and variety of royal courts,
both to address special legal problems and to enhance the power of the royal
governors. In 1696, Parliament created a system of colonial vice-admiralty
courts to bolster the authority and effectiveness of naval officers and other
customs officials. These courts removed many customs violations from the
purview of American juries, thereby preventing local courts from dispensing
what an imperial administrator termed “summary and domestic justice”
that undermined the Acts of Trade and Navigation. In addition, these courts
provided royal governors with a new source of patronage. When Governor
William Stoughton named William Atwood as judge of the Admiralty
Court in Massachusetts in 1701, Samuel Sewall lamented in his diary,
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566 James A. Henretta
“a considerable part of Executive Authority is now gon out of the hands of
New England men.”
The sudden and systematic creation around 1700 of Chancery Courts in
all of the royal colonies (and also in Maryland and, for a time, in Pennsylvania)
likewise challenged the power of local legal and political institutions.
Chancery was a jury-less prerogative court, presided over by the governor,
who sat alone as chancellor in some colonies and acted in concert with his
council in others. Members of the representative assemblies feared that governors
would use chancery courts, which provided remedies and procedures
not available at law, to advance imperial policies and the property interests
of their political allies. For their part, landowners worried that proprietors
and governors would employ the court’s formidable summary powers – of
injunction and specific performance – to collect sizable arrears in quitrents.
New York governors did just that. Prior to the creation of a Chancery Court,
Governor Robert Hunter confided to the Board of Trade in London in 1718,
it had been nearly impossible to collect quitrents. Thereafter, “Delinquents
were supoeon’d” to the court and the arrears “were immediately brought in
and have ever since been regularly paid into the King’s Receiver.”10
The proliferation of courts and of English royal officials after 1680 encouraged
the appearance of lawyers and the forms and procedures of the common
law. The first settlers had carried with them diverse sorts of legal
knowledge – the law and procedure of local borough and manorial courts,
which varied significantly from one English region to another, as well as
the common law practiced in the king’s tribunals. Common law was especially
significant with respect to land because it specified the nature of
estates, set the procedures for land acquisition and transfer, and prescribed
how land would descend by inheritance. Consequently, the wording of the
Massachusetts Bay Dower Act of 1647 generally followed that of common
law dower. However, Massachusetts judges often interpreted the act
in accord with English borough customs. Thus, they sometimes awarded a
widow a life-interest in all of her husband’s estate, rather than the one-third
prescribed by common law. In other cases, they ignored other possible heirs
and gave the widow outright ownership (rather than a life-estate) of all or
part of the property. As is often the case in isolated communities, judicial
decisions reflected local customs or special social circumstances, rather than
the outcomes prescribed in the statute.
The early settlers in New England were equally heterodox and inventive
in matters of procedure. In seventeenth-century England, rightful owners
trying to reclaim land from a trespassing possessor generally used the
10 Hunter to Board of Trade, n.d.[1717], E. B. O’Callaghan and Berthold Fernow, eds.,
Documents Relative to the Colonial History of New York (Albany, 1856–1887), V, 499.
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Magistrates, Common Law Lawyers, Legislators 567
process of ejectment, a form of action that required a fictitious “John Doe”
to have taken possession of the land. However, litigants and courts in Essex
County, Massachusetts, devised a form of action, on the “case, for trespass,”
that was not used in seventeenth-century England. This action (and a somewhat
similar Connecticut action “for Surrendry of Seizin and Possession”)
provided the same remedy as ejectment in a much more straightforward
fashion.
The officials of the Dominion of New England checked the evolution
of a separate New England common law. Trained to the law in the home
country, they insisted on strict adherence to common law precedents and
procedures. Thus, in 1686 the fictitious party “John Doe” made his first
appearance in an Essex County land possession case, as the plaintiff used the
English action of “ejectment” rather than the locally sanctioned “case, for
trespass.” When disputants did not use the prescribed English forms, their
lawsuits often failed; within a few years the percentage of Essex County
actions dismissed on technical grounds doubled – from 3.5 to 7 percent.
Following the appointment in 1694 of Thomas Rudyard as the attorney
general of New York, there was a similar transition to English forms in that
colony. Rudyard had practiced law in London and then served as Deputy
Governor of East New Jersey, where he also introduced common law forms.
Interestingly, the increasing legalism stemmed in part from the activities
of self-taught American litigants, who contested the authority of the
magisterial oligarchy. In the 1690s, for example, James Fitch, an ambitious
Connecticut land speculator and elected magistrate, taught himself
enough law to prosecute trespassers, evict tenants holding leases from other
claimants, and defend his own titles. Fitch’s skill in land actions raised the
standard of pleadings and forced his main adversaries, members of the influentialWinthrop
clan, to hire attorneys. Charles Story had a similar impact
in New Hampshire. An Englishman, Story came to the colony around 1700
as Proprietor Samuel Allen’s appointee as judge of Admiralty, a post he never
filled, and Secretary of the province. Working as a private lawyer as well
as serving as Secretary, Story insisted on technical precision and orthodox
procedures and often won cases on technical grounds. Thus, in an appeal of a
decision involving a married woman, he successfully argued that “detinue”
had been the wrong cause of action because “by the Common Law the wife
cannot be a detainer, but [only] the Husband.”11
The growing legalism of pleadings alarmed sitting judges. Prior to 1720,
most magistrates were legal literates, gentlemen who lacked training in the
law, but had acquired legal knowledge either from English manuals, such as
11 Province and Court Records of Maine, ed. Neal W. Allen Jr. (Portland: Maine Historical
Society, 1928ff ), IV, lxiv–lxvi (Mainwaring and Frost v. Shores, 1705).
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568 James A. Henretta
Michael Dalton’s The Country Justice and Richard Chamberlain’s The Complete
Justice, or from their experience on the bench. “These County Courts having
always been held by Country Gentlemen, who had no education in the
Law,” former Virginia Attorney General Edward Chilton noted in 1697,
“it was no Wonder if both the Sense of the Law was mistaken, and the
Form and Method of Proceedings was often very irregular.”12 As trained (or
self-taught) lawyers introduced the adversary system and the intricacies of
pleading, many sitting magistrates grew frustrated and defensive. They were
accustomed in criminal cases to act like inquisitors – compiling evidence,
questioning witnesses, and passing sentences without challenge – and were
loathe to relinquish that power. In addition, they wanted to decide civil
cases, as Virginia magistrate Landon Carter put it, by “Good reason and justice”
rather than by the “Precedents” of the court or the “Mechanical knowledge”
of attorneys.13
More nimble magistrates, and litigants, responded in a constructive fashion
to the intrusion of the common law and legal experts, gradually becoming
fluent in its language and procedures. By the early 1700s in the Delaware
Valley, some defendants used the latinate forms “nibil debet” or “non cull”
rather than the simple declarations in English that they “owed nothing”
or were “not guilty.” Indeed, some jurisdictions prescribed common law
pleas. In 1711 a Connecticut statute imposed fines for violating the rules
of pleading, and within a decade the court records of some Connecticut
justices of the peace – the lowest level of the legal hierarchy – routinely
referred to technical pleas: in abatement, in bar, and demurrers.
By this time in Massachusetts, Samuel Sewall and his fellow Superior
Court judges expected appeals based on technical issues and handled them
with considerable adroitness. The Court non-suited one plaintiff because he
“did not sue upon a written covenant”; dismissed the case of another plaintiff
for failing to mention time in his demand for a horse, as was required for an
action of “trover”; and abated the writ of a third plaintiff “because ‘twas for
covenants broken and yet did not declare ‘twas by Lease under Hand and
Seal.”14 By the 1710s, the Maryland Provincial Court likewise regularly
decided cases on demurrers and writs of error.
The growing expertise of appellate court judges reflected a higher standard
of appointment and professional expertise. Prior to 1701, the chief
12 Henry Hartwell, James Blair, and Edward Chilton, The Present State of Virginia and the
College (1727), ed. Hunter Dickerson Farish, (Williamsburg, VA, 1940), 44–45.
13 The Diary of Colonel Landon Carter of Sabine Hall, 1752–1778, ed. Jack P. Greene (Charlottesville,
VA, 1965), 75, 93.
14 Samuel Sewall, “Journal from August 1, 1717 to July 26, 1726,” Bb-Ca and 7 (Massachusetts
Historical Society, Boston).
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Magistrates, Common Law Lawyers, Legislators 569
justices of the New York Supreme Court were men of prominence rather
than of legal ability; thereafter, they were usually skilled lawyers. This process
took longer in Pennsylvania, where before 1718 most members of the
Supreme Provincial Court were merchants who had no legal training. In
Massachusetts in 1692, none of the five judges of the new Superior Court had
formal legal training; however, by 1718 the court boasted three lawyers:
Benjamin Lynde Sr., Addington Davenport, and Paul Dudley, the last a
long-time attorney general. Those members of the appellate bench without
a legal education apparently did their best to become knowledgeable. At his
death in 1730, Massachusetts Judge Samuel Sewall’s personal law library
of twenty-six volumes included not only the traditional guides for justices
of the peace but also eight volumes of English statutes and ten volumes of
treatises on civil and criminal law and procedure.
Nonetheless, the process of legalization was fragmentary and had only a
marginal impact on many cases in local courts. Well into the eighteenth
century, superior courts did not insist on rigid adherence to prescribed
procedure. As attorney Edward Barradall noted in 1735, although “the
strict Rules of Law are not very rigidly adhered to either by Judges or
Juries” in county courts, the Virginia General Court intervened on appeal
“very sparingly . . . where there has been a Verdict & the Merits of the Cause
fairly tried.”15
Still, the four decades between 1680 and 1720 witnessed a significant
alteration in the colonial legal system. Social changes brought about the
decline of arbitration; English-trained lawyers and increasingly competent
colonial attorneys challenged the hegemony of local magistrates. Simultaneously,
imperial authorities created a more centralized court system,
mandated the use of common law forms and procedures, and appointed
trained lawyers as appellate judges. The result was a nascent system of common
law courts that, over the next half-century, would emerge as a central
institution in the colonies of British North America.
III. COMMON LAW LAWYERS, JUDGES, AND JURIES, 1720–80
Scholars in recent decades have given quite a lot of attention to the relative
power of judges, lawyers, and juries in early America. That issue, however,
may be less significant than the interrelated decline of magisterial rule and
the enhanced importance of the common law court system. As an English
commentator put it at mid-century, “The power of a justice of the peace is
in restraint of the common law, and . . . is a tacit repeal of that famous clause
15 Ludwige v. French, in The Reports by Sir John Randolph and Edward Barradall of the Decisions
of the General Court of Virginia, 1728–1741, ed. R. T. Barton (Boston, 1909), B183.
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570 James A. Henretta
in the great charter, that a man should be tried by his equals.”16 Reflecting
this outlook, Maryland began in the early decades of the eighteenth century
to use juries in some slave cases. By this time, most white disputants no
longer used arbitrators, influential church members, or local magistrates
to resolve their differences in an extra-legal or summary fashion. Rather
they litigated their complaints in court. In New York, the per capita rate
of litigation doubled between 1700 and 1750.
The nature and substantive outcome of that litigation changed as well.
The newly active court system was a complex mix of traditional elements –
a paternalistic magistracy, custom-minded local juries – and new features,
such as trained lawyers, the common law plea system, and specialized legal
instruments like conditional bonds and promissory notes. As debt litigation
demonstrates, the presence of lawyers and new types of financial
agreements meant that disputes that once hinged on arguments over facts
now depended on the status of legal contracts. Increasingly judges rather
than juries decided such questions of law.
Debt cases were by far the most common form of civil litigation. As farm
communities grew in size, they lost the social cohesion that had bolstered
the authority of arbitrators and local magistrates. Likewise, as colonial governments
introduced paper money to facilitate tax payments and expand
trade, they encouraged the creation of a regional market economy. Increasingly
farmers dealt not with “neighbors” but with “strangers.” They sold
goods to distant customers and borrowed money from town-based merchants
who insisted on formal contractual agreements. In 1741, Harvard
President Edward Holyoke lamented the impact of these new circumstances
on peoples’ behavior, especially the “want of Brotherly Love evident by
their quarrelsome, litigious Disposition and Lawsuits without numbers.”17
Holyoke was not mistaken. In 1700, the Massachusetts Superior Court
heard 108 cases; five decades later, the Court annually handled more than
1,000, a ten-fold increase that far surpassed the rate of population growth.
As John Adams complained in the 1760s, “dirty and ridiculous Litigations
have been multiplied . . . till the very Earth groans and the stones cry out.”18
Ironically, Adams owed his legal career to the rise in debt litigation, which
fueled the emergence of an American bar.
16 Richard Burn, The Justice ,of the Peace and Parish Officer, 3rd ed. (1756), 159.
17 Edward Holyoke, The duty of ministers of the Gospel . . . (Boston: Printed by T. Fleet, 1741),
24–25.
18 (June 19, 1760) John Adams diary 5, 26 May–25 November 1760 [electronic edition].
Adams Family Papers: An Electronic Archive. Massachusetts Historical Society. http://www.
masshist.org/digitaladams/.
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Magistrates, Common Law Lawyers, Legislators 571
The process of creating a distinct legal profession was slowest in the
Chesapeake region, where legally literate planters resisted the intrusion of
trained lawyers. As one wealthy planter put it, “It is a shame for a gentleman
to be ignorant of the laws of his country and to be dependent on every dirty
pettifogger” for legal advice; like other notables, he wanted to know enough
law “to be able to advise his friends, relations, and neighbors of all sorts.”19
When the Virginia House of Burgesses finally provided for the licensing of
lawyers in 1732, it rigorously controlled the profession through a centralized
examining system and a strict schedule of fees. Given the absence of a
professional bar in Virginia, a second group of legal literates – a cadre
of county clerks – encouraged uniform procedures and decisions within
Virginia’s decentralized court system. The clerks were drawn primarily
from middling social ranks and owed their appointments to the Secretary
of the colony, who provided them with legal training before dispatching
them to their posts, where they also handled routine administrative matters
relating to probates and wills. After 1750, trained attorneys finally became
an integral part of the Virginia court system; their presence was recorded
architecturally by the appearance of lawyers’ benches inside the bar that
separated judges and their clerks from the jury and the spectators.
Before 1700, primarily because of Puritan and Quaker hostility, professional
lawyers were not much more in evidence in the Northern colonies.
Even in Anglican-dominated New York, until the 1720s, no more than
five or six attorneys handled court cases at any one time. New York lawyers
profited from this professional monopoly and used their political influence
with Governor Montgomerie to maintain it. The Montgomerie Charter for
New York City (1731) restricted practice before the Mayor’s Court to eight
named individuals, a stranglehold that lasted until 1746, when the assembly
enacted legislation opening that court to all members of the Supreme
Court bar. To protect their monopoly, City lawyers founded a bar association
(1748) that regulated admission to the profession and fixed rates for
services.
The fledgling legal profession in Massachusetts also fell under political
regulation. In 1710, the assembly required lawyers to take an oath
of office and instructed inferior and superior courts to examine attorneys
who wished to practice before them. This legislation began a decades-long
struggle between certified attorneys, most of whom were members of wellestablished
families, and a much larger group of legal literates, many of
19 Charles Carroll of Doughregan Manor to Charles Carroll of Carrollton, Oct. 16, 1759,
Unpublished Letters of Charles Carroll of Carrollton, ed. by Thomas M. Field (New York,
1902), 33–34.
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572 James A. Henretta
whom were rising men who served as minor court officials. “Looking about
me in the Country,” the young lawyer John Adams noted, “I found the
practice of Law was grasped into the hands of Deputy Sheriffs, Pettyfoggers
and even Constables, who filed all theWritts upon Bonds, promissory notes
and accounts, received the Fees established for Lawyers and stirred up many
unnecessary Suits.”20
To encourage the creation of a professional bar, during the 1720s several
Massachusetts courts prohibited individuals not sworn as attorneys from
charging legal fees. Then, between 1736 and 1742, the assembly banned
sheriffs and other court officials from providing legal advice or filing writs.
Helped along by this legislation, a number of capable Massachusetts men,
such as Jeremiah Gridley and Edmund Trowbridge, became lawyers, and
English-trained lawyers with good political connections – Robert Auchmuty,
William Bollan, and the future governor William Shirley – joined
them. By the early 1750s a trained bar had taken form not only in Boston
(Suffolk County) but also in other Massachusetts jurisdictions. Lawyers
organized formal county bar associations that worked with the judges to
create a graded profession attractive to men of high social status.Would-be
attorneys needed a college education, a three-year apprenticeship in a law
office, and the bar association’s recommendation to practice before an inferior
court. After a few years of practice and a new recommendation, a lawyer
could seek admission to the bar of the Superior Court. In 1762, Lieutenant
Governor Thomas Hutchinson pushed along this process of professionalization
by establishing distinctions between attorneys and barristers that
had been common in England since the late seventeenth century. By then,
nearly fifty trained lawyers were practicing in Massachusetts, and twentyfive
of them won recognition as barristers by the Superior Court. As leading
families sent their sons into the profession over the next decade, these numbers
nearly doubled. By 1775, there were about forty-five attorneys and
forty-seven barristers in Massachusetts.
Professional practice brought prosperity to many Massachusetts lawyers
and considerable wealth to a few. However, to earn a decent livelihood,
rising attorneys had to undertake petty tasks, such as debt collection, and
to pursue clients relentlessly to collect their fees. Outside of Boston, legal
literates continued to flourish; in York County (in the Maine district) parttime
lawyers handled nearly half of the court cases in the 1760s and an
organized bar appeared only in the 1790s. To wipe out these competitors
and protect their emergent monopoly, regularly admitted attorneys and
20 John Adams autobiography, part 1, “John Adams,” through 1776, sheet 7 of 53 [electronic
edition]. Adams Family Papers: An Electronic Archive. Massachusetts Historical Society.
http://www.masshist.org/digitaladams/.
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Magistrates, Common Law Lawyers, Legislators 573
barristers refused to counsel clients whose writs had been initially drawn
by these self-trained practitioners.
Whatever their degree of expertise, lawyers brought fundamental changes
to the civil court system. Traditionally, civil and criminal juries in Massachusetts
(and some other colonies) had the authority to decide matters
of law as well as matters of fact. Moreover, after 1672 in Massachusetts
and after 1700 in Connecticut, a jury verdict was conclusive and a judge
could not set it aside, even if the decision was contrary to his instructions. As
lawyers began to represent litigants, they began to complicate the dynamics
of the courtroom by translating specific disputes between individuals into
a confrontation between competing legal doctrines. Thus, attorneys urged
jurors to decide a case according to “the custom of the town” whenever
strict adherence to common law precedents would undermine their clients’
case. Opposing counsel of course told jurors that they should “determine
by Law” and ignore local custom and natural equity.21 “The Laws of Society
and Civil Government are not founded upon the strict Rules of natural
Justice,” Virginia attorney Edward Barradall argued in 1735, in defense of
a client who had knowingly sold a terminally ill slave.22 Pointing out that
his client had not explicitly warranted the health of the slave, Barradall
invoked the legal principle of caveat emptor (let the buyer beware), though
without success. Whatever the law of warranties, the local jury preferred
a settlement that the community would accept as just. Recognizing the
importance of public sentiment, a Massachusetts statute allowed juries that
were not “easy” about a case to choose “in open court to advise with any
man they all think fit to resolve or direct them, before they give in their
verdict.”23
While technical arguments complicated the deliberations of some juries,
lawyers’ common law pleas removed many more cases from their purview.
Juries had the greatest latitude when defendants in a civil case plead the
“general issue.” Because this plea denied all the plaintiff’s allegations, the
jury would hear evidence on all relevant matters. Moreover, because the legal
relationships among the various matters were often complicated, the jury
had to decide which legal doctrine to apply, giving them effective control
of the law. However, trained lawyers knew how to devise pleas “in bar” that
21 Colden v. Stockbridge, in Robert Treat Paine, Minutes and Trials and Law Cases (Boston),
vol. 1.
22 R. T. Barton, ed., Virginia Colonial Decisions: The Reports by Sir John Randolph and by
Edward Barradoll of Decisions of the General Court of Virginia, 1728-1741 (Boston, 1909),
II: B 48–49.
23 The Laws and Liberties of Massachusetts Bay, intro. by Max Farrand (Cambridge, MA, 1929),
51.
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574 James A. Henretta
limited the case to a narrow issue, for example, whether or not a defendant
who was being sued on a conditional debt bond had in fact performed the
condition. Given that plea, the jury only heard evidence that pertained to
the performance of the condition (the debt payment) and not the details of
the contract that it guaranteed. In such a suit, the “l(fā)aw” was obvious and the
jury considered only the “fact” of the payment.
Other pleas offered by defendants might remove the entire case from
consideration by a jury. For example, a plea in abatement of a writ asked
the judge to dismiss the action because the plaintiff’s writ was technically
flawed or improperly served. Alternatively, a defendant could demur, which
meant admitting the facts alleged by the plaintiff but denying that they
constituted a valid cause of action. Whether the defendant’s demurrer was
good was a legal question decided solely by the judge.
In Connecticut, the percentage of defendants invoking such “technical”
legal defenses increased dramatically after 1700. Previously, defendants in
contested civil actions nearly always pled the general issue, giving the case
after argument to the jury. By the 1720s, only about 15 percent of all civil
defendants entered such pleas; instead, they usually pled in abatement,
alleging flaws in the plaintiff’s writ. If these pleas failed, defendants then
pled on the merits. In subsequent decades, between 20 and 30 percent of
defendants pled on the merits, while most of the rest filed demurrers. If
these demurrers failed, as most of them did, the defendant lost the case
without a jury ever hearing it.
Although lawyers (and the broader awareness of common law procedure)
facilitated the relative decline of jury trials, they did not cause it. The
cause lay in the changing nature of debt cases, which constituted from 75 to
90 percent of all civil cases. In seventeenth-century Connecticut, most farmers,
artisans, and merchants dealt with local residents and recorded their
credit and debt transactions in ledgers and account books. When disputes
arose, plaintiffs filed an action on “book,” declaring that the debtors owed
a certain sum that they had never paid, “though often requested.” The only
way to resolve such disputes was for a magistrate (for small sums) or a
jury (for larger ones) to examine the accounts and take testimony from the
various parties.
By the 1720s, the debt system had changed dramatically. In the new
market economy, most farmers and shopkeepers did not record debts in
ledgers, and so actions on book constituted only 30 percent of the civil
cases heard in Connecticut’s county courts. Conversely, actions on written
instruments, such as bonds and promissory notes, now represented 70 percent
of the cases. Likewise, in Plymouth County, Massachusetts, between
1725 and 1774, only 15 percent of all civil suits were actions of case on
book accounts, whereas 59 percent were actions on notes and bonds. The
situation in magistrates’ courts was similar. Over the course of six months in
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Magistrates, Common Law Lawyers, Legislators 575
1754, a justice of the peace inWindham, Connecticut, heard fifty-six cases:
seven minor criminal offenses, four cases on book debts, and forty-seven
actions on promissory notes.
Promissory notes were a creditor’s dream, because they made payment
much more certain. In signing such notes, debtors expressly promised to
pay specific sums to creditors, who were often merchants or storekeepers in
another town, and that pledge was legally binding. When Nathaniel Collins
of Enfield, Connecticut, sued such a debtor, he told his attorney that it was
“needless to insist uppon any thing farther, because the bill [the signed note]
is the turning point.”24 Recognizing the legal weakness of their position,
debtors contested fewer than 10 percent of the cases involving promissory
notes and simply defaulted.
In colonies such as Massachusetts, where the local paper money depreciated
continually between 1720 and the late 1740s, some debtors may have
used non-payment as a financial strategy. By refusing to pay, they forced
their creditors to sue and win judgments – which could be paid in cheaper
currency. In other cases, non-payment may have been involuntary, the result
of periodic scarcities of cash in the economy. For these reasons, and because
the currency depreciation cut the real cost of the prescribed legal fees by at
least two-thirds between 1700 and 1750, the number of debt cases in
Massachusetts increased dramatically. The proportion heard by juries
decreased in an equally striking fashion. In the Massachusetts Superior
Court, an appellate body that heard criminal as well as civil cases, the proportion
of suits that reached a jury decreased from 47 percent in 1722 to
27 percent in 1742.
The declining proportion of jury trials in civil cases was not limited to
New England. In New York City, juries heard 17 percent of debt cases in
the 1690s, but only 4 percent by the 1750s. In the Quaker colonies of the
Delaware Valley between 1680 and 1710, juries heard only 16 percent of
all civil cases; most of the rest involved debts or contracts guaranteed by
sealed bonds. Use of a sealed bond allowed a creditor to file an action of debt
(rather than case) and limited the legal options open to a defendant, who was
obligated to pay the penal sum specified in the bond and could not hope for
a reduced award from a sympathetic jury. As in Connecticut, most Delaware
Valley debtors – some 78 percent – either defaulted on their promissory
notes or sealed bonds or confessed judgment against themselves. Of those
suits that debtors contested, plaintiffs claimed victories in three-quarters.
Debt litigation took a somewhat different course in Virginia because of
the presence there of English creditors. Before 1740, juries heard relatively
few cases. Most debtors gave their creditors a power of attorney to confess
24 Nathaniel Collins to George Denison, 23 May 1711, in Collins v. Frearman, New London
County Court Records (Connecticut State Library, Hartford), 178.
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576 James A. Henretta
judgment if the debt was not paid. When creditors presented these claims in
an action for debt and asked the court for judgment by petition, defendants
frequently pled “for time to imparl.” By imparling, debtors signaled their
intention to settle the dispute out of court, thereby maintaining both their
private credit and their public honor. In many instances, the courts closed
their books on these cases with the notation “dismissed, the parties being
agreed.”25
However, after 1740 the number of jury trials increased. Many planters
were accruing much larger debts than previously and were reluctant to confess
judgment. Moreover, British merchants held most of these obligations
and, because of Parliamentary legislation in 1732, could seize land and
slaves to satisfy sterling debts. Facing significant financial losses, debtors
sought relief from the planter-dominated Virginia assembly and sympathetic
local juries. In 1748 and 1749, the assembly enacted two statutes
designed to nullify Parliament’s intervention. One statute incorporated the
common law rule exempting land from seizure unless pledged by mortgage,
the other set an artificially low rate of exchange. It allowed residents
to pay off their debts in English pounds sterling in Virginia currency at
125 percent of face value at a time when the real exchange rate was higher.
Supplementary legislation in 1755 allowed local courts to decide on the
proper rate of exchange, so that even the recovery of a debt guaranteed by
a sealed instrument was uncertain. As the Virginia agent for the Scottish
firm of James Buchanon and Company wrote to his employers, “It would
be dangerous to trust Your Claim to the Decision of a jury.”26 The creditor’s
alternatives were to sue in the Chancery Court, a time-consuming
and expensive process, or to accept a lesser sum from the debtor. Virginia
planters would pursue a similar strategy after the Revolution. Hauled into
court by British creditors over unpaid prewar debts, planters successfully
persuaded many Patriot juries to hold them liable only for the principal
of the debts and not for the substantial interest charges that had accrued
during and after the war.
Suits for debts were ubiquitous in the Revolutionary era. They lay behind
the North Carolina Regulator movement in the 1760s, Shays’s Rebellion
in Massachusetts in the 1780s, and other instances of violence and court
closings. Quite apart from their political significance, these uprisings – and
the thousands of normally adjudicated debt cases – signaled the increasing
involvement of middling farmers in the market economy, the growing
influence of trained lawyers, and the shift toward judges in the balance of
courtroom power. Given the importance of common law courts and judges
25 Charles City County Order Book, 1737–57, passim (VSL).
26 Nov. 24, 1767,William Nelson Letter Book, 1766–75 (VSL).
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Magistrates, Common Law Lawyers, Legislators 577
in the eighteenth-century economic and legal system, it was predictable that
they (and not assemblies and governors) would become the prime target of
rioters.
IV. THE ANGLICIZATION THESIS AND THE TRIUMPH
OF LOCAL LAW
The verdicts rendered by chauvinistic juries in mid-eighteenth century
Virginia testify to the importance of local control of legal institutions, a
concern of English policymakers since the late seventeenth century. As the
political economist and royal official Charles Davenant observed in 1698,
“Colonies are a strength to their mother kingdom [only] while they are
under good discipline [and] while they are strictly made to observe the fundamental
laws of their original country.”27 Even as Davenant wrote, imperial
administrators were attempting to impose “good discipline” on various
colonial legal institutions. Through grants of chancery jurisdiction, as we
have seen, royal governors gained decision-making authority over a host
of legal issues. They selected judges of the jury-less vice-admiralty courts
and insisted on the crown’s “undoubted Right of Appointing Judges.”28 In
1753, the Privy Council made appointment of judges “upon the pleasure
of the crown” mandatory for new governors. In 1761 the requirement was
extended to all the royal colonies.
These imperial initiatives, along with the increasing importance of
English culture, goods, and common law forms and procedures in the
colonies, have prompted historian John Murrin to declare that American
society and law were increasingly “anglicized” between 1700 and 1775.
Murrin’s idea has achieved wide currency, but it cannot withstand careful
scrutiny. Consider, for example, the changing character of colonial society.
Because of the influx of tens of thousands of Africans, Germans, Scotch,
and Scots-Irish, the mainland colonies were steadily becoming less English
in composition and in culture. In 1700, those of English birth or ancestry
constituted 85 percent of the non-aboriginal residents of British North
America; by 1775, that proportion was less than 50 percent. This was no
anglicization of colonial society and culture, but rather just the reverse.
Nor did the imperial initiatives of the late seventeenth century create
a legal system dominated by those of English birth or managed in the
interest of the English crown. Take the case of religious and legal institutions
in Virginia. Although the Church of England was legally established,
27 Two Discourses on the Public Revenues and Trade of England (London, 1698), 17.
28 Order in Council, 4 March 1735, Colonial Office Papers 5/386, f. 76 (Public Record
Office, London).
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578 James A. Henretta
the colony had no ecclesiastical courts and no ecclesiastical hierarchy.
Virginia-born planter-vestrymen controlled the affairs of the parishes and
the appointment of their ministers. Likewise in law: of the 151 barristers
and attorneys licensed in Virginia between 1716 and 1770, only 27 were
English-born and English-trained; the rest were native-born, and most were
locally educated. Virtually all eighteenth-century Virginia magistrates and
judges were locally born. Relatively few of these legal officials ever visited
England, fewer still lived there for any length of time, and virtually
none became Loyalists. Most legal patronage remained under the control of
well-established local planters and magistrates. When Governor Spotswood
created a Court of Oyer and Terminer in 1717, the leading planters who
sat on the Council began a long campaign to place their members on the
court. Their persistence was rewarded. By mid-century, the Court of Oyer
and Terminer was customarily composed only of councilors, nearly all of
whom had deep roots in Virginia society.
In Massachusetts, English officials had greater success in anglicizing the
legal system – that is, in appointing imperial-minded lawyers, judges, and
court officials who would follow the lead of the royal governor. A liberal
use of patronage was crucial to this effort. To entice John Adams away
from the popular party during the late 1760s, Governor Bernard offered
him the position of advocate general of the admiralty court. The rising
attorney from Braintree derided the offer as “a first Step in the Ladder
of Royal Favour and promotion,” but it found a ready taker in Samuel
Fitch, a fellow lawyer and future Loyalist.29 Lawyer Jonathan Sewall, the
grandnephew of Superior Court Judge Samuel Sewall, served the crown both
as Attorney General of Massachusetts and as the absentee Admiralty Court
judge for Nova Scotia and Canada, a post worth £600 annually. Some of the
twenty-seven Massachusetts barristers who became avowed Loyalists or Tory
sympathizers likewise held patronage positions, while others worked for
Loyalist merchants. However, twenty Massachusetts barristers and most of
the attorneys gravitated to the patriot side because of ideological inclination,
loyalty to their home communities, or a recognition that imperial positions
were limited in number and already monopolized by a few intermarried,
high-status families. The Hutchinson clan was one such family. It shows
what an “anglicized” legal bureaucracy would have looked like. During
the 1760s, Thomas Hutchinson served both as Lieutenant Governor of
Massachusetts and as Chief Justice of the Superior Court of Judicature.
Sitting with him on the five-member court were fellow future Loyalists
29 (1768) John Adams autobiography, part 1, “John Adams,” through 1776, sheet 11 of 53
[electronic edition]. Adams Family Papers: An Electronic Archive. Massachusetts Historical
Society. http://www.masshist.org/digitaladams/.
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Magistrates, Common Law Lawyers, Legislators 579
Peter Oliver and Benjamin Lynde, each related by marriage to the other
and to Hutchinson. Two other members of the Hutchinson family sat on the
four-member Court of Common Pleas for Suffolk County. They generally
favored imperial interests.
Suffolk County, however, was not Massachusetts. The judges in courts of
distant counties showed much greater independence, in part because they
held their offices during good behavior. As Governor Bernard complained,
the judges could “defy the King, oppose his Laws and insult his Government
and [still] be in no danger of losing” their commissions. “It is not unusual,”
he went on, “for a Person, who has distinguished himself in Political Matters,
to get himself recommended to the Governor, as a Man well disposed to
Government, and as soon as he has received his Commission to declare for
the Party of the Sons of Liberty.”30
Local legal officials in Massachusetts – magistrates, judges, and juries –
were even more autonomous. Although the governor appointed justices of
the peace, they derived their authority, and thus their practical capacity
to enforce the law, primarily from their standing in the local community.
Moreover, the justices were financially independent because they derived
their income from fees and county taxes that they levied. Likewise, imperial
officials found it difficult to manage Massachusetts juries, partly because
local town meetings (and not governor-appointed sheriffs) chose the jury
pool. Thus, members of the Scituate Town Meeting inspected a list of eligible
residents and then selected those “Such as they Judged most Suitable to
Serve as Jurors.”31 Once locally chosen men took their seats in the jury box,
Governor Bernard complained, they rendered verdicts “against the express
instructions of the judges” and systematically undercut royal authority: “A
Custom house officer had no chance with a jury, let his cause be what it
will.”32 As the political crisis deepened, Thomas Hutchinson reiterated this
point in instructing a Suffolk County grand jury. “We, who are to execute
the Law, are not to enquire into the Reason and Policy of it. . . . I mention
this, Gentlemen, because, I have found juries taking upon them to judge
of the Wholesomeness of the Laws, and thereby subverting the very End
of their Institution.”33 To eliminate the problem, Loyalist-minded lawyers
30 Francis Bernard to Earl of Hillsborough, Nov. 14, 1768, published in the Boston Evening
Post, April 10, 1769.
31 Scituate Records: Town Meeting Minutes, 1743–80, 19 (ms. in Scituate Town Hall,
Scituate, Massachusetts).
32 Francis Bernard to Board of Trade, Aug. 2, 1761, in Reports of cases argued and adjudged in
the Superior Court of Judicature of the Province of Massachusetts Bay, between 1761 and 1772.
By Josiah Quincy, Junior, ed. Samuel M. Quincy (Boston, 1865), II, 282 (hereafter Quincy
Reports).
33 Quincy Reports, I, 306–08.
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580 James A. Henretta
and politicians set about devising doctrines that (according to John Adams)
“would render Juries a mere Ostentation and Pageantry, and the Court absolute
Judges of Law and fact.”34
Colonial legal and political institutions, however, remained largely
immune from British attempts to control them. Consider, for example,
the success of the New York assembly in wresting control of the colony’s
finances from the Royal Governor and his Council. In a process that began
in 1706 and extended over three decades, the assembly gradually channeled
most of the colony’s tax revenues to its own treasurer and claimed sole
authority to spend those funds. In a stunning climax, the assembly asserted
its power to act as a court by adjudicating, directly or by delegation, the
validity of claims against the public purse. As Archibald Kennedy, an imperial
official in New York, complained in 1750, the legislators “take upon
themselves to be the sole judges . . . [and insist] that no order for publick
money shall issue, untill their judgment has been obtained for it.”35 Other
assemblies likewise asserted control over the disbursement of public funds.
If by an “anglicized” colonial legal system we mean one increasingly
dominated by imperial officials or sympathizers, then, anglicization does
not seem to be the most appropriate term to describe the dynamics of
eighteenth-century colonial legal development. This does not mean, however,
that the concept has no value. First, anglicization accurately describes
the elimination or incorporation within a dominant English legal regime
of the pre-1674 system of Dutch law in New York. It also conveys the fate
of the inheritance customs brought by German immigrants (and perhaps
those from Scotland and Ireland as well), which were gradually adapted to
fit within the categories of English law. Second, the term correctly suggests
the waning of the critical Puritan and Quaker views of lawyers and
legal institutions and the rising importance of a more cosmopolitan Anglican
outlook – although, once said, the perspective yields little interpretive
insight given that the emergence of the professional bar was more rapid in
Puritan New England than in the Anglican Chesapeake. Finally, the concept
properly indicates the increasing importance of a new system of English
rules – the common law – within the American legal system. Of course,
one can still ask whether it makes sense to call this “anglicization” when
the various legal practices of the seventeenth-century colonies were also of
English origin. It is also worth noting that between 1650 and 1800 a similar
process was taking place in England, as the forms and procedures of the
34 (12 February 1771) John Adams diary 16, 10 January 1771–28 [i.e. 27] November 1772
[electronic edition]. Adams Family Papers: An Electronic Archive. Massachusetts Historical
Society. http://www.masshist.org/digitaladams/.
35 Archibald Kennedy, An Essay on the Government of the Colonies (New York, 1752), 23, 26.
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Magistrates, Common Law Lawyers, Legislators 581
King’s common law courts gradually displaced those of borough and manor
courts. What Murrin describes as “anglicization” might better be called an
attempt at centralization; that is, the subordination to metropolitan control
of legal institutions throughout the “provinces” – whether English counties
or American colonies.
A crucial step in eighteenth-century legal development was the affirmation
in 1720 by British Attorney General RichardWest that the American
plantations were not conquered territories subject to the rigors of the royal
prerogative. Rather they were distant counties, so that “the common law of
England is the common Law of the plantations,” a declaration that accorded
imperial legitimacy to the American assemblies and their court systems.36
By the 1770s, colonial lawyers had imbibed this understanding and, reflecting
their increasing fluency in the common law, were citing cases decided
by the King’s Courts atWestminster in their legal arguments. Thus, replying
to an inquiry from the Board of Trade, New York’s last royal governor
reported, “The Common Law of England is considered as the Fundamental
law of the Province.”37 But the colonists’ increasing reliance on the common
law did not produce an “anglicized” (and Loyalist) result – another
reason for avoiding the term. During the revolutionary crisis, Whig lawyers
used the legal institutions of the eighteenth-century common law regime
against imperial officials. In 1761, Boston lawyer James Otis cited English
common law precedents in disputing the legitimacy of a general search
warrant. In demanding a jury trial for John Hancock four year later, John
Adams argued, “This 29th Chap. of Magna Charta” respecting the right to
a jury trial “has for many Centuries been esteemed by Englishmen, as one
of the . . . firmest Bulwarks of their Liberties.”
Patriot-dominated grand juries likewise used their legal powers to thwart
imperial prosecutors by refusing to indict either colonial merchants for
smuggling or patriot agitators for seditious libel. As one British administrator
lamented, even “the Indians . . . frequently observe that our Governments
are weak & impotent [because] . . . whatever these people do their
Jurys will acquitt them.”38 Conversely, when patriot lawyers used the liability
doctrines of common law to bring civil actions against customs officials
for financial losses caused by their enforcement activities, juries awarded
substantial sums to injured shopkeepers and merchants. Local Whig law,
36 George Chalmers, Opinions of eminent lawyers, on various points of English jurisprudence, chiefly
concerning the colonies, fisheries, and commerce of Great Britain (London, 1814), I, 194–95.
37 Report of His Excellency William Tryon Esquire, 11 June 1774, Documentary History of
New York, ed. E. B. O’Callaghan (Albany, 1849–51), I, 754.
38 SirWilliam Johnson to the Earl of Dartmouth, O’Callaghan, NewYork Colonial Documents,
VIII, 316.
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582 James A. Henretta
now elaborated in common law courtrooms, checkmated imperial law based
on Parliamentary sovereignty, statutes, and supervising officials. The rise
of assembly power and Whig law best describe the course of eighteenthcentury
events.
V. THE SUPREMACY OF THE LEGISLATURE
In his path-breaking monograph, The Transformation of American Law, 1780–
1860, Morton Horwitz argued that the common law judges of the early nineteenth
century played a central role in directing the course of social change.
According to Horwitz, the judges adopted an instrumental approach to
the common law and fundamentally reinterpreted doctrines that had given
a high priority to social stability, prescriptive rights, equitable dealings,
and the rights of creditors. By revising these doctrines in dynamic ways,
the courts removed traditional burdens on risk-bearing entrepreneurs and
encouraged economic development. Indeed, Horwitz maintains that by the
1820s “the process of common law decision making had taken on many of
the qualities of legislation” because appellate judges, in deciding specific
cases, self-consciously articulated general doctrines. Beyond that, Horwitz
intimates that judges were more important than legislatures in shaping the
course of nineteenth-century law. He also suggests that they subverted the
democratic process by fashioning rules that aided capitalist entrepreneurs
at the expense of ordinary citizens.
The truth is somewhat more complex. Nineteenth-century trial court
judges did assert greater control over the outcome of civil cases than their
predecessors did, and appellate judges did articulate innovative legal doctrines
of broad significance. But the republican revolution of 1776 sparked
an even more impressive expansion in the authority and activity of the state
legislatures. The legislatures quickly asserted their plenary powers, reorganized
court systems, and enacted statutes that consciously encouraged
economic development and the creation of a more “republican” society. In
the Early Republic, we shall see, the legislatures were the leading edge for
change. In fact, the increased importance of the nineteenth-century judiciary
was related to the ascendancy of the legislatures, for it resulted not
only from the judges’ growing legal expertise but also from legislatively
mandated changes that enhanced the judiciary’s powers, and, less directly,
from legislative activism.
During most of the colonial era, neither the local magistracy nor the
higher judiciary was well trained or distinguished. In 1733, the North
Carolina assembly protested the appointment of “so many Evil Magistrates”;
in fact, residents accused about one-tenth of the colony’s 1,270 justices of
the peace of misbehavior and corruption, a pattern of misconduct that
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Magistrates, Common Law Lawyers, Legislators 583
sparked the Regulator movement of the 1760s. In New York in 1763, 60
percent of the justices of the peace outside of New York City had no formal
legal training. In all of the colonies, plural office holding was common,
and justices often used their influence to acquire appointments as sheriffs,
coroners, and other fee-charging officials. Moreover, increasing numbers of
magistrates evaded their judicial and administrative responsibilities. As the
sittings of the Virginia county courts lengthened in duration, from one day
in the 1720s to four or five days in the 1760s, many justices only attended
on the first day or two. By mid-century in Richmond County, three-fifths
of those appointed as justices were dismissed for “Refusing to act” as their
commissions required.
Initially, the higher judiciary was almost as unqualified as the magistracy.
Before 1740 in Pennsylvania and Massachusetts, most judges appointed to
the Superior Court had minimal qualifications: a college degree or a few
years of experience as a magistrate. Thereafter, standards improved as governors
filled appellate positions with men who came from legal families
and had considerable judicial experience. Of the ten men named to the
Massachusetts Superior Court between 1746 and 1772, nine had served for
at least five years on a lower court and had relatives who were also Superior
Court judges. Surprisingly, the Revolution pushed forward the process of
professionalization. The statute creating the Massachusetts Supreme Judicial
Court in 1782 specified explicitly that justices shall be “l(fā)earned in
the law,” and all but two of twenty-six judges named to the Massachusetts
Superior Court between 1775 and 1825 were trained lawyers. Similarly,
all of the judges named to the post-Revolutionary Pennsylvania Supreme
Court were qualified attorneys. Because of their formal training, the appellate
judges of the early nineteenth century had the legal knowledge that
was a prerequisite for an activist and innovative judiciary.
Favorable legislation was the second factor that enhanced the position
of the judiciary. In Massachusetts, Pennsylvania, and several other states,
new statutes gave trial judges greater control over their courtrooms. After
1805 in Massachusetts, a single trial judge (rather than a panel of judges)
presided at a case and had the authority to throw out verdicts that were
“manifestly against the weight of the evidence.”39 In Connecticut, judges
took advantage of an eighteenth-century statute that, as Zephaniah Swift
explained in 1822, allowed judges to instruct juries “in the opinion of the
court, how the case ought to be decided” and to force them twice to reconsider
contrary verdicts.40 If the jury did not follow the court’s direction or
39 Hammond v. Wadhams, 5 Mass. 353, 355 (1809).
40 Henry Dutton, A Revision of Swift’s Digest of the Laws of Connecticut (New Haven, J. H.
Benham 1849), 773.
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584 James A. Henretta
delivered a verdict that went against the evidence, judges could (and usually
did) grant a motion by the losing side for a new trial. Equally important,
a Massachusetts statute ended the practice of giving cases appealed from a
county court a de novo hearing before the Supreme Court. Rather, the appellate
court ruled on contested points of law, thereby establishing a coherent
substantive body of legal principles. Viewed historically, the termination of
de novo retrials signaled the demise of an equitable “culture of appeal”; in
its place stood the procedures of common law, which allowed reviews only
though writs of legal error.
In Virginia and a few other few states, eighteenth-century practices that
limited the powers of the judges continued to command support. Trial
court judges in Virginia allowed wide scope to juries and generally refused
the demands of plaintiffs to instruct juries that the weight of evidence
proved their case. Reinforcing that reluctance, in 1814 theVirginia Supreme
Court chastised judges who summed up the evidence at the end of a trial or
suggested an appropriate verdict. Nonetheless, like their colleagues in other
states,Virginia appellate judges were increasingly active; between 1790 and
1815, newly created District Courts reversed or returned for retrial nearly
two-thirds of the county court cases they considered on appeal.
Activism elicited criticism that judges were making law rather than
simply applying it. As early as 1767 Daniel Dulany of Maryland warned that
if judges “take upon themselves to frame a regulation, in prospect, which is
to govern in future . . . they essentially assume a power legislative.” Seeking
in 1800 to justify such judicial refashioning of legal rules, Massachusetts
Chief Justice Isaac Parker suggested that judges had always to interpret the
timeless and fundamental “principles of the common law” in the light of
present social conditions. Parker’s perspective acquired increasing support.
Within a few decades, Tapping Reeve and James Gould were advising
students at the Litchfield Law School, “theoretical[ly] courts make no law
but in point of fact they are legislators.”41
As this statement hints, the rise of judicial innovation and legal instrumentalism
stemmed in part from the legislative activism spurred by revolutionary
republicanism. During the colonial era, many Americans believed
that their representative assemblies existed primarily to prevent misrule by
power-hungry governors and not to devise new legislation. Indeed, colonial
assemblies often spent substantial parts of their short annual sessions in
thwarting imperial initiatives. In the time that remained, the members –
who were primarily local men of high status – focused either on administrative
tasks, such as creating governments for new townships, or on
41 E. Whittlesey, “Reeve & Gould Lectures,” I, 1 (1813) (ms 4024) and “Reeve’s Lectures,”
I, 4–5 (ms. 2013), both in Treasure Room, Harvard Law School Library.
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Magistrates, Common Law Lawyers, Legislators 585
legislative patronage, by passing “private” bills that addressed the request
of specific communities and individuals. Thus, although the Massachusetts
legislature annually enacted several dozen bills during the 1760s, only a
few of those statutes altered an existing general law or made a new one.
The Virginia House of Burgesses likewise spent much of its time paying
claims for services; arbitrating disputes over local boundaries and the location
of tobacco inspection warehouses; approving new townships, bridges,
and roads; and responding to local demands.
The laws enacted by the New Jersey legislature exemplify the general
pattern. Between 1750 and 1775 more than half of the 455 bills enacted
into law originated as private petitions submitted by influential men, and
80 percent of them applied only to particular individuals or specific localities
– for example, reimbursing expenses, breaking an entail, granting
relief to a debtor (or creditor), or constructing a public project at private
expense. Indeed, only 7 of the 256 petition-derived laws were of general
concern and legally enforceable throughout the colony. Of the remaining
laws – an average of only eight per year between 1750 and 1775 – the overwhelming
majority were routine: budgetary bills levying taxes or directing
expenditures, authorizations creating new towns and other governmental
jurisdictions, and statutes reenacting earlier legislation. Instead of legislation,
New Jersey and the other colonies relied for their government on “the
common law . . . in the English model,” one contemporary noted, and on
the authority over township and county affairs wielded by local magistrates
and county courts. As the activist-minded GovernorWilliam Franklin complained
in 1772, many representatives believed that any “Measure which
must be attended with Expense, and has not a Tendency to benefit every
Part of the Province, equally, ought not to be adopted by the legislature.”42
Given such attitudes, substantive legislation that affected an entire
colony was sporadic and crisis-driven. Responding to a severe economic
downturn in the early 1720s, the Pennsylvania legislature enacted an array
of laws that taxed imports from neighboring colonies; provided incentives
for the production of hemp, hops, and flax; and established an inspection
system to improve the quality of flour for export. Most important of all,
the legislature issued paper money and, to put it into circulation in a fiscally
responsible manner, created a system of loan offices that dispensed
currency loans in return for mortgages on farmers’ lands. Three decades
later, the demands of the Seven YearsWar on Pennsylvania generated a new
burst of legislative activity, focused primarily on financing and supplying
the provincial militia. Stimulated by the success of this colony-wide effort,
42 Address ofWilliam Franklin to the Assembly, 20 August 1772, The Votes and Proceedings
of the General Assembly of the Province of New Jersey (Burlington, NJ, 1772).
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586 James A. Henretta
private entrepreneurs and public officials outlined various schemes of economic
development, including the initial proposals for post-Revolutionary
ventures, such as the Lancaster Turnpike and the Chesapeake and Delaware
Canal.
The war of independence sparked an unprecedented wave of governmental
activism. Wartime demands forced the state legislatures to act in
dramatically new ways: mobilizing thousands of troops, raising large sums
of money, purchasing military supplies, holding down inflation, preserving
order, and controlling Loyalists. Equally important, the new republican
state constitutions systematically weakened the powers and responsibilities
of the governors and increased those of the legislatures. The representative
bodies that emerged after the Revolution drew more of their members from
the middling ranks than previous legislatures had and saw themselves as
the agents of the sovereign people. “In our Governments,” a wary James
Madison pointed out in 1788, “the real power lies in the majority . . . [and]
the government is the mere instrument of the major number of the Constituents.”
43
Whatever Madison’s worries about popular power and legislative tyranny,
state lawmakers increasingly asserted their plenary powers. During the colonial
era, many Massachusetts statutes contained preambles justifying the
legislation as a socially necessary extension of existing legal doctrines. Following
the adoption of the state constitution of 1780, the use of such justificatory
preambles sharply declined and by the end of the decade appeared
in only half the enacted statutes. Increasingly, legislators began bills with
a “be it enacted” clause, a stark statement of their sovereign power. By
1813, Reeve and Gould had adopted this positivist perspective; they told
the prospective lawyers at Litchfield that each statute was “a rule of civil
conduct prescribed by the supreme power of the state commanding what is
right and prohibiting what is wrong.” A few years later, treatise writer John
Milton Goodenow extended this maxim of legislative supremacy over the
jurisprudential realm. The judge, Goodenow declared, “is governed himself
by positive law, and executes and inforces the will of the supreme power,
which is the will of the People.”44
43 James Madison to Thomas Jefferson, 17 October 1788), in Gaillard Hunt, ed., James
Madison: Writings (New York, 1904), 5:272.
44 E. Wh,ittlesey, “Reeve & Gould Lectures,” I, 1 (1813) (ms 4024) and “Reeve’s Lectures,”
I, 4–5 (ms. 2013), both in Treasure Room, Harvard Law School Library; John Milton
Goodenow, Historical Sketches of the Principles and Maxims of American Jurisprudence in
Contrast with the Doctrines of the English Common Law on the Subject of Crimes and Punishments
(Steubenville, 1819), 33.
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Magistrates, Common Law Lawyers, Legislators 587
State legislatures used their newly consecrated authority to control the
legal system. During the RevolutionaryWar, state legislatures consciously
overrode common law property rights to confiscate Loyalist lands. In Massachusetts,
the legislature acted as a high court of appeal, granting new
trials, reversing decisions, and arbitrarily extending lawsuits. After the
war, it continued the colonial practice of regulating the practice of law –
setting legal fees, prohibiting minor court officials from drawing up writs
and pleas, and allowing individuals to manage their own court suits.
Subsequently, many states revised their laws in accord with “republican”
principles. They changed the laws of inheritance to eliminate primogeniture
and entail and moderated the criminal code by restricting the use
of corporal punishment and the number of capital offenses. Codification
of the civil law turned out to be an intractable problem, both because
many lawyers preferred the flexibility of the common law and because legal
doctrines and protocols had diverse origins – Parliamentary statutes, the
enactments of colonial assemblies, and common law decisions – and had
been interpreted differently by various juries and judges. However, the failure
of Massachusetts, Virginia, and other states to devise the “simplified
law code” advocated by Bostonian Benjamin Austin and other reformers is
less important for our purposes than the unequivocal assertion of legislative
authority over the process of legal revision.
Many state legislatures likewise claimed constitutional authority over the
court system. Colonial assemblies had frequently established and regulated
courts by statute, defying arguments by the Board of Trade that such actions
were the prerogative of the executive. Now they claimed these powers as
a right. “Whether courts are erected by a regard to the administration of
justice, or with the purpose of rewarding a meritorious faction,” declared
Virginian John Taylor of Caroline, “the legislature may certainly abolish
them.”45 Acting on this premise, the Massachusetts legislature in 1804–05
overhauled the state’s judicial system and abolished not only de novo retrials
before the Supreme Court but also the criminal jurisdiction of the Courts
of Sessions of the Peace. Because of continuing legislative intervention, the
General Sessions magistrates gradually devolved into mere administrators,
the County Commissioners, elected officials who approved town bylaws
and supervised local governments. Legislative supremacy reduced the powerful
magisterial oligarchs of the seventeenth century to the status of state
bureaucrats.
45 Taylor to John Breckinridge, Dec. 22, 1801, in John P. Branch, John P. Branch Historical
Papers of Randolph-Macon College, ed. by W. E. Dodd, 1st ser. (Richmond, 1901–18), I,
284–88.
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588 James A. Henretta
In New York City, institutional evolution took a similar course. The
Montgomerie Charter of 1730 had established the City as a distinct corporate
entity with extensive governing powers. With independence, the
Corporation of the City of New York occupied the anomalous position
of an imperium in imperio, an independent lawmaking body within the
sovereign state of New York. Recognizing the tension between the City’s
charter rights and the state’s sovereign authority, the City Council dispatched
a steady stream of petitions to the state legislature, asking it to
reaffirm powers granted by the Montgomerie Charter and to grant new
powers of regulation and taxation. Gradually, this restructuring of authority
transformed New York City from a privately chartered corporation to
a public entity – a municipal corporation – within the legislatively controlled
state government. Within the city, the mayor and aldermen forsook
their traditional judicial responsibilities; they left law enforcement
to the recorder of the Mayor’s Court and other legal officials and focused
their energies on the tasks of city administration. In 1821, a legislative
statute completed the separation of judicial and administrative functions
by eliminating the Mayor’s Court and creating a judge-run court of common
pleas for the City and County of New York. As in Massachusetts,
the New York state legislature used its sovereign authority to recast the
court system and define counties and cities as subordinate administrative
entities.
In Virginia, the post-Revolutionary legislature likewise curbed the powers
of the magisterial oligarchies that ran the county courts. For decades,
angry residents and reform-minded lawyers had complained about the arbitrary
and often controversial decisions of the county justices. Revolutionary
era reformers added the charge of anti-republican elitism and exclusivity.
“The justices of the County Courts are so far from being the Representatives
of the People, or amenable to them,” declared a petition submitted by
George Mason, “that by a very faulty part of our Constitution, they are a
self-contained Body, with the Power of filling their own Vacancies, a power
unknown in any other Part of the Constitution.”46 Picking up Mason’s
theme, Thomas Jefferson contrasted “the vicious constitution of our county
court . . . self-appointed, self-contained, holding their authorities for life”
with the system of elected selectmen in the townships of New England,
“the wisest invention ever devised by the wit of man for the perfect exercise
of self-government, and for its preservation.”47
46 Robert A. Rutland, ed., The Papers of George Mason, 1725–1792, 3 vols. (Chapel Hill,
NC, 1970), IIs, 773.
47 Jefferson to John Taylor, May 28, 1816,Writings of Thomas Jefferson, ed. by Paul Leicester
Ford (New York, 1904–5), XIs, 527–33. Jefferson held such views as early as 1776.
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Magistrates, Common Law Lawyers, Legislators 589
In 1772 and again in 1779 the Virginia legislature refused to reform the
county court system. Roughly half the members of the House of Burgesses
sat as justices in their home counties and opposed proposals that would
limit their legal authority or replace them with elected aldermen. In addition,
Patrick Henry, Spencer Roane, and other influential Anti-Federalists
defended the traditional decentralized system of county magistrates and
juries as guardians of local liberty. Nonetheless, in 1787 James Madison
and other reformers eventually won legislative enactment of a compromise
measure that preserved many of the powers of the county judges, but created
a system of District Courts, staffed by circuit-riding appellate judges,
to review their decisions.
The power of Virginia gentry – in counties, the legislature, and the
judiciary – also affected the substantive economic measures enacted by
the state legislature. Unlike the legislatures and judges in many Northern
states, which encouraged entrepreneurs at the expense of other property
owners, Virginia officials undercut many of the development schemes of
the state’s mercantile and banking leaders. When the legislature granted
charters to internal improvement companies, it safeguarded local rights
by giving juries control of eminent domain proceedings and compensation.
By contrast, when theWestern and Northern Inland Lock Navigation
Companies complained to the New York legislature in 1790 about the
“excessive” eminent domain awards made by local juries and asked that the
responsibility be transferred to court-appointed appraisers “whose decisions
shall be conclusive,” the lawmakers quickly complied.48 When commercial
interests and entrepreneurs in Virginia managed to secure favorable legislation,
the state’s judges often intervened to protect other property owners.
For example, the act incorporating the Slate River Company authorized
the destruction of five milldams if the dam owners did not, at their own
expense, build and maintain locks for passage of the Company’s boats. When
the owners refused, arguing that these construction costs – or, alternatively,
the destruction of their dams – represented a “taking,” they won the backing
of the Virginia Supreme Court, which required the payment of fair
compensation. The combination of a localist political ideology, a dominant
agricultural sector, and a tradition-minded judiciary inhibited economic
development in Virginia.
In most Northern states, as Horwitz demonstrated, the courts moved
aggressively to encourage entrepreneurial ventures. In doing so, however,
they usually walked hand-in-hand with the legislatures. Consider the
48 “Report of the Directors,” in Albert Gallatin, “Report on Roads and Canals,” American
State Papers, Walter Lowrie and William Franklin, eds. (Washington, DC, 1834), Class
X, Miscellaneous, I, 772; 1798 N.Y. Stat. ch. 101.
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590 James A. Henretta
treatment of milldams in Massachusetts. In 1795 and 1798, the legislature
amended a colonial-era Mill Act to permit private mill owners to flood
neighboring properties without seeking prior court permission (which was
required in Virginia) and to pay damages on a yearly basis, even if the land
was permanently flooded. More important, the revised act limited injured
property owners to specified financial compensation, thereby denying them
punitive damages for trespass and the use of traditional common law remedies
to abate nuisances. In 1814, the Massachusetts Supreme Court upheld
this statutory mode of compensation and thus gave judicial sanction to
the legislature’s redefinition of traditional property rights. When the legislature
again amended the Mill Act in 1825 to facilitate the flooding of
adjacent lands, the Supreme Judicial Court accepted the changes and noted,
“the encouragement of the mills has always been a favorite object with the
legislature.”49 Accepting the legislature’s understanding of “offsetting benefits”
in another section of the act, the court allowed mill owners to avoid
paying any compensation to the landowner by showing that the benefits of
irrigation outweighed the injuries caused by the flooding. Such offsets were
in fact required by many legislatures and almost always accepted by courts.
Legislatures likewise took the lead with respect to business incorporations.
Before 1790, most acts of incorporation were either municipal
statutes making towns into “bodies politic” or charters creating religious,
educational, and charitable institutions. Thereafter, the number of businessrelated
incorporations soared. In Massachusetts, nearly a third of the charters
granted in the 1790s went to internal improvement companies and other
businesses, and unexpectedly raised questions about the financial liability
of shareholders. In addressing the issue of liability, the Massachusetts
Supreme Court initially relied on traditional precepts. Just as municipal
corporations could levy taxes on their residents to defray unusual expenses,
the court argued by analogy in Thompson v. Russell (1800), so business corporations
could assess shareholders to cover unanticipated costs. As the
negative implications of imposing unlimited liability on investors became
apparent, the judges distinguished business corporations from municipal
governments. In Andover and Medford Turnpike Corporation v. Gould (1809),
the Massachusetts Court rejected common law principles and ruled that
shareholders were liable for subsequent assessments only if they had explicitly
agreed to pay them. As legislatures subsequently mulled over this
problem, they followed the lead of the Massachusetts court. By the 1820s,
most legislative charters to business corporations provided limited liability
to their shareholders; working in tandem, development-minded legislators
and judges had resolved the liability issue.
49Wolcott Woollen Mfg. Co. v. Upham, 22 Mass. (5 Pick.), 292, at 294 (1827).
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Magistrates, Common Law Lawyers, Legislators 591
Northern judges also acted independently to assist public and private
developers. In the leading case of Callendar v. Marsh (1823), the Massachusetts
Supreme Court denied compensation to a property owner when
the excavation of an adjoining city street damaged his house.50 The court’s
decision was that such “consequential damages” did not constitute a taking,
but was damnum absque injuria (an injury without a legal remedy). Strikingly,
legislatures and constitutional conventions did not override Callendar (and
similar decisions in other states). Most of their members, like most judges,
and most citizens, favored economic improvement at the lowest cost to the
public. Developmental policies, that is, reflected the views of a majority of
politically active citizenry. Rather than driven by the judiciary in concert
with economic elites, they were primarily the product of legislative statutes.
Social issues – religion, temperance, women’s rights, and slavery – were
more controversial. There was no consensus within the political elite or the
populace as whole, so legislatures and courts often disagreed over the proper
course of public policy. The contentious issue of the church establishment
in Massachusetts is a case in point. The state’s constitution of 1780 retained
compulsory religious taxation and the territorial parish system. This system
favored the numerically dominant Congregational Church, but it did
allow members of other sects or denominations to funnel taxes to their
churches. Then the judiciary issued a series of contradictory interpretations.
Initially, the Massachusetts Supreme Court allowed only incorporated religious
societies to receive tax payments; this decision penalized Baptists,
who generally refused to subject themselves to state charters. Subsequently,
in Murray v. First Parish Gloucester (1786), the court eliminated this incorporation
stipulation, only to reimpose it in the case of Barnes v. First Church
in Falmouth (1810). Because this ruling sent the taxes of most Baptists to
Congregational ministers, there was a major political backlash. Mustering
their forces first at the polls and then in the legislature, Baptists and other
religious minorities won passage in 1811 of a Religious Freedom Act. This
act overturned Barnes and other anti-dissenter court decisions and, equally
significant, asserted the authority of the legislature to construe the meaning
of the religious clauses in the state constitution.
A generation later, legislatures and judges confronted one another over
two other social issues: women’s property rights and the restriction of alcoholic
beverages. InWestervelt v. Gregg (1854), the NewYork Court of Appeals
voided that part of the MarriedWomen’s Property Act (1848) that bestowed
property rights on women married before its passage; in the process, the
court adumbrated the novel legal doctrine of “substantive due process.” Two
years later, in the prohibition case of Wynehamer v. People (1856), the judges
50 1 Pick. 418 (Mass. 1823).
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592 James A. Henretta
fully articulated the due process doctrine and claimed for the courts the
broad veto power over legislative actions that shaped constitutional debates
for much of the remainder of the nineteenth century.
CONCLUSION
That mid-century enhancement of judicial power is part of another story. In
1820 it was the legislature, not common law judges or powerful magistrates,
that stood at the apex of the American legal system. Because of legislative
intervention, the powerful oligarchies of county magistrates that in summary
fashion had ruled the seventeenth century had become county commissioners
lacking jurisdiction over criminal matters and subject to popular
election and state supervision. Legislators had also intruded significantly
into the eighteenth-century common law system of judges and juries. By
enacting laws that diminished the authority of juries and enhanced the
power of judges, they continued through statute law the process begun by
trained lawyers using common law pleas. Thanks to the new state constitutions,
the legislators and their constituents became the prime shapers of the
legal system, largely unimpeded by governors and only partially restrained
by an emergent judiciary.
For the population of European descent, the first two centuries of English
law in North America thus witnessed the successive ascendancy of three
legal systems: a seventeenth-century regime of powerful magistrates; an
eighteenth-century common law order run by lawyers, judges, and juries;
and an early-nineteenth-century republican world of quasi-sovereign state
legislatures. Two periods of transition – the first from 1680 to 1720, the
second from 1770 to 1810 – witnessed the appearance of new ideologies,
procedures, and institutions that changed, sometimes subtly and sometimes
dramatically, the ways in which thousands of white Americans conducted
their day-to-day lives and legal affairs.
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bibliographic essays
chapter 1: law, colonization, legitimation and
the european background
anthony pagden
The most recent comparative account of the British and other European colonizing
projects in the Americas is J. H. Elliot, Empires of the Atlantic World
Britain and Spain in America 1492–1830 (New Haven, 2006). See also Anthony
Pagden, Lords of all the World. Ideologies of Empire in Britain, France and Spain,
1400–1800 (New Haven, 1995) and “The Struggle for Legitimacy and the
Image of Empire in the Atlantic to c. 1700,” in Nicholas Canny ed., The Origins
of Empire, The Oxford History of the British Empire (Oxford, 1998), vol. I, 34–54.
David Armitage, The Ideological Origins of the British Empire (Cambridge, 2000)
provides the most authoritative account of the objectives of the early empire.
The articles collected in David Armitage, ed. Theories of Empire, 1450–1800
(Aldershot, UK, 1998) cover aspects of all the European claims to America.
Klaus E. Knorr, British Colonial Theories 1570–1850 (Toronto, 1944) provides
a still useful survey. See also Peter Miller, Defining the Common Good: Empire,
Religion and Philosophy in Eighteenth-Century Britain. (Cambridge, 1994). For
the notion of composite monarchies see J. H. Elliott, “A Europe of Composite
Monarchies,” Past and Present 137 (1992), 48–71.
The rituals of possession employed by European settlers in America are discussed
in Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New
World, 1492–1640 (Cambridge, 1995). An earlier, but legally more sophisticated
account is also to be found in Friedrich August von der Heydte, “Discovery,
Symbolic Annexation and Virtual Effectiveness in International Law,”
American Journal of International Law 29 (1935), 448–71. One of the most extensive
accounts of the early English claims to sovereignty in North America is
still John Thomas Juricek, English Claims in North America to 1660: A Study in
Legal and Constitutional History, Ph.D. thesis, University of Chicago, 1970,
pp. 512, 669–71, which is unfortunately unpublished and is likely to
remain so.
593
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594 Bibliographic Essays
On the legal pluralism of the early modern Atlantic world see the essays
in Christopher Tomlins and Bruce H. Mann eds., The Many Legalities of Early
America (Chapel Hill, NC, 2001), and Christopher Tomlins, “The Legal Cartography
of Colonization, the Legal Polyphony of Settlement: English Intrusion
on the American Mainland in the Seventeenth Century,” Law and Social Inquiry
26 (2001), 315–72.
On the question of Parliamentary sovereignty see Ian K. Steele, “The British
Parliament and the Atlantic Colonies to 1760: New Approaches to Enduring
Questions,” in Philip Lawson ed., Parliament and the Atlantic Empire (Edinburgh,
1995), 29–46 and Martin S. Flaherty, “The Empire Strikes Back: Annesely v.
Sherlock and the Triumph of Imperial Parliamentary Supremacy,” Columbia Law
Review 87 (1987), 593–622. For a broader consideration of the relationship
between Parliament and the Crown, see David Lieberman, The Province of Legislation
Determined: Legal Theory in Eighteenth-Century Britain (Cambridge, 1989).
David Konig, “Colonization and the Common Law in Ireland and Virginia,
1569–1634,” in James A. Henretta, Michael G. Kammen and Stanley N. Katz,
eds., The Transformation of Early American History: Society, Authority and Ideology
(New York, Knopf, 1991) discusses the difficulties involved in extending the
common law outside the realm.
Grounds for Possession
Stuart Banner, How the Indians Lost Their Land: Law and Power on the American
Frontier (Cambridge, MA, 2005) is the most extensive discussion of all the legal
debates over the seizure of Indian lands.
A general overview of the status of the American Indians is provided by
Robert A.Williams, The American Indian inWestern Legal Thought. The Discourses
of Conquest (New York, 1990). See also Colin G. Calloway, New Worlds for All:
Indians, Europeans and the Remaking of Early America (Baltimore, 1997). L. C.
Green and P. Dickason, The Law of Nations and the New World (Edmonton,
1989), provide a context in international law for the occupation of America.
See also Patricia Seed, American Pentimento: The Invention of Indians and the Pursuit
of Riches (Minneapolis, 2001). William Cronon, Changes in the Land: Indians,
Colonists and the Ecology of New England (New York, 1988) provides a account
of the differing views on the land and its possible occupation by the Indians
and the Europeans.
Conquest
The most powerful argument for the metropolitan perception of the rights
of the Crown in the Americas and for the claim that the colonies were, in
effect, lands of conquest is to be found in Craig Yirush, From the Perspective of
Empire: The Common Law, Natural Rights and the Formation of American Political
Theory, 1689–1775, Ph.D. thesis, Johns Hopkins University 2004, which will
shortly be published as a book. The still classic account of the relationship
between the metropolis and the colonies is Jack P. Greene, Peripheries and
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Bibliographic Essays 595
Center: Constitutional Development in the Extended Polities of the British Empire and
the United States 1607–1788 (Athens, GA, 1986). For the broader political
context see Richard Tuck, The Rights of War and Peace. Political Thought and the
International Order from Grotius to Kant (Oxford, 1999) On feudal tenure and
“free and common socage,” see A.W.B. Simpson, An Introduction to the History
of the Land Law (Oxford, 1961).
On the similarities between the Irish and American cases see James Muldoon,
“Spiritual Conquests Compared: Laudabiliter and the Conquest of the
Americas,” in Steven B. Bowman and Blanche E. Cody, eds., Iure Veritas: Studies
in Memory of Schafer Williams, (Cincinnati, 1991), 174–86. The significance of
the status of Ireland is discussed in further detail by Martin S. Flaherty, “The
Empire Strikes Back: Annesely v. Sherlock and the Triumph of Imperial Parliamentary
Supremacy,” Columbia Law Review 87 (1987) 593–622. And see, in
general, Nicholas Canny, Making Ireland British 1580–1650 (Oxford, 2001).
The analogous case in Canada is discussed in Bruce Clark, Native Liberty, Crown
Sovereignty. The Existing Aboriginal Right of Self-Government in Canada (Montreal,
1990).
Discovery
On the question of terra or res nullius and the seventeenth-century debates over
the rights of the American Indians, see James Tully, “Rediscovering America:
The Two Treatises and Aboriginal Rights,” in Quentin Skinner, ed., An Approach
to Political Philosophy: Locke in Context (Cambridge, 1993), 137–76; “Aboriginal
Property andWestern Theory: Recovering a Middle Ground,” Social Philosophy
and Policy 11 (1994), 153–80; and “Property, Self-Government and Consent,”
Canadian Journal of Political Science, 27 (1995), 105–32. On the place of America
in John Locke’s Two Treatises on Government see, in general, Barbara Arneil, John
Locke and America: The Defence of English Colonialism (Oxford, 1996), and for a
more detailed discussion, James Tully, “Placing the Two Treatises,” in Nicholas
Philipson and Quentin Skinner, eds., Political Discourse in Early-Modern Britain
(Cambridge, 1993), 257–58 and Strange Multiplicity. Constitutionalism in an Age
of Diversity (Cambridge, 1995), 70–81. David Armitage, “John Locke, Carolina
and the Two Treatises on Government,” Political Theory 32 (2004), 602–27, assesses
the role of Locke’s political theory in the foundation of the Carolinas.
For a consideration of the analogous use of the argument from res or terra nullius
in the lands of the Ottoman Empire see Benedict Kingsbury, “Confronting
Difference: The Puzzling Durability of Gentili’s Combination of Pragmatic
Realism and Normative Judgment,” American Journal of International Law 92
(1998), 713–23. On the discussion of res nullius as it applies to Australia see
Stuart Banner, “Why Terra Nullius? Anthropology and Property Law in Early
Australia,” Law and History Review 23 (2005), 96–132, and Carole Pateman,
“The Settler Contract,” in Carole Pateman and Charles Mills, eds., Contract
and Domination, forthcoming. The somewhat different case of New Zealand
is discussed by J. G. A. Pocock, “Law, Sovereignty and History in a Divided
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Culture: The Case of New Zealand and the Treaty of Waitangi,” McGill Law
Journal 43 (1998), 481–506,
On Hugo Grotius, John Selden, and the debate over the freedom of the seas,
see especially the introduction by David Armitage to Hugo Grotius, The Free
Sea (Indiana, 2004), and Anthony Pagden, “Commerce and Conquest. Hugo
Grotius and Serafim de Freitas on the Freedom of the Seas,” Mare Liberum 20
(2000), 33–55.
On Chief Justice John Marshall, see in general Jean Edward Smith, John
Marshall: Definer of a Nation (New York, 1996). On Johnson v. M’Intosh see
Lindsay Gordon Robertson, Johnson v. M’Intosh: Land, Law and the Politics of
Federalism, 1773–1842, Ph.D. thesis, University of Virginia, 1997, and Eric
Kades, “History and Interpretation in the Great Case of Johnson v. M’Intosh,”
Law and History Review 19 (2001), 67–116. On Marshall’s historiography,
see Lindsay G. Robertson, “John Marshall as Colonial Historian: Reconsidering
the Origins of the Doctrine of Discovery,” Journal of Law and Politics 13
(1997), 759–77. In Conquest by Law: How the Discovery of America Dispossessed
the Indigenous Peoples of their Lands (Oxford, 2005), Robertson draws on new
documentary evidence to reexamine Marshall’s ruling in Johnson. For a somewhat
different approach see Steven T. Newcomb, “The Evidence of Christian
Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. McIntosh
and Plenary Power,” New York Review of Law and Social Change 20 (1993),
303–41.
Purchase and Concession
Karen Ordahl Kupperman, Settling with the Indians. The Meeting of English and
Indian Cultures in America, 1580–1640 (Totowa, 1980) provides accounts of the
treaty negotiations between Indians the English settlers. See also Dorothy V.
Jones, License for Empire: Colonialism by Treaty in Early America (Chicago, 1982),
on the Proclamation line inter alia.
On differing concepts of property see James Warren Springer, “American
Indians and the Law of Real Property in Colonial New England,” American
Journal of Legal History 30 (1986), 25–58. For a detailed account of how one
Indian group was paid for its land see Harry AndrewWright, “The Technique of
Seventeenth-Century Indian Land Purchases,” Essex Institute Historical Collections
77 (1941), 185–976, and John Strong, “Tribal Systems and Land Alienation: A
Case Study,” inWilliam Cowan, ed., Papers of the Sixteenth Algonquin Conference
(Ottawa, 1985), 183–200. For a detailed analysis of one particular region see
Jean M. O’Brien, Dispossession by Degrees: Indian Land and Identity in Natick,
Massachusetts, 1650–1790 (Cambridge, 1997).
Conclusion
On the aftermath of the Seven Years War see in general and in the broader
British context, P.J. Marshall, The Making and the Unmaking of Empires. Britain,
India and America c. 1750–1783 (Oxford, 2005).
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On the question of divided sovereignty, see Edward Keene, Beyond the Anarchical
Society: Grotius, Colonialism and Order in World Politics (Cambridge, 2002)
and in the context of the English Atlantic, see J.C.D. Clark, The Language of
Liberty 1660–1832: Political Discourse and Social Dynamics in the Anglo-American
World (Cambridge, 1994).
On the prelude to the Revolution see Barbara Black, “The Constitution of
Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124
(1976), 1157–1211, and Jack P. Greene, “From the Perspective of Law: Context
and Legitimacy in the Origins of the American Revolution,” in Jack P. Greene,
ed., Interpreting Early America: Historiographical Essays (Charlottesville, 1996),
467–92.
chapter 2: the law of native americans, to 1815
katherine a. hermes
General
Academic scholarship on American Indian legal history has been bifurcated
into distinct areas: those who consider the legal history of Native Americans to
be a study of first Anglo-European and then U.S. law imposed on the Native
Americans, and those who want to know what law meant to Native Americans
and what laws they possessed. The earliest scholars fall into the first category,
and the most recent group of these wrote in the years prior to and through the
1960s and 1980s as the sole group working on what is called American Indian
Law. In the 1970s another group of scholars began the transition from studying
the history of case law applicable to Native Americans to studying the effect that
Anglo-European and U.S. law had on native communities. This latter group
often discussed law only in single chapters of books, although one scholar,
Yasuhide Kawashima, made it his field of study. His first book, Puritan Justice
and the Indian: White Man’s Law in Massachusetts, 1630–1763 (Middletown, CT,
1986), accepted the dominance of white law on Native Americans and stayed
within the parameters of Anglo-American history. Kawashima eventually began
to look at the perspective of the Indians themselves, and he has been followed
by scholars in legal anthropology and social history. Later books such as Igniting
King Philip’sWar: The John Sassamon Murder Trial (Kansas, 2001) include much
more of the Indian perspective. The body of historical literature that documents
and analyzes the treaties entered into by the European colonial powers and the
United States is substantial. The interest in Native American laws and legal
practices is much less developed than the historiography surrounding native
customs, economics, art, and almost any other subject.
American Indian Law
The classic scholarship on American Indian law that is still of great importance
today began with the work of two scholars, Francis Prucha and Wilcomb E.
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Washburn. Although these men represent a more traditional form of scholarship,
they were not unsympathetic to the Indians. Neither did they focus
entirely on the colonial or Early Republican periods. Their works reach into
twentieth-century law, and both address the changing historical methods that
have affected the study of American Indian legal history. Prucha has sometimes
been called an apologist for the United States, but his work on treaties and
translated speeches necessarily gave him a perspective that one can either find
balanced or tilted toward the United States. In addition to the several bibliographies
he compiled for researchers of Native American history, Prucha’s
significant works include American Indian Policy in the Formative Years: The
Indian Trade and Intercourse Acts, 1780–1834 (Cambridge, MA, 1962), Documents
of United States Indian Policy (Lincoln, NE, 1975, 1990), Indian Policy in
the United States: Historical Essays (1981), and The Great Father: The United States
Government and the American Indians (Lincoln, NE, 1984). Another of his significant
works is Sovereignty, Suppression, and Survival: The Red Man in American
History (1974), which is an overview of the history of American Indians from
prehistory to the American Indian Movement and includes chapters on ethnological
problems and Indian social structure. Because the book is reflective of
a lifetime of study and covers such a vast amount of time, it is less valuable
to academics than some of his other works, but it lays out in broad strokes
what the U.S. policies regarding Indians have been. It is a good starting point
for understanding how the U.S. government has shaped the question of Indian
sovereignty because it addresses the question of sovereignty, so central to the
1970s when it was written and a recurring issue.
Washburn was also a narrative historian who sought to lay out clearly the
history of the Indians, and especially their dispossession of the land. (He also
dealt with anthropology and several Indian topics I have omitted here. He
edited several documentary collections.) Although his works are too numerous
to list, the best of these specifically on legal matters is Washburn’s Red Man’s
Land, White Man’s Law: A Study of the Past and Present Status of the American
Indian (New York, 1971). His scholarship included complex questions about
law and history in such essays as “History Reconsidered: The Supreme Court’s
Use and Abuse of History,” OAH Newsletter 11 (1983), 7–9. The persistence of
scholarship that accepted the premise that native peoples most often entered
the legal arena in the treaty process is evidenced by such books as Jennings
C. Wise, The Red Man in the New World Drama: A Politico-legal Study with
a Pageantry of American Indian History, intro. Vine Deloria, Jr. (New York,
1971).
Scholarship on treaty law has also broadened its scope, though, and now
includes works by historians of Indian culture, such as Vine Deloria, Jr. and
Raymond J. DeMallie, eds., (with a foreword By Daniel K. Inouye), Documents
of American Indian Diplomacy: Treaties, Agreements and Conventions, 1775–1979
(Norman, OK, 1999). Beyond treaties, there are post-colonial scholars who look
broadly at Western law as it applied to Indians, such as Robert A. Williams,
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Jr., The American Indian inWestern Legal Thought: The Discourses of Conquest (New
York, 1992). The effects of colonial law on Native Americans have been explored
only recently in Eric Cheyfitz, “Native Americans and the Constitution: The
Colonial Double-Bind: Sovereignty and Civil Rights in Indian Country,”
University of Pennsylvania Journal of Constitutional Law 5 (2003).
Perhaps the most influential, classic scholar on the history of Indians of early
North America was Francis Jennings. His groundbreaking work to a large
extent defies exact lines of categorization. He was the editor-in-chief of The
History and Culture of Iroquois Diplomacy: An Interdisciplinary Guide to the Treaties
of the Six Nations and their League (Syracuse, NY, 1985). Jennings wrote his
masterful The Invasion of America: Indians, Colonialism, and the Cant of Conquest
(New York, 1975), which includes a substantial chapter on jurisdiction and
how colonial law was applied to Indians. In addition to books on the Iroquois
League – including his most famous one, The Ambiguous Iroquois Empire (New
York, 1984), which continued his work begun in The Invasion of America –
Jennings offered a compelling but despairing vision of how Indians, through
law and through war, were destroyed. His work changed the way in which
scholars thought of Indians and of the conquest, and due to his work the
word “discovery” disappeared from the historical lexicon when referring to the
contact period. Yet Jennings did not include in his work any substance or
theory of how to understand Native American law. His most recent book, The
Founders of America (New York, 1993), showed that Native Americans had not
been exterminated but had in fact begun a resurgence.
The Legal History and Study of Indian Law in Law Schools
There are some “cases and materials” books on Indian law. These primarily begin
with the Federal Constitution of 1789, but occasionally include such documents
as the Northwest Ordinance before the Constitution. Few contain documents
written by Indians, such as wills for example, but are instead compilations of
federal appellate and Supreme Court opinions on Indians. Most of these contain
little before 1815 except the case Fletcher v. Peck, but the more important of
these works include Robert N. Clinton, Carole E. Goldberg, and RebeccaTsosie,
American Indian Law: Cases and Materials (Student ed. 2005).
The Study of Interpreters and Its Importance for Native American Legal History
Although few historians who study the role of interpreters in colonial relations
consider themselves legal historians of Native America, their work has
tremendous importance for the field. Much of what scholars can discern about
Native American law took place at council meetings and treaty negotiations.
Among the most important scholarship on negotiation is James Merrell, Into
the Woods: Negotiators on the Pennsylvania Frontier (New York, 2000) and Nancy
L. Hagedorn, “‘A Friend to Go Between Them’: The Interpreter as Cultural
Broker During Anglo-Iroquois Councils, 1740–1770,” Ethnohistory 35 (1988),
60–80.
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The Law of Native America
There exists a great deal of dispute about whether it is possible to write anything
about what Native Americans constructed as law. Some authors have tried to use
European terms to frame the subject so that one can understand comparatively,
at least, what Native Americans said they thought about a given area of law.
An example of this is Katherine A. Hermes’s “Jurisdiction in the Colonial
Northeast: Algonquian, English and French Governance,” American Journal
of Legal History 43 (1999), 52–73. Essays by Katherine Hermes, Ann Marie
Plane, and James Brooks in Christopher Tomlins and Bruce Mann, eds., The
Many Legalities of Early America (Chapel Hill, NC, 2001) approach native history
using colonial sources to reveal what can be known of Indian practice and ideas.
There was also a surge during the Law and Literature movement of the
1980s in which people of various disciplines published on law, colonialism,
and Indians. Post-colonial studies provided an interdisciplinary avenue for
looking at native life, including law, and have been useful both for thinking
about methodology and substance. One collection of essays by Native American
authors, Native Voices: American Indian Identity and Resistance, edited by Richard
A. Grounds, George E. Tinker, and David E. Wilkins (Lawrence, KS, 2003),
includes, among others, “The Metaphysics of Federal Indian Law and U.S.
Colonialism of American Indians” by M. A. Jaimes Guerrero and “Contours
of Enlightenment: Reflections on Science, Theology, Law, and the Alternative
Vision of Vine Deloria, Jr.” by Ward Churchill. Many of the essays deal with
current or post-1815 issues, but are valuable to the history of the earlier period.
Some scholars have studied law by studying issues of power, such as Claudio
Saunt, A New Order of Things: Property, Power and the Transformation of the Creek
Indians, 1733–1816 (Cambridge, 1999), which quickly became a model for
other studies.
Recent scholars have greatly enriched our understanding of Native American
norms and law, both in indigenous communities and Christianized colonial
settlements. Yet many of these scholars still do not confront the question of
the law of Native America head on. They examine accommodation strategies,
assimilation, and acculturation, touching therefore on what changed in native
practices. They often focus on life-cycle events, such as marriage, Ann Marie
Plane, Colonial Intimacies: Indian Marriage in Early New England (Ithaca, NY,
2002), and work and death, Jean O’Brien, Dispossession by Degrees: Indian Land
and Identity in Natick, Massachusetts, 1650–1790 (Cambridge, 2003). These
books use English vital records, probate records, and land deeds to show ways in
which Native Americans did or did not use the English law that was increasingly
being applied to them.
The praying towns and reserves for Christianized Indians have also yielded
information on the law of Native America, but the reader needs to tease it
out of the studies. Richard Cogley, John Eliot’s Mission to the Indians Before King
Philip’s War (Cambridge, MA, 1999), is not interested per se in law, but shows
how Indians develop legal institutions.
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With these community studies emerging, some historians have sought to
write the broader sweep and have begun to include law as part of their analysis,
such as Daniel K. Richter, Facing East from Indian Country (Cambridge, MA,
2003), which was influenced to a large degree by Richard White’s The Middle
Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650–1815
(New York, 1991). Richter’s study often invokes the imagination, but not
when he writes about legal matters. White sees trade, not law, as the great
mediator of violence between Indians and settlers.
The question of conquest and its legal dimensions has also been reevaluated
in Amy Den Ouden, Beyond Conquest: Native Peoples and the Struggle for History
in New England (Lincoln, NE, 2006).
The Constitutional Controversy
In 1977 a controversial book by Donald A. Grinde, The Iroquois League and the
Founding of the American Nation, appeared. It was followed by another book by
Donald A. Grinde and Bruce E. Johansen, Exemplar of Liberty: Native Americans
and the Evolution of Democracy (Berkeley, CA, 1991), which further developed
the then-nascent thesis that the Iroquois Confederacy had been the model for
democracy, the Articles of Confederation, and even the Constitution. Johansen
had also published an article, “Native American Societies and the Evolution
of Democracy in America, 1600–1800,” Ethnohistory 37 (1990), with the same
thesis. Elizabeth Tooker, “The United States Constitution and the Iroquois
League,” Ethnohistory 35 (1988), had argued against such a thesis on the grounds
that only a misunderstanding of Iroquois politics and government could lead
to such a conclusion. In 1996 the William and Mary Quarterly devoted an issue
to the question of Iroquois influence, with Grinde and Johansen arguing their
case and Samuel B. Payne, “The Iroquois League, the Articles of Confederation,
and the Constitution,”William and Mary Quarterly, 3rd ser., 53 (1996), arguing
against it. The weight of historical opinion remains largely against the thesis
advanced by Grinde and Johansen, though aspects of it appear in textbooks
and in books for high-school students. It is the one area in the literature,
though, in which Native American law is even considered to be of importance
to understanding U.S. history. In that way the debate has challenged legal
historians to think about how indigenous law might have shaped colonial law,
much as Indian trading practices influenced English production for the Indian
market.
Books for Non-Specialists or High School Students
In the 1980s, emerging from the civil rights movement, there was an attempt
to educate students about American Indian law who had no legal experience
or training. American Indian Legal Studies: An Indian Legal and Social Studies
Primer (1981), now outdated on recent law and scholarship on the early federal
period, spoke to a generation concerned with the practical application of Indian
law. There are more general books for secondary school students that introduce
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them to Native American practices. Alvin Josephy, The Patriot Chiefs: A Chronicle
of American Indian Resistance (New York, 1961), is also somewhat dated, but
its complex explanation of conflict touches on legal concerns. Many of these
books are regional and therefore have small sections on native customs that
enter the legal arena: Nancy Bonvillain, Hiawatha: Founder of the Iroquois Confederacy
(1992), gives a chronology, whereas Dennis Brindell Fradin, Hiawatha:
Messenger of Peace (1992), focuses on the Iroquois Confederacy and includes the
debate about whether or not the Confederacy had an influence on the U.S.
Constitution. Other regional histories include general books, such as Esther K.
Braun and David P. Braun, The First Peoples of the Northeast (Lincoln, NE, 1994),
that touch briefly on law. Local nonfiction books for secondary-school readers
such as Keith Egloff and DeborahWoodward, First People: The Early Indians of
Virginia (Charlottesville, VA, 1992), have sections on Virginia’s ethnohistory.
Few books on Native Americans written for general audiences or high-school
students touch on law, but those that do almost always deal with it only in the
modern period.
Methodology
In few fields is methodology as important or diverse as in the study of Native
American legal history. Of significant importance to many scholars of Native
America is a book in legal anthropology, Sally Engle Merry, Colonizing Hawai’i:
The Cultural Power of Law (Princeton, NJ, 2000). Indeed, much of Merry’s work,
including earlier books that had nothing to do with indigenous peoples, has
had an influence on the way legal historians of Native America have conducted
their research. Nancy Shoemaker, ed., Clearing a Path: Theorizing the Past in
Native American Studies (New York, 2002), is a substantial addition to how to
do Indian history.
Emerging from studies of law and politics are also inquiries into the colonial
period’s usefulness to understanding the present; for example, Kirsten
Matoy Carlson, “Is Hindsight 20–20?: Reconsidering the Importance of Pre-
Constitutional Documents,” American Indian Law Review 30 (2005).
Conclusion
One finds a growing literature on Native American law in the colonial period
appearing in journal articles, but books on the subject are still few. No book
has considered Native American law in its broad spectrum for the colonial and
revolutionary periods. It is therefore necessary to turn to scholarly journals,
collections of essays, and collections of primary sources to find materials.
chapter 3: english settlement and local governance
mary sarah bilder
The scholarship addressing the early settlement and governance of the early
colonies is very extensive. The following works provide good general discussions
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or bibliographies of more specific relevant materials or are particularly worthy
of attention. Many of the scholars mentioned here have written so widely and
prominently that space precludes discussion of more than a fraction of their
work. Readers are urged to use this essay as a point of departure for their own
more extensive bibliographic research.
The best starting point for colonial institutional history remains Charles M.
Andrews, ,The Colonial Period of American History, 4 vols. (New Haven, 1934–
1939). Herbert L. Osgood’s work – The American Colonies in the Seventeenth
Century, 3 vols. (1904; Gloucester, 1957) and “England and the American
Colonies in the Seventeenth Century,” Political Science Quarterly 17 (1902),
206–22 – contains useful details. Merrill Jensen’s introductions in American
Colonial Documents to 1776 (New York, 1955) deserve wider attention.W. Keith
Kavenagh’s Foundations of Colonial America, 3 vols. (New York, 1973), contains
an excellent collection of primary documents and introductions, and Donald
S. Lutz’s Colonial Origins of the American Constitution: A Documentary History
(Indianapolis, 1998) offers a nice shorter collection. Good overviews of colonial
institutional history appear in T. H. Breen & Timothy Hall, Colonial America in
an Atlantic World (New York, 2004); Richard Middleton, Colonial America: A
History, 1585–1776 (2d ed., Oxford, 1996); and Alan Taylor, American Colonies
(New York, 2001). For particular colonies, the volumes of A History of the
American Colonies (1973–1989) have excellent bibliographies.
Overviews of the historiography can be found in Christopher L. Tomlins,
“Introduction,” in Christopher L. Tomlins and Bruce H. Mann, eds., The Many
Legalities of Early America (Chapel Hill, NC, 2001), 1–23;William E. Nelson,
“Legal History before the 1960’s,” in William E. Nelson and John Phillip
Reid, eds., The Literature of American Legal History (New York, 1985), 1–32;
and Stanley N. Katz, “The Problem of a Colonial Legal History,” in Jack P.
Greene and J. R. Pole, eds., Colonial British America (Baltimore, 1984), 457–83.
Two region-specific articles are Richard J. Ross, “The Legal Past of Early New
England: Notes for the Study of Law, Legal Culture, and Intellectual History,”
William and Mary Quarterly, 3d Ser., 50 (1993), 28–41, andWarren M. Billings,
“Seventeenth-Century Virginia Law and its Historians, with an Accompanying
Guide to Sources,” Law Library Journal 87 (1995), 556–75. Good bibliographic
essays appear in Peter Charles Hoffer, Law and People in Colonial America (rev.
ed., Baltimore, 1998) and Kermit L. Hall, The Magic Mirror: Law in American
History (New York, 1989).
On the trading companies, see Cecil T. Carr, ed., Select Charters of Trading
Companies (1530–1707) (London, 1913); George Cawston and A. H. Keane,
The Early Chartered Companies (A. D. 1296–1858) (London, 1896); and Maud
Sellers, ed., The Acts and Ordinances of the Eastland Company (London, 1906).
Vol. I, ch. 8 and Vol. II ofWilliam Robert Scott, The Constitution and Finance of
English, Scottish and Irish Joint-Stock Companies to 1720 (1910–1912; New York,
1951) have a fine analysis of the organization of the joint-stock company and the
early settlement companies. For background on the forms, see Shelagh Bond and
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Norman Evans, “The Process of Granting Charters to English Boroughs, 1547–
1649,” English Historical Review 91 (1976), 102–20; R. E. Latham, “Hints on
Interpreting the Public Records II Letters Patent,” The Amateur Historian 1
(1952–1953), 47–51; Charles Deane, “The Forms in Issuing Letters Patent by
the Crown of England,” Proceedings of the Massachusetts Historical Society, 1869–
1870, 11 (1871), 166–96. On corporate governance in England, useful recent
discussions include Paul D. Halliday, Dismembering the Body Politic: Partisan Politics
in England’s Towns, 1650–1730 (Cambridge, 1998); Catherine F. Patterson,
Urban Patronage in Early Modern England: Corporate Boroughs, The Landed Elite,
and the Crown, 1580–1640 (Stanford, 1999); and Patrick Collinson and John
Craig, eds., The Reformation in English Towns, 1500–1640 (New York, 1998).
Most colonial charters are in the seven-volume The Federal and State Constitutions,
Colonial Charters, and Other Organic Laws of the States, Territories, and
Colonies Now or Heretofore Forming the United States, ed. Francis N. Thorpe (Washington,
DC, 1909; online version available through Yale University’s Avalon
site). For an interesting discussion of charters and prerogative powers, see Elizabeth
Mancke, “Chartered Enterprises and the Evolution of the British Atlantic
World,” in Elizabeth Mancke & Carole Shammas, eds., The Creation of the British
AtlanticWorld (Baltimore, 2005), 237–62. On specific charters, see Tim Thornton,
“The Palatinate of Durham and the Maryland Charter,” American Journal
of Legal History 45 (2001), 235–55, and Albert Carlos Bates, The Charter of
Connecticut: A Study (Hartford, 1932). On repugnancy, see Mary Sarah Bilder,
“The Corporate Origins of Judicial Review,” Yale Law Journal 116 (2006), 502–
66, and Jack P. Greene, Peripheries and Center: Constitutional Development in the
Extended Politics of the British Empire and the United States, 1607–1788 (Athens,
GA, 1986), 19–42.
Published official English materials relating to the colonies appear in Acts
of the Privy Council of England, Colonial Series (1908–1912; Buffalo, 2004),
vol. I, 1613–1680; vol. II, 1680–1720; and vol. VI, certain unbound papers;
Calendar of State Papers, Colonial Series (1860; reprint, Vaduz, 1964; available
on CD-ROM), vol. I, 1574–1660; Clarence S. Brigham, ed., British Royal
Proclamations Relating to America, 1603–1783 (Worcester, 1911); Leo Francis
Stock, ed., Proceedings and Debates of the British Parliaments Respecting North
America (Washington, 1924; vols. I–III cover 1542–1727). The House of Lords
Journal and House of Commons Journal are available online. For unpublished
materials, Charles M. Andrews, Guide to the Manuscript Materials for the History
of the United States to 1783, in the British Museum, in Minor London Archives, and
in the Libraries of Oxford and Cambridge (Washington, 1908) and Grace Gardner
Griffin, A Guide to Manuscripts Relating to American History in British Depositories
Reproduced for the Division of Manuscripts of the Library of Congress (Washington,
1946) remain invaluable.
On the early settlement period, David Beers Quinn’s work remains the
standard, in particular, England and the Discovery of America, 1481–1620 (New
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York, 1974); The Voyages and Colonising Enterprises of Sir Humphrey Gilbert (1940;
Nendeln, 1967); Set Fair for Roanoke: Voyages and Colonies, 1584–1606 (Chapel
Hill, NC, 1985); The Roanoke Voyages, 1584–1590, 2 vols. (London, 1955); and,
with Alison M. Quinn, The English New England Voyages, 1602–1608 (London,
1983). The documents in his five-volume New American World: A Documentary
History of North America to 1612 (New York, 1979) are particularly fine. Recent
work on the English in Ireland includes the scholarship of Nicholas P. Canny,
most recently, Making Ireland British, 1580–1650 (Oxford, 2001), as well as
John McGurk, The Elizabethan Conquest of Ireland: The 1590s Crisis (Manchester,
1997). The relationship of the Irish experience to colonial law is elucidated in
David Thomas Konig, “Colonization and the Common Law in Ireland and
Virginia, 1569–1634,” in James A. Henretta et al., eds., The Transformation of
Early American History (New York, 1991), 70–92.
Of law and governance in the colonies, Virginia and Massachusetts have
received the most sustained scholarly attention. For a summary of older work,
see George Athan Billias, ed., Law and Authority in Colonial America: Selected
Essays (1965; New York, 1970). On Virginia, see the scholarship ofWarren M.
Billings and David T. Konig:Warren M. Billings, “The Transfer of English Law
to Virginia 1606–50,” in K. R. Andrews et al., eds., The Westward Enterprise,
English Activities in Ireland, the Atlantic, and America, 1480–1650: Essays in
Tribute to David Beers Quinn, (Liverpool, 1978), 215–44, and David T. Konig,
“The Virgin and the Virgin’s Sister: Virginia, Massachusetts, and the Contested
Legacy of Colonial Law,” in Russell K. Osgood, ed., The History of the Law
in Massachusetts: The Supreme Judicial Court, 1692–1992 (Boston, 1992), 81–
115. On Plymouth, see George L. Haskins, “The Legal Heritage of Plymouth
Colony,” in David H. Flaherty, ed., Essays in the History of Early American Law
(Chapel Hill, NC, 1969), 121–6; George D. Langdon, Jr., Pilgrim Colony:
A History of New Plymouth, 1620–1691 (New Haven, 1966), ch. 7; and, for
primary sources, see David T. Konig, ed., The Plymouth Court Records, 1686–
1859 and William Bradford’s Of Plymouth Plantation, 1620–1647, ed. Samuel
Eliot Morison (New York, 1952). The materials on the Massachusetts Bay
colony are voluminous. On the companies and the vote, see Frances Rose-
Troup, The Massachusetts Bay Company and its Predecessors (New York, 1930)
and Ronald Dale Karr, “The Missing Clause: Myth and the Massachusetts Bay
Charter of 1629,” The New England Quarterly 77 (2004), 89–107. On law and
governance, classics include David Thomas Konig, Law and Society in Puritan
Massachusetts: Essex County, 1629–1692 (Chapel Hill, NC, 1979) and George
L. Haskins, Law and Authority in Early Massachusetts: A Study in Tradition and
Design (New York, 1960). The extensive scholarship is discussed well in Daniel
R. Coquillette, “Introduction: The ‘Countenance of Authoritie,’” in Daniel
R. Coquillette, ed., Law in Colonial Massachusetts, 1630–1800 (Boston, 1984),
xxi–lxii. The struggles over power in the 1630s in Massachusetts Bay are
analyzed in the works of Francis J. Bremer and Edmund S. Morgan; for example,
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Bremer, “The County of Massachusetts: The Governance of John Winthrop’s
Suffolk and the Shaping of the Massachusetts Bay Colony,” in Francis J. Bremer
and Lynn A. Botelho, eds., The World of John Winthrop: Essays on England and
New England, 1588–1649 (Charlottesville, VA, 2005), 187–236, and Morgan,
The Puritan Dilemma: The Story of John Winthrop (Boston, 1958). For a focus
on the relationship of covenants to government, see John Witte, Jr., “How
to Govern a City on a Hill: The Early Puritan Contribution to American
Constitutionalism,” Emory Law Journal 39 (1990), 41–64.
Other less successful settlements have drawn less attention. On Newfoundland
and Nova Scotia, older scholarship should be consulted: D. W. Prowse,
History of Newfoundland from the English, Colonial and Foreign Records (2d ed., London,
1896); St John Chadwick, Newfoundland: Island into Province (Cambridge,
1967); Thomas H. McGrail, Sir William Alexander, First Earl of Stirling: A Biographical
Study (London, 1940), chapters 5 and 6 on Nova Scotia; George Pratt
Insh, Scottish Colonial Schemes, 1620–1686 (Glasgow, 1922), ch. 2; and George
Bourinot, Builders of Nova Scotia; A Historical Review (Toronto, 1900; includes
the charter). On the Piscataqua settlement, see Genevieve Cora Fraser, “David
Thomson: The Scottish Founder of New Hampshire,” The Scottish Genealogist
(June 1999, Sept. 1999, Dec. 2000) and Charles Deane, “Indenture of David
Thomson and Others,” Proceedings of the Massachusetts Historical Society, 1875–
1876 (1876), 358–85. On Providence Island, see Karen Ordahl Kupperman,
Providence Island, 1630–1641: The Other Puritan Colony (Cambridge, 1993). On
the ubiquitous Ferdinando Gorges, see the fine book by Richard Arthur Preston,
Gorges of Plymouth Fort (Toronto, 1953); Sir Ferdinando Gorges and His
Province of Maine, comp. James Baxter Phinney, 3 vols. (Boston, 1890); and Henry
S. Burrage, The Beginnings of Colonial Maine, 1602–1658 (Portland, 1914).
Recent legal histories of individual colonies contain helpful materials. On
Connecticut, see Cornelia Hughes Dayton, Women Before the Bar: Gender, Law,
and Society in Connecticut, 1639–1789 (Chapel Hill, NC, 1995) and Bruce H.
Mann, Neighbors and Strangers: Law and Community in Early Connecticut (Chapel
Hill, NC, 1987). On Delaware, see William M. Offutt, Jr., Of “Good Laws” &
“Good Men”: Law and Society in the Delaware Valley, 1680–1710 (Urbana, IL,
1995). On Georgia, see Jack P. Greene, “Travails of an Infant Colony: The Search
for Viability, Coherence, and Identity in Colonial Georgia” in Jack P. Greene,
ed., Imperatives, Behaviors & Identities: Essays in Early American Cultural History
(Charlottesville, VA, 1992), 113–42. On Maine, see John G. Reid, Acadia,
Maine, and New Scotland: Marginal Colonies in the Seventeenth Century (Toronto,
1981) and Maine, Charles II and Massachusetts: Governmental Relationships in Early
Northern New England (Portland, 1977). On New York, see Daniel J. Hulsebosch,
Constituting Empire: New York and the Transformation of Constitutionalism
in the Atlantic World, 1664–1830 (Chapel Hill, NC, 2005). On Rhode Island,
see Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and
the Empire (Cambridge, MA, 2004), and Sydney V. James, Sheila L. Skemp, and
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Bruce C. Daniels, eds., The Colonial Metamorphoses in Rhode Island: A Study of
Institutions in Change (Hanover, NH, 2000).Wesley Frank Craven’s The Southern
Colonies in the Seventeenth Century, 1607–1689 (Baton Rouge, LA, 1949) and The
Colonies in Transition, 1660–1713 (New York, 1968) are indispensable.
The dimensions of the relationship between the colonies and England have
been the subject of reinterpretation. Imperial school works such as Oliver Morton
Dickerson, American Colonial Government, 1696–1765 (Cleveland, 1912);
George A. Washburne, Imperial Control of the Administration of Justice in the
Thirteen American Colonies, 1684–1776 (New York, 1923); G. H. Guttridge,
The Colonial Policy of William III in America and the West Indies (Cambridge,
1922); and Lawrence A. Harper, The English Navigation Laws: A Seventeenth-
Century Experiment in Social Engineering (New York, 1939) remain useful. Books
on Anglo-American imperial relations appearing in the 1970s and 1980s,
often emphasizing a “center-peripheries” model, include the following: David
S. Lovejoy, The Glorious Revolution in America (1972; Middletown, CT, 1987);
James A. Henretta, “Salutary Neglect”: Colonial Administration Under the Duke of
Newcastle (Princeton, NJ, 1972); Philip S. Haffenden, New England in the English
Nation, 1689–1713 (Oxford, 1974); Richard Johnson, Adjustment to Empire: The
New England Colonies, 1675–1715 (New Brunswick, NJ, 1981); Jack M. Sosin,
English America and the Restoration Monarchy of Charles II: Transatlantic Politics,
Commerce, and Kinship (Lincoln, NE, 1980), English America and the Revolution
of 1688: Royal Administration and the Structure of Provincial Government (Lincoln,
NE, 1982), and English America and Imperial Inconstancy: The Rise of Provincial
Autonomy, 1696–1716 (Lincoln, NE, 1985); Stephen Botein, Early American
Law and Society (New York, 1983), ch. 4; Stephen Saunders Webb, 1676: The
End of American Independence (New York, 1984); Jack P. Greene, Peripheries and
Center; Robert M. Bliss, Revolution and Empire: English Politics and the American
Colonies in the Seventeenth Century (Manchester, 1990); and Alison Gilbert
Olson, Making the EmpireWork: London and American Interest Groups, 1690–1790
(Cambridge, MA, 1992). For recent work influenced by Atlantic history, see
Bilder, The Transatlantic Constitution (2004) and Hulsebosch, Constituting Empire
(2005).
On the governors, classics are Leonard Woods Labaree, Royal Government in
America: A Study of the British Colonial System Before 1783 (1930; New York,
1958; also contains excellent bibliography for primary sources); Evarts Boutell
Greene, The Provincial Governor in the English Colonies of North America (1898;
Gloucester, 1966); and J. F. Burns, Controversies Between Royal Governors and Their
Assemblies in the Northern American Colonies (1923; New York, 1969), chapters
1, 4–6. Stephen Saunders Webb, The Governors-General: The English Army and
the Definition of the Empire, 1561–1681 (Chapel Hill, NC, 1979), and Bernard
Bailyn, The Origins of American Politics (New York, 1968), ch. 2, are also helpful.
For instructions, see Leonard Woods Labaree, ed., Royal Instructions to British
Colonial Governors, 1670–1776, 2 vols. (New York, 1935); Charles M. Andrews,
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“List of Commissions, Instructions, and Additional Instructions Issued to the
Royal Governors and Others in America,” American Historical Association Annual
Report for the Year 1911 I (1913), 393–528. On correspondence, see Gertrude S.
Kimball, The Correspondence of the Colonial Governors of Rhode Island, 1723–1775,
2 vols. (Boston, 1902–1903); David Cressy, Coming Over: Migration and Communication
Between England and New England in the Seventeenth Century (Cambridge,
1987), ch. 9. Lists and bibliographies appear in David P. Henige, Colonial
Governors from the Fifteenth Century to the Present (Madison, 1970), and John W.
Raimo, Biographical Directory of American Colonial and Revolutionary Governors,
1607–1789 (Westport, 1980).
On assemblies, see Michael Kammen, Deputyes & Libertyes: The Origins of Representative
Government in Colonial America (New York, 1969), and the scholarship
of Jack P. Greene, including The Quest for Power: The Lower Houses of Assembly in
the Southern Royal Colonies, 1689–1776 (Chapel Hill, NC, 1963); Peripheries and
Center; Negotiated Authorities: Essays in Colonial Political and Constitutional History
(Charlottesville, 1994), particularly chapters 6–8; and Imperatives, Behaviors
& Identities: Essays in Early American Cultural History (Charlottesville, 1992).
Warren M. Billings’s A Little Parliament: The Virginia General Assembly in the
Seventeenth Century (Richmond, 2004) is an outstanding recent contribution. J.
M. Sosin, English America and Imperial Inconstancy and Mary Patterson Clarke,
Parliamentary Privilege in the American Colonies (1943; New York, 1971), ch. 1,
contain additional useful details and analysis. Additional relevant discussion
appears in Bruce C. Daniels, ed., Power and Status: Officeholding in Colonial
America (Middletown, CT, 1986), and Marchette Chute, The First Liberty, A
History of the Right to Vote in America, 1619–1850 (New York, 1969). On popular
sovereignty, see Edmund S. Morgan, Inventing the People: The Rise of Popular
Sovereignty in England and America (New York, 1988), chapters 2 and 8.
On the Privy Council, invaluable for organization, is Charles M. Andrews,
British Committees, Commissions, and Councils of Trade and Plantations, 1622–
1675 (Baltimore, 1908), and for names, John C. Sainty, Officials of the Board
of Trade, 1660–1870 (London, 1974). On the 1660s commissioners, see John
G. Reid, Maine, Charles II and Massachusetts, 54–123. On Edward Randolph,
see Michael G. Hall, Edward Randolph and the American Colonies, 1676–1703
(Chapel Hill, NC, 1960); Robert Noxon Toppan, ed., Edward Randolph, 7 vols.
(Boston, 1899–1909). On the review of legislation, Elmer Beecher Russell, The
Review of American Colonial Legislation by the King in Council (New York, 1915)
remains outstanding. On colonial revision, see Erwin C. Surrency, “Revision
of Colonial Laws,” American Journal of Legal History 9 (1965), 189–202. A list
of disallowed and confirmed acts is in the appendices of Acts of the Privy Council,
Colonial Series; additional discussion can be found in Charles M. Andrews,
ed., Reports of the Laws of Connecticut by Francis Fane (New Haven, 1915). Lists
of acts sent to English officials appear in Charles M. Andrews, “Lists of the
Journals and Acts of the Councils and Assemblies of the Thirteen Original
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Colonies . . . Preserved in the Public Record Office, London,” American Historical
Association Annual Report for the Year 1908 1 (1909), 399–509. Appeals
are discussed most recently in Bilder, The Transatlantic Constitution (2004) and
exhaustively in Joseph H. Smith, Appeals to the Privy Council from the American
Plantations (1950; New York, 1965) and “Administrative Control of the Courts
of the American Plantations,” Columbia Law Review 61 (1961), 1210–53 (also
in Essays in the History of Early American Law, 281–335). Two earlier articles
remain helpful: Harold D. Hazeltine, “Appeals from Colonial Courts to the
King in Council, with Especial Reference to Rhode Island,” American Historical
Association Annual Report of the Year 1894 (1896), 299–350, and Arthur Meier
Schlesinger, “Colonial Appeals to the Privy Council,” Political Science Quarterly
28 (1913), 279–97, 433–50. Sharon H. O’Connor is completing a forthcoming
publication that will contain the list of all colonial appeals and relevant
documentary information.
Attorney and Solicitor General opinions on colonial law appear in George
Chalmers, Opinions of Eminent Lawyers on Various Points of English Jurisprudence
Chiefly Concerning the Colonies, Fisheries, and Commerce of Great Britain (1814;
New York, 1971), and R. T. Barton, ed., Virginia Colonial Decisions: The Reports
by Sir John Randolph and by Edward Barradall of Decisions of the General Court
of Virginia, 1727–1741 (Boston, 1909), vol. 2, B1-B30 (1681–1726). English
decisions usually discussed with reference to early colonial law can be found in
multiple locations. Calvin’s Case (1608) appears in 7 Coke 1a (1608), English
Reports, vol. 77, 377. Craw v. Ramsey (1670) appears in [E. Vaughan], Reports
and Arguments in the Common Pleas (London, 1677), 274–76, English Reports,
vol. 124, 1072–85; The Reports of Sir Peyton Ventris (London, 1696), vol. 2, 1–
8, English Reports, vol. 86, 273–7. Blankard v. Galdy (1693) appears in Modern
Reports, vol. 4 (London, 1703), 215–26, English Reports, vol. 87, 356–9, 359–62;
William Salkeld, Reports . . . ([London], 1718), vol. 2, 411–2, English Reports,
vol. 91, 356–7; [Roger Comberbach], The Reports of Several Cases (London,
1724), 228–229, English Reports, vol. 90, 445; Reports of Cases Determined by
Holt (London, 1738), 341, English Reports, vol. 90, 1089. Dutton v. Howell
(1693) appears in Bartholomew Shower, Cases in Parliament (1698), 24–34,
English Reports, vol. 1, 17–24 and House of Lords Journal (1771), vol. 15, 353–4.
Smith v. Brown and Cooper (no date) appears in Salkeld, Reports, vol. 2, 666–7,
English Reports, vol. 91, 566–7; Reports of Cases determined by Holt, 495, English
Reports, vol. 90, 1172. The Memorandum of 9th August 1722 relating to the
Privy Council appeal determination was printed in Peere Williams, Reports,
vol. 2, 75–6 (London, 1740). An Essay upon the Government of the English Plantations
. . . (1701) (ESTC T033473; reprinted edition edited by Louis B.Wright;
San Marino, 1945) contains contemporaneous observations.
Older scholarship struggled with the precise application of Parliamentary
statutes and common law in the colonies. For examples, see Paul S. Reinsch,
English Common Law in the Early American Colonies (Madison, 1899); Julius
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Goebel, Jr., “King’s Law and Local Custom in Seventeenth Century New England,”
Columbia Law Review 31 (1931), 416–48 (also in Essays in the History of
Early American Law, 83–120); Richard B. Morris, Studies in the History of American
Law (New York, 1930), ch. 1; Robert Livingston Schuyler, Parliament and
the British Empire: Some Constitutional Controversies Concerning Imperial Legislative
Jurisdiction (New York, 1929); St. George Leakin Sioussat, “The Extension of
English Statutes to the Plantations,” Select Essays in Anglo-American Legal History
(Boston, 1907), vol. 1, 416–30 and The English Statutes in Maryland (Baltimore,
1903). Of particular value is Elizabeth Gaspar Brown, British Statutes in American
Law, 1776–1836 (Ann Arbor, 1964), 1–46. Charles M. Andrews, The
Connecticut Intestacy Law (New Haven, 1933; see also 1894 and 1907 versions)
has a fine, clear discussion of various views held by contemporaries regarding
the relationship between English law and colonial law. For Jack Greene’s
excellent work on colonial constitutionalism, see Jack P. Greene, “The Colonial
Origins of American Constitutionalism,” in Negotiated Authorities, 25–42, and
Peripheries and Center, chapters 1–4. More recent discussions with varied interpretations
appear in W. Hamilton Bryson, “The Prerogative of the Sovereign
in Virginia: Royal Law in a Republic,” Legal History Review 73 (2005), 371–84,
and “English Common Law in Virginia,” Journal of Legal History, 6 (1985),
249–56; James Hart and Richard J. Ross, “The Ancient Constitution in the
OldWorld and the New,” in Francis J. Bremer and Lynn A. Botelho, eds., The
Worlds of JohnWinthrop: Essays on England and New England, 1588–1649 (Boston,
2005), 237–89;William M. Offutt, “The Atlantic Rules: The Legalistic Turn
in Colonial British America,” in Elizabeth Mancke and Carole Shammas, eds.,
The Creation of the British Atlantic World (Baltimore, 2005), 160–81; Bilder,
The Transatlantic Constitution; Daniel S. Hulsebosch, “The Ancient Constitution
and the Expanding Empire: Sir Edward Coke’s British Jurisprudence,”
Law and History Review 21 (2003), 439–82, and Constituting Empire, chapters 1
and 2; and Ernest G. Mayo, “Rhode Island’s Reception of the Common Law,”
Suffolk University Law Review 31 (1998), 609–24. For early American discussion,
see Joseph Story, Commentaries on the Constitution of the United States (Boston,
1833), Book 1, and JamesWilson, Considerations on the Nature and the Extent of
the Legislative Authority of the British Parliament (Philadelphia, 1774).
Colonial publications of statute law are in John D. Cushing’s The Colony Laws
of North America Series (Wilmington, 1977). For session laws, general assembly
records and the numerous nineteenth-century colonial law collections should be
consulted. Two useful catalogues are The Charlemagne Tower Collection of American
Colonial Laws (1890; Littleton, 1990) and Russell Benedict, Illustrated Catalogue
of the Colony and State of New York and of the other Original Colonies and States,
Constituting the collection Made by Hon. Russell Benedict (1922; Union, 1998). The
Massachusetts Body of Liberties (1641) is in William H. Whitmore, ed., The
Colonial Laws of Massachusetts (Boston, 1890). For the Lawes and Libertyes (1648),
see Thomas G. Barnes, ed., The Book of the General Lawes and Libertyes Concerning
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the Inhabitants of the Massachusets (San Marino, 1975) and Max Farrand, ed.,
The Laws and Liberties (Cambridge, MA, 1929). A fascinating contemporary
compilation is An Abridgement of the Laws in Force and Use in Her Majesty’s
Plantations (London, 1704) (ESTC T137593).
On the printing of early laws, see David D. Hall, “The Chesapeake in the
Seventeenth Century” and “The Atlantic Economy in the Eighteenth Century,”
in Hugh Amory and David D. Hall, eds., A History of the Book in America: The
Colonial Book in the Atlantic World (Cambridge, MA, 2000), 55–82, 152–62.
Discussions of specific laws have focused on New England, including Daniel
R. Coquillette, “Radical Lawmakers in Colonial Massachusetts: The ‘Countenance
of Authorities’ and the Lawes and Libertyes,” The New England Quarterly
67 (1994), 179–206; G. B.Warden, “The Rhode Island Civil Code of 1647,” in
David D. Hall, John M. Murrin, and ThadW. Tate, eds., Saints&Revolutionaries:
Essays on Early American History (New York, 1984), 138–51; Richard B. Morris,
“Massachusetts and the Common Law: The Declaration of 1646,” American Historical
Review 31 (1926), 443–53 (also in Essays in the History of Early American
Law, 135–46); Rosezella Canty-Letsome, “JohnWinthrop’s Concept of Law in
17th Century New England, One Notion of Puritan Thinking,” Duquesne Law
Review 16 (1977), 331–57; G. B. Warden, “Law Reform in England and New
England, 1620 to 1660,”William & Mary Quarterly, 3d ser., 35 (1975), 668–90;
George T. Haskins, “Codification of the Law in Colonial Massachusetts:AStudy
in Comparative Law,” Indiana Law Journal 30 (1954), 1–17; Thorp L.Wolford,
“The Laws and Liberties of 1648: The First Code of Laws Enacted and Printed
in English America,” Boston University Law Review 28 (1948), 426–63 (also in
Essays in the History of Early American Law, 147–85); andWorthington C. Ford,
“Cotton’s ‘Moses his Judicials,’” Proceedings of the Massachusetts Historical Society,
2d ser., 16 (1902), 274–84. For laws in other places, see DavidT. Konig, “‘Dale’s
Laws’ and the Non-Common Law Origins of Criminal Justice in Virginia,”
American Journal of Legal History 26 (1982), 354–75, and Caroline Robbins,
“Laws and Governments Proposed for West New Jersey and Pennsylvania,
1676–1683, Pennsylvania Magazine of History and Biography 105 (1981),
373–92.
For a fine recent discussion of legal literates and the shift toward the common
law, see William M. Offutt, “The Atlantic Rules,” in The Creation of the
British AtlanticWorld, 160–181. General discussions of early legal practitioners
appear in CharlesWarren, History of the American Bar (Boston, 1911) and Anton-
Hermann Chroust, The Rise of the Legal Profession in America, 2 vols. (Norman,
OK, 1965). Definitional problems are discussed in Mary Sarah Bilder, “The Lost
Lawyers: Early American Legal Literates and Transatlantic Legal Culture,” Yale
Journal of Law and Humanities 11 (1999), 47–117. The classic article arguing
for anglicization of the bar is John M. Murrin, “The Legal Transformation:
The Bench and Bar of Eighteenth-Century Massachusetts,” in Stanley N.
Katz, ed., Colonial America: Essays in Politics and Social Development (Boston,
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612 Bibliographic Essays
1971), 415–49. For interesting biographies, see Angela Fernandez, “Record-
Keeping and Other Troublemaking: Thomas Lechford and Law Reform in
Colonial Massachusetts,” Law and History Review 23 (2005), 235–77; Thomas
G. Barnes, “Thomas Lechford and the Earliest Lawyering in Massachusetts,
1638–1641,” Law in Colonial Massachusetts, 1630–1800, 3–38; and Barbara A.
Black, “Nathaniel Byfield, 1653–1733,” Law in Colonial Massachusetts, 1630–
1800, 57–106. Colony-specific accounts include Hoyt P. Canady, Gentlemen of
the Bar: Lawyers in Colonial South Carolina (New York, 1987); A. G. Roeber,
Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture,
1680–1810 (Chapel Hill, 1981); John E. Douglass, “Between Pettifoggers and
Professionals: Pleaders and Practitioners and the Beginnings of The Legal Profession
in Colonial Maryland, 1634–1731,” American Journal of Legal History
39 (1995), 359–84; Alan F. Day, “Lawyers in Colonial Maryland, 1660–1715,”
American Journal of Legal History 17 (1973), 145–65; Paul M. Hamlin, Legal
Education in Colonial New York (1939; New York, 1970); and NeilW. Allen, Jr.,
“Law and Authority to the Eastward: Maine Courts, Magistrates, and Lawyers,
1690–1730,” in Law in Colonial Massachusetts, 273–312. For discussion of
female attorneys, see Paul D. Hamlin and Charles E. Baker, Supreme Court of
Judicature of the Province of New York, 1691–1704 (New York, 1952), vol. 1,
108–110; Louise Green Carr, “Margaret Brent: A Brief History” (available
online at the Maryland Archives); and Mary E.W. Ramey, Chronicles of Mistress
Margaret Brent (s.l., 1915). Lists of English-trained colonial lawyers appear in
E. Alfred Jones, American Members of the Inns of Court (London, 1924). On the
comparison with English barristers, see David Lemmings, Professors of the Law:
Barristers and English Legal Culture in the Eighteenth Century (Oxford, 2000),
225–47. On notaries, see John E. Seth, “Notaries in the American Colonies,”
John Marshall Law Review 32 (1999), 863–86. A contemporary account appears
in Robert Beverley, History and the Present State of Virginia (London, 1705) (ESTC
T071491).
A number of accounts of lawyers’ libraries exist, including Alfred Brophy,
“‘Ingenium est Fateri per quos profeceris:’ Francis Daniel Pastorius’ Young
Country Clerk’s Collection and Anglo-American Legal Literature, 1682–1716,”
University of Chicago Law School Roundtable 3 (1996), 637–734; Lawrence B.
Custer, “William Cummings: A Colonial Lawyer and His Library,” Journal of
Southern Legal History 3 (1994), 221–40; William Hamilton Bryson, Census
of Law Books in Colonial Virginia (Charlottesville, 1978); Herbert A. Johnson,
Imported Eighteenth-Century Law Treatises in American Libraries, 1700–1799
(Knoxville, 1978); and Edwin Wolf, The Library of James Logan of Philadelphia,
1674–1751 (Philadelphia, 1971). On the use of libraries, see Michael H.
Hoeflich, “The Lawyer as Pragmatic Reader: The History of Legal Common-
Placing,” Arkansas Law Review 55 (2002), 87–122. For a lawyer’s notes, see
Thomas Lechford, Note-book Kept by Thomas Lechford, Esq., Lawyer, in Boston,
Massachusetts Bay, from June 27, 1638, to July 29, 1641 (Cambridge, 1885). For
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Bibliographic Essays 613
printed American legal materials, invaluable is Morris L. Cohen’s Bibliography
of Early American Law, 6 vols. (Buffalo, 1998). General discussions appear in
Erwin C. Surrency, A History of American Law Publishing (New York, 1990)
and Morris L. Cohen, “Legal Literature in Colonial Massachusetts,” in Law in
Colonial Massachusetts, 243–272.
On courts, Massachusetts and Virginia again dominate the scholarship. On
Massachusetts, see Barbara Aronstein Black, “The Concept of a Supreme Court:
Massachusetts Bay, 1630–1686,” The History of the Law in Massachusetts, 43–79
and The Judicial Power and the General Court in Early Massachusetts, 1634–1686,
Ph.D. thesis, Yale University, 1975; Mark DeWolfe Howe & Louis F. Eaton,
Jr., “The Supreme Judicial Power in the Colony of Massachusetts Bay,” New
England Quarterly 20 (1947), 291–316; and Zechariah Chafee, Jr., “Colonial
Courts and the Common Law,” Massachusetts Historical Society Proceedings 68
(1952), 132–59 (also in Essays in the History of Early American Law, 53–82). On
Virginia courts, see Philip Alexander Bruce, Institutional History of Virginia in the
Seventeenth Century (1910; Gloucester, 1964), vol. I, and Warren M. Billings,
“Justices, Books, Laws, and Courts in Seventeenth-Century Virginia,” Law
Library Journal 85 (1993), 277–96. In general, see Jack M. Sosin, The Aristocracy
of the Long Robe: The Origins of Judicial Review in America (New York, 1989), and
Erwin C. Surrency, “The Courts in the American Colonies,” American Journal of
Legal History 11 (1967), 253–76. Numerous older institutional accounts exist
for most colonies, often in “Bench and Bar” volumes. For an excellent study of
late seventeenth-century litigation, see Alfred Brophy, “‘For the Preservation of
the King’s Peace and Justice’: Community and English Law in Sussex County,
Pennsylvania, 1682–1696,” American Journal of Legal History 40 (1996), 167–
212. For contemporaneous accounts of courts, see Erwin C. Surrency, “Report
on Court Procedures in the Colonies—1700,” American Journal of Legal History
9 (1965), 69–83, 167–78, 234–46. For a discussion of the work of a justice
of the peace, see Russell K. Osgood, “John Clark, Esq., Justice of the Peace,
1667–1728,” Law in Colonial Massachusetts, 107–52.
Court records for almost every level and type of colonial court exist; however,
at present, there is no comprehensive guide to published and manuscript
colonial court records. Such a bibliography would be of great assistance to
the scholarship. One excellent regional example is Diane Rapaport, New England
Court Records: A Research Guide for Genealogists and Historians (Burlington,
MA, 2006), which offers a guide to New England legal materials, including
microform and online collections. Another recent work, Michael Chiorazzi and
Marguerite Most, eds., Prestatehood Legal Materials: A Fifty-State Research Guide
(New York, 2006), contains descriptive chapters on legal materials available for
each state. Richard B. Morris, Early American Court Records: A Publication Program
(New York, 1941) provides a helpful, albeit old, overview of unpublished
materials. Older works referring to published court records include Richard
B. Morris, “Bibliographical Essay,” Studies in the History of Early American Law,
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259–73; William Jeffrey, Jr., Early New England Court Records: A Bibliography
of Published Materials (Cambridge, MA, 1954); andWilliam Jeffrey, Jr., “Early
American Court Records – A Bibliography of Printed Materials: The Middle
Colonies,” University of Cincinnati Law Review 39 (1970), 685–710. For a good
explanation of records, see Michael S. Hindus, “A Guide to the Court Records
of Early Massachusetts,” in Law in Colonial Massachusetts, 519–40. There are few
known early manuscript reports of colonial courts. For a discussion of early Virginia
manuscript court reports, seeW. Hamilton Bryson, “Virginia Manuscript
Law Reports,” Law Library Journal 82 (1990), 305–11.
On colonial criminal law in the courts, see Mark D. Cahn, “Punishment, Discretion,
and the Codification of Prescribed Penalties in Colonial Massachusetts,”
American Journal of Legal History 33 (1989), 107–36; John M. Murrin, “Magistrates,
Sinners, and a Precarious Liberty: Trial by Jury in Seventeenth-Century
New England,” Saints & Revolutionaries, 152–206; Gail Sussman Marcus, “Due
Execution of the ‘Generall Rules of Righteousness’”: Criminal Procedure in
New Haven Town and Colony, 1638–1658,” Saints & Revolutionaries, 99–137;
Kathryn Preyer, “Penal Measures in the American Colonies: An Overview,”
American Journal of Legal History 26 (1982), 326–53; Douglas Greenberg,
“Crime, Law Enforcement, and Social Control in Colonial America, American
Journal of Legal History 26 (1982), 293–325; Arthur P. Scott, Criminal Law in
Colonial Virginia (Chicago, 1930); and Oliver Perry Chitwood, Justice in Colonial
Virginia (Baltimore, 1905).
On equity, see Peter Charles Hoffer, The Law’s Conscience: Equitable Constitutionalism
in America (Chapel Hill, 1990); Stanley N. Katz, “The Politics of
Law in Colonial America: Controversies over Chancery Courts and Equity Law
in the Eighteenth Century,” Perspectives in American History 5 (1971), 257–84;
William J. Curran, “The Struggle for Equity Jurisdiction in Massachusetts,”
Boston University Law Review 31 (1951), 269–96; Spencer R. Liverant andWalter
H. Hitchler, “A History of Equity in Pennsylvania,” Dickinson Law Review 37
(1933), 156–84; and Solon Wilson, “Courts of Chancery in America – Colonial
Period,” American Law Review 18 (1884), 226–55 (also in Select Essays in
Anglo-American Legal History, Boston, 1908, vol. II, p. 779).
chapter 4: legal communications and imperial governance
richard j. ross
Historians of the early modern English, French, and Spanish empires have long
discussed how distance and slow, irregular communications affected metropolitan
oversight of NewWorld colonies. They commonly treated communications
as one factor among many explaining the character of imperial governance and
colonial society. In the past fifteen years, some scholars have made communications
the primary subject of study. They have traced the routes through
which messages passed; asked how the methods and personnel of information
exchange influence the creation, framing, and dissemination of knowledge;
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studied in what ways empires encouraged or relied on particular communications
practices; and explored how trans-Atlantic information systems affected
the distribution of power, wealth, and resources. These historians have tended
to emphasize the interrelationship of administrative, economic, and social
networks in early modern communications. Distinguished work in this vein
includes, for English America, David Cressy, Coming Over: Migration and Communication
Between England and New England in the Seventeenth Century (New York,
1987); Richard D. Brown, Knowledge is Power: The Diffusion of Information in
Early America, 1700–1865 (New York, 1989); Richard D. Brown, The Strength
of a People: The Idea of an Informed Citizenry in America, 1650–1870 (Chapel
Hill, 1996); and especially, Ian K. Steele, The English Atlantic, 1675–1740:
An Exploration of Communication and Community (New York, 1986); for French
America, Kenneth J. Banks, Chasing Empire Across the Sea: Communications and
the State in the French Atlantic, 1713–1763 (Montreal, 2002); and for Spanish
America, Tamar Herzog, Ritos de Control, Pr´acticas de Negociaci´on: Pesquisas,
Visitas y Residencias y las Relaciones entre Quito y Madrid (1650–1750), in Jose
Andres-Gallego, ed., Nuevas Aportaciones a la Historia Jur´ıdica de Iberoam´erica
(Madrid, 2000 [published on CD-ROM]) and Upholding Justice: Society, State,
and the Penal System in Quito (1650–1750) (Ann Arbor, 2004). For an exploration
of these themes in the context of the “second British empire,” see C. A.
Bayly, Empire and Information: Intelligence Gathering and Social Communication in
India, 1780–1870 (Cambridge, 1996). David Nelken, ed., Law as Communication
(Brookfield, 1996) offers a list of questions that historians can use as a
starting point to investigate the relationship between law and communications
in past societies.
Scholarship on communications in the early modern English empire has
typically treated law as one of several subjects, but has not focused on it per
se. It has also concentrated on providing a rich account of the English empire
at the cost of downplaying comparative questions. To reconstruct through
comparative inquiry how the strategies and practices of legal communications
affected England’s governance of its North American colonies, one must look
for clues in works written for other purposes. Histories of the English empire’s
administration contain much “raw material.” Standard works that put administrative
and jurisdictional structures at the center include the following: A.
Berriedale Keith, Constitutional History of the First British Empire (Oxford, 1930);
LeonardW. Labaree, Royal Government in America (New Haven, 1930); Herbert
L. Osgood, The American Colonies in the Seventeenth Century, 3 vols. (New York,
1904–07); Herbert L. Osgood, The American Colonies in the Eighteenth Century, 4
vols. (New York, 1924–25); and, especially, Charles M. Andrews, The Colonial
Period of American History, 4 vols. (New Haven, 1934–38).
Of course, legal communications traveled across the Atlantic through more
than the formal institutional and administrative structures of the empire that
interested the early imperial historians. From the 1950s onward, scholars
have expanded the subject matter of imperial history by broadening their
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understanding of what ties an empire together and makes it robust. Toward
this end, they examined the economic, social, intellectual, and political networks
that grew up around the imperial apparatus and that helped integrate
the English Atlantic and influence the operation of imperial policies. They
also explored how the English empire altered social and religious arrangements,
conventions of governing, and identities within colonial society and
how it enlisted the cooperation of local elites by promoting their interests and
validating their status. The building of the empire came to resemble not so
much the imposition of administrative oversight and trade regulation by the
metropolis as a multi-sided process of negotiation, recruitment, and cultural
adjustment. This reorientation of imperial history broadened our understanding
of the channels through which legal communications passed (emphasizing
the importance of interest groups, lobbying, trans-Atlantic political alliances,
and social networks). And it heightened awareness of the indirect effects of
legal communications by demonstrating the value of legal information as a
bargaining chip in negotiations, as a marker of elite status, and as a resource
in forming political partnerships. Distinguished work that highlights negotiation,
network formation, and the social foundation of empire – and that in
the process offers glimpses of the multiple, informal pathways of legal communications
in the early modern Anglo-American world – includes Bernard
Bailyn, The Origins of American Politics (New York, 1968); Christine Daniels
and Michael V. Kennedy, eds., Negotiated Empires: Centers and Peripheries in the
Americas, 1500–1820 (New York, 2002); Richard R. Johnson, Adjustment to
Empire: The New England Colonies, 1675–1715 (Leicester, 1981); Stanley N.
Katz, Newcastle’s New York: Anglo-American Politics, 1732–1753 (Cambridge,
MA, 1968); Alison Gilbert Olson, Anglo-American Politics, 1660–1775: The
Relationship Between Parties in England and Colonial America (New York, 1973);
Alison Gilbert Olson, Making the Empire Work: London and American Interest
Groups, 1690–1790 (Cambridge, MA, 1992); Jack P. Greene, Peripheries and
Center: Constitutional Development in the Extended Polities of the British Empire and
the United States, 1607–1788 (Athens, GA, 1987); Jack P. Greene, Negotiated
Authorities: Essays in Colonial Political and Constitutional History (Charlottesville,
1994); and Michael G. Kammen,ARope of Sand: The Colonial Agents, British Politics,
and the American Revolution (Ithaca, NY, 1968). The changing orientation
of imperial history can be seen by comparing vol. I of J. Holland Rose et al., The
Cambridge History of the British Empire (Cambridge, 1929) to the recent Oxford
History of the British Empire, especially vol. I (Nicholas Canny, ed., The Origins
of Empire: British Overseas Enterprise to the Close of the Seventeenth Century [Oxford,
1998]); vol. II (P. J. Marshall, ed., The Eighteenth Century [Oxford, 2001]); and
vol. V (Robin W. Winks, ed., Historiography [Oxford, 2001]).
Certain channels or clearinghouses were especially important for legal communications
in the English empire and deserve particular attention. On the
colonial agents, see Beverly W. Bond, Jr., “The Colonial Agent as a Popular
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Representative,” Political Science Quarterly 35 (1920), 372–92; James J. Burns,
The Colonial Agents of New England (Washington, DC, 1935); Kammen, Rope
of Sand; and Ella Lonn, The Colonial Agents of the Southern Colonies (Chapel Hill,
1945). On the Lords of Trade and Board of Trade, see Arthur Herbert Basye,
The Lords Commissioners of Trade and Plantations, Commonly Known as the Board
of Trade: 1748–1782 (New Haven, 1925); Ralph Paul Bieber, The Lords of
Trade and Plantations, 1675–1696 (Allentown, 1919); Oliver Morton Dickerson,
American Colonial Government, 1696–1765: A Study of the British Board of
Trade in its Relation to the American Colonies: Political, Industrial, Administrative
(Cleveland, 1912); and Ian K. Steele, Politics of Colonial Policy: The Board of
Trade in Colonial Administration, 1696–1720 (Oxford, 1968). On the customs
service, see Thomas C. Barrow, Trade and Empire: The British Customs Service in
Colonial America, 1660–1775 (Cambridge, MA, 1967). On judicial appeals, see
Joseph H. Smith, Appeals to the Privy Council from the American Plantations (New
York, 1950), and Mary Sarah Bilder, The Transatlantic Constitution: Colonial
Legal Culture and the Empire (Cambridge, MA, 2004). On the review of colonial
legislation, see Elmer B. Russell, The Review of American Colonial Legislation
by the King in Council (New York, 1915), and Joseph H. Smith, “Administrative
Control of the Courts of the American Plantations,” in David Flaherty,
ed., Essays in the History of Early American Law (Chapel Hill, 1969), 281–335.
On the vice-admiralty courts, see Charles M. Andrews, “Introduction: Vice-
Admiralty Courts in the Colonies,” in Dorothy S. Towle, ed., The Records of theVice-Admiralty Court of Rhode Island, 1716–1752 (Washington, DC, 1936), 1–
79, and Carl Ubbelohde, The Vice-Admiralty Courts and the American Revolution
(Chapel Hill, 1960).
By the 1950s and 1960s, scholarship on the Spanish empire, as on the English
empire, was moving beyond its customary focus on the institutions and personnel
of imperial and local government. Later work pursued a social history
of empire by examining the recruitment and interests of American officeholders,
local elites, and Indian leaders and by exploring informal mechanisms for
exercising power. Increased attention to the flexibility and negotiated quality
of the Spanish empire led, as with the English empire, toward a greater curiosity
about how information circulated among the metropolis, administrative
institutions in the New World, and colonial society. Though this scholarship
was typically not conceptualized as a study of legal communications per se, the
importance in the Spanish empire of the crown bureaucracy and mixed judicialadministrative
tribunals such as the audiencias meant that insights about legal
communications could be extracted out of work written for other purposes.
Useful general studies include the following: Rafael Altamira, Autonom´ıa y
Descentralizaci´on Legislativa en el R´egimen Colonial Espa˜nol: Legislaci´on Metropolitana
y Legislaci´on Propiamente Indiana (Siglos XVI a XVIII) (Coimbra, 1945);
Peter Bakewell, “Conquest after the Conquest: The Rise of Spanish Domination
in America,” in Richard L. Kagan and Geoffrey Parker, eds., Spain, Europe and the
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AtlanticWorld: Essays in Honour of John H. Elliott (Cambridge, 1995), 296–315;
WoodrowW. Borah, “Representative Institutions in the Spanish Empire in the
Sixteenth Century: The New World,” The Americans 12 (1956), 246–57; D.
A. Brading, “Bourbon Spain and its American Empire,” in Leslie Bethell, ed.,
The Cambridge History of Latin America (Cambridge, 1984), I, 389–439; J. H.
Elliott, Imperial Spain, 1469–1716 (New York, 1990); J. H. Elliott, “Spain and
America before 1700,” in Leslie Bethell, ed., Colonial Spanish America (Cambridge,
1987), 59–111; J. H. Elliott, “Spain and its Empire in the Sixteenth
and Seventeenth Century,” in Spain and its World, 1500–1700: Selected Essays
(New Haven, 1989), 7–26; Charles Gibson, Spain in America (New York, 1966);
Mario G´ongora, Studies in the Colonial History of Spanish America (Cambridge,
1975); Clarence H. Haring, The Spanish Empire in America (New York, 1963);
Ricardo Levene, Introduccion a La Historia del Derecho Indiano, in Obras de Ricardo
Levene, vol. III (Buenos Aires, 1962); M. C. Mirow, Latin American Law: A
History of Private Law and Institutions in Spanish America (Austin, 2004); Frank
Jay Moreno, “The Spanish Colonial System: A Functional Approach,” Western
Political Quarterly 20 (1967): 308–20; Jose Maria Ots y Capdequi, Historia del
Derecho Espa˜nol en America y del Derecho Indiano (Madrid, 1967); John Leddy
Phelan, The Kingdom of Quito in the Seventeenth Century: Bureaucratic Politics in the
Spanish Empire (Madison, 1967); John Leddy Phelan, “Authority and Flexibility
in the Spanish Imperial Bureaucracy,” Administrative Science Quarterly 5 (1960),
47–65; Horst Pietschmann, “Actores Locales y Poder Central: La Herencia
Colonial y el Caso de M´exico,” in Hans-Joachim Konig and Marianne Wiesebron,
eds., Nation-Building in Nineteenth-Century Latin America: Dilemmas and
Conflicts (Leiden, 1998), 257–80; and Carmelo Vi ˜ nas Mey, El R´egimen Jur´ıdico y
la Responsabilidad en la Am´erica Indiana (2nd ed., Mexico City, 1993).
The following works examine institutions or practices of particular importance
for a history of legal communications: Lauren Benton, “Making Order
Out of Trouble: Jurisdictional Politics in the Spanish Colonial Borderlands,”
Law and Social Inquiry 26 (2001), 373–401; Mark A. Burkholder and D. S.
Chandler, From Impotence to Authority: The Spanish Crown and the American Audiencias,
1687–1808 (Columbia, 1977); Tamar Herzog, Ritos de Control, Pr´acticas
de Negociaci´on and Upholding Justice; John Preston Moore, The Cabildo in Peru
Under the Hapsburgs (Durham, 1954); J. H. Parry, The Audiencia of New Galicia
in the Sixteenth Century: A Study in Spanish Colonial Government (Cambridge,
1948); and Victor Tau Anzo´ategui, “La Ley ‘Se Obedece pero no se Cumple’: En
Torno a la Suplicaci´on de las Leyes en el Derecho Indiano,” in La Ley en Am´erica
Hispana. Del Descubrimiento a la Emancipaci´on (Buenos Aires, 1985), 69–142.
On the legal culture of Spanish America, see Javier Barrientos Grandon, La
Cultura Jur´ıdica en la Nueva Espa˜na (Mexico City, 1993); Charles R. Cutter,
The Legal Culture of Northern New Spain, 1700–1810 (Albuquerque, 1995);
Tamar Herzog, “Sobre la Cultura Jur´ıdica en la Am´erica Colonial (Siglos XVI–
XVIII),” Anuario de Historia del Derecho Espa˜nol 65 (1995), 903–11; and Eduardo
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Martir´e, “La Idea de Justicia y la Organizacion Judicial Indiana,” Lecciones y
Ensayos: Facultad de Derecho y Ciencias Sociales 37 (1968), 45–62.
On the Spanish American legal system’s interaction with Indians, the following
proved particularly valuable:Woodrow Borah, Justice by Insurance: The General
Indian Court of Colonial Mexico and the Legal Aides of the Half-Real (Berkeley,
1983); Charles R. Cutter, The Protector de Indios in Colonial New Mexico, 1659–
1821 (Albuquerque, 1986); Susan Kellogg, Law and the Transformation of Aztec
Culture, 1500–1700 (Norman, 1995); and Steve J. Stern, Peru’s Indian Peoples
and the Challenge of Spanish Conquest: Huamanga to 1640, 2nd ed. (Madison,
1993).
Overall, my analysis is indebted to comparative work on the differing colonial
states that England and Spain set up in the NewWorld. J. H. Elliott’s new
and magisterial study, Empires of the AtlanticWorld: Britain and Spain in America
1492–1830 (New Haven, 2006), will doubtless become indispensable, but see
also his earlier Britain and Spain in America: Colonists and Colonized (Reading,
1994) and “Empire and State in British and Spanish America,” in Serge Gruzinski
and NathanWachtel, eds., Le Nouveau Monde – Mondes Nouveaux: L’Experience
Americaine (Paris, 1996), 365–82. See also James Lang, Conquest and Commerce:
Spain and England in the Americas (New York, 1975), and Anthony McFarlane,
The British in the Americas, 1480–1815 (London, 1994).
chapter 5: regionalism in early american law
david thomas konig
Regional awareness has been embedded in the writing of early American history,
beginning with its first chroniclers. On the extent of the “envy” between
the Chesapeake and New England that Captain John Smith lamented in 1624
and that endured as what John Adams called the “damnable Rivalry between
Virginia, and Massachusetts” in 1813, see David Thomas Konig, “The Virgin
and the Virgin’s Sister: Virginia, Massachusetts, and the Contested Legacy of
Colonial Law,” in Russell Osgood, ed., The History of the Law in Massachusetts:
The Supreme Judicial Court 1692–1992 (Boston, 1992). Awareness of region
has informed – indeed, has driven – historical studies of early American law,
both normative and descriptive, even if not framed within explicitly declared
“regional” or “sectional” interpretive models. It was quite appropriate, therefore,
that the legal realist Felix Frankfurter was asked to write a short “Foreward”
to Merrill Jensen’s collection of essays on Regionalism in America (Madison,
1951). Sympathizing with the way theWisconsin School emphasized the material
forces guiding historical development, Frankfurter applied the formula to
cite a combination of regionally specific forces that enabled a continental nation
to “be governed by organs that fairly represent its disciplined will and at the
same time adequately evoke the diverse civilized potentialities of its people.”
Frankfurter was aware that the relationship of law and regionalism was not
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always obvious. “To be sure,” he wrote, “the social, economic, and cultural
influences and needs comprised by regionalism do not appear in litigation
with candid impact. But they are there,” he insisted, “if only at times in the
interstices of legal records.”
Frankfurter had identified the powerful influence of regional forces in the
narrative of American legal development, but the converse is also true: law
has had a powerful impact on the way Americans thought of their societies, as
well as on the ways that historians have understood that past. Perhaps because
legal records comprise such a significant proportion of archival materials that
survive from the colonial period, even those scholars we would not regard as
legal historians have relied on legal sources to examine the American past,
unavoidably framing their narratives within the parameters of legal institutions.
As a result, the teaching of early American history has always applied
the regional particularities of institutional legal and constitutional forms as
a way to organize a complex narrative embracing many different enterprises
undertaken across two centuries, even if scholars did not generate interpretive
paradigms involving law or legal institutions. The availability of a master
narrative that distinguished among corporate, proprietary, and royal colonies
provided an uncomplicated structure of organizational coherence. For better
or worse, this model inescapably forced the colonies onto a Procrustean bed
made of the three different types of charter forms and defined the nature of
the political conflicts of their earliest years, as seen in Herbert L. Osgood’s
three-volume survey, The American Colonies in the Seventeenth Century (New York,
1904). Because these three types of government roughly corresponded to the
three general regions of settlement, they produced an implicitly regionalized
framework for the earliest studies of early American law, as Osgood devoted
separate chapters to legal developments in each of the colonial archetypes.
Osgood’s history appeared at the turn of the twentieth century and followed
a long interpretive tradition dominated by the rivalry of North and South that
culminated in the Civil War, but it coincided with several scholarly trends
that combined to regionalize the study of early American law along new and
different lines. Even if the schools they produced had little else in common,
they left an imprint that has framed a regionally pluralistic paradigm that has
dominated the writing of colonial legal history since the turn of the twentieth
century. The Wisconsin School of historians was deeply influenced by
the work of that state university’s most famous historian, Frederick Jackson
Turner, and his 1893 paper on “The Significance of the Frontier in American
History,” published in his book The Frontier in American History (New York,
1920). Often overlooked, however, is his less well known and posthumously
published collection of essays, The Significance of Sections in American History
(New York, 1932), in which he acknowledged “the interaction of the various
migrating stocks, each in its particular geographic province.” Though he left
a deep and lasting legacy among legal scholars of the nineteenth century at the
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University ofWisconsin Law School, in his lifetime Turner produced few disciples
who devoted their work to colonial legal history, though Paul Reinsch was
an exception, notable for the boldness of his thesis on English Common Law in
the Early American Colonies (Madison, 1899). His book presents three chapters –
“New England,” The Middle Colonies,” and “The Southern Colonies” – with
a conclusion that reiterated his thesis that the common law in the colonies was
“rudimentary and incomplete,” shaped by colonial regionally specific codification
that exemplified regional impulses. Reinsch’s overstated insistence on the
frontier-driven simplification of English law in the colonies has been subjected
to much revision by other scholars (as has Turner’s concept of “frontier” itself ).
However, his Turnerian environmental determinism that rejected the cultural
continuity of English law also helped dissolve the force of a monolithic legal
and cultural hegemony over numerous expanding settlements, a process that
allowed them to follow their own regional legal course.
Though neither Turnerian nor focused on early America, more recent studies
examine the role played by the process of migration in shaping political
and legal change and offer their own analytical insights: Andrew Cayton and
Peter Onuf, eds., The Midwest and the Nation: Rethinking the History of an American
Region (Bloomington, 1990) describe the processes at work in migration,
whereas John Phillip Reid provides a way of engaging the basics of frontier
legal discourses in “The Layers of Western Legal History,” in John McLaren,
Hamar Foster, and Chet Orloff, eds., Law of the Elephant, Law of the Beaver:
Essays in the Legal History of the North American West (Regina, 1992), 23–71.
Justice Frankfurter’s sympathy for the implications of theWisconsin School
reflected his affinity for the legal realism that supplied additional intellectual
support for a regional perspective on law. Legal realism, with its opposition to
legal formalism and its skepticism about the existence of commonly honored
legal principles, viewed law as socially constructed (and, a fortiori, as judicially
constructed). The greater the variety of social forms, the greater would be the
variety of legal institutions and principles. Frankfurter spoke for a generation
of jurists who saw the connection of law and social policy and who agreed with
the observation of Oliver Wendell Holmes, Jr., in The Common Law (Boston,
1881), that “the life of the law has not been logic; it has been experience.”
Holmes’s “felt necessities of the time” varied according to social pressures, and
legal history would reflect them too.
A third trend among historians in the early twentieth century stands as an
unlikely ally of the frontier scholars or the legal realists. As the nineteenth century
came to a close, historians were turning their attention to the shared traditions
of Britain and America. The imperial school that they represented testified
to the centrality of law in the history and identity of both nations. The United
States and the United Kingdom drew together diplomatically, and appreciation
of their common history of legal and political development – characterized by
the rise of powerful national political and economic institutions – reinforced
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the nationalizing legalism that John Marshall, Tapping Reeve, James Kent, and
Joseph Story had tried to spread through opinions, treatises, and law lectures.
Efforts to subordinate state law to federal law through constitutional interpretation
was one method, but less obvious were efforts to assert and establish a
commercial law that would erase the diversity of state law on the subject –
Kent was speaking for others when he stated, “I shall not much care what
the law is in Vermont or Delaware, or Rhode Island. . . . I shall assume what I
have to say to be the law of every state.” John H. Langbein throws light on
Reeve’s efforts in “Blackstone, Litchfield, and Yale: The Founding of the Yale
Law School,” in Anthony T. Kronman, ed., The History of the Yale Law School:
The Tercentenary Lectures (New Haven, 2004), 17–52. On efforts to achieve a
republicanized “American” system of law consistent with the broader aspirations
of the Revolution, see David Konig, “Jurisprudence and Social Policy in
the New Republic,” in Konig, ed., Devising Liberty: Creating and Preserving the
Conditions of Freedom in the New American Republic (Stanford, 1995).
Even so, politics in the United States had not yet achieved the national,
centralized focus that characterized Britain’s (nor has it done so yet, for that
matter). In yet another of the ironies that characterize American history, the
South lost the Civil War, but has managed to keep alive a powerful sectional
identity in law. That diversity has been central to Southern identity and is
nowhere better expressed than in John C. Calhoun’s antebellum taunt that
“England is a nation, but the United States are not a nation.” Despite efforts of
revisionist constitutional historians in the later twentieth century (especially
after the New Deal revolution) to show that a nationalizing federal judiciary
successfully imposed central authority over regional diversity, the reality of
judicial administration after the CivilWar still reflected, in no small measure,
the contest of Northern political goals and the South’s efforts to resist racial
desegregation. St. GeorgeTucker had confessed as much in his long examination
“Of the Unwritten, or Common Law of England; And Its Introduction into,
and Authority Within the United States,” which appeared as “Appendix E”
to the first volume of his Blackstone’s Commentaries: With Notes of Reference, to
the Constitution and Laws, of the Federal Government of the United States; And
of the Commonwealth of Virginia, 5 vols. (Philadelphia, 1803). It is more easily
accessible in a modern edition as included with Tucker’sAView of the Constitution
of the United States: With Selected Writings, ed. Clyde N. Wilson (Indianapolis,
1999), 313–70, at 321.
Historians remained acutely aware of the realities of regional variation, especially
those embedded in the transplanted cultures of the first two centuries of
American history, long before the challenges of the modern nation-state. When
Charles McLean Andrews conceptualized his monumental survey of The Colonial
Period of American History (New Haven, 1934–38), of which he completed
only four of a longer, projected multivolume series, he devoted the first three
volumes to regional development. This decision is not surprising in view of the
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fact that Andrews had begun his career as a medieval legal historian studying
the most local of legal institutions, the manor. Research into local history by
medieval historians had a deep impact on legal scholars. George Lee Haskins,
son of the great Yale medievalist Charles Homer Haskins, brought his deep
appreciation of the Middle Ages to his writing of early American legal history,
which was evident in his many articles on the particularities of New England
law; his insights were brought together in his classic, Law and Authority in
Early Massachusetts: A Study in Tradition and Design (New York, 1960). And at
Columbia University, law professor Julius G. Goebel, Jr., wrote his classic and
seminal essay, “King’s Law and Local Custom in Seventeenth-Century New
England, Columbia Law Review 31 (1931), 416–48. Forty years later, in the
Oliver Wendell Holmes Devise History of the Supreme Court of the United States,
vol. I: Antecedents and Beginnings to 1801 (New York, 1971), he demonstrated
again the way the “l(fā)egacy of the Middle Ages” was imprinted on the transmission
of law from the Old World to the New, with the “heterogeneous body of
local law from the backwaters of the mainstream of the common law.”
In planning subsequent volumes in his meditation, “On theWriting of Colonial
History,” William and Mary Quarterly, 3rd ser., 1 (1944), 27–48, Andrews
described how his planned (though never written) subsequent volumes would
synthesize social and economic factors, but he was forced to return to regional
illustrations and comparisons to make sense of the larger picture he sought to
paint. Each of the first three completed volumes was subtitled The Settlements
and set out with lapidary precision the details of political and legal institutions
peculiar to the diverse goals of England’s overseas expansion. His fourth
volume (subtitled England’s Commercial and Colonial Policy) remains, like the
others, unsurpassed in its copious and exact delineation of a patchwork structure
of rules and laws whose formulation lacked systematic planning or final
consistency, but whose institutions came to serve the economic contributions
of each region’s role in a commercial empire. The same reversion to regionalism
is apparent, too, in Richard B. Morris’s Studies in the History of American
Law: With Special Reference to the Seventeenth and Eighteenth Centuries (New York,
1930). Morris focused his inquiry on doctrinal matters, but his bibliographic
essay on primary sources identifies Massachusetts, Connecticut, New York, and
Maryland as “representative regions for particular departures from the common
law.” When he published a new edition of the book in 1959, in fact, Morris
called for more regional examination of the subject.
The more closely scholars examined trans-Atlantic legal connections, the
more legal differences they discovered. Though not identifying them explicitly
or drawing from them any regionally specific patterns of variation, this
research revealed powerful localist legal impulses that a later generation of
scholars would synthesize within such molds. In Appeals to the Privy Council
from the American Plantations (New York, 1950), Joseph H. Smith (a student of
Julius Goebel) masterfully describes a politically incoherent system of imperial
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administration that was forced to abandon its attempts to impose legal uniformity
across the empire, but nevertheless continued to meddle with regional
assertions of legal and judicial autonomy. Britain’s colonial policy, that is, sowed
the seeds for future regional awareness by arousing locally specific resistance to
its heavy-handed attempts at centralization that colonists rejected as “repugnant”
to their locally specific legal innovations. Recent work by legal scholars
has amply demonstrated the value of such an approach. Examples of this for
each region are Mary Sarah Bilder, The Transatlantic Constitution. Colonial Legal
Culture and the Empire (Cambridge, MA, 2004), which gives its major attention
to New England; Daniel J. Hulsebosch, Constituting Empire. New York and
the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel
Hill, 2005); and David Konig, “Virginia and the Imperial State: Law, Enlightenment,
and ‘the crooked cord of discretion,’” in David Lemmings, ed., The
British and their Laws in the Eighteenth Century (Woodbridge, Suffolk, 2005).
It was such an irreconcilable difference over the meaning of “l(fā)aw” and “constitution”
that had led to the Revolution, as amply demonstrated in John Philip
Reid’s series of three books on the widening constitutional chasm. Embracing
within it a vast territory of legal development, his Constitutional History of the
American Revolution treats The Authority of Rights (Madison, 1986), The Authority
to Tax (Madison, 1987), and The Authority to Legislate (Madison, 1991), all
legal questions on which the colonies claimed interpretive sovereignty. Yet
embedded within Reid’s trans-Atlantic rift were smaller, more localized ones
generated by the force of a regional impulse in English law centering on the
local jury. Before publishing his Constitutional History, Reid examined the jury
as the embodiment of the vicinage and local legal definition in two other books,
In a Defiant Stance: The Conditions of Law in Massachusetts Bay, the Irish Comparison,
and the Coming of the American Revolution (University Park, 1977) and In
Defiance of Law: The Standing-Army Controversy, the Two Constitutions, and the
Coming of the American Revolution (Chapel Hill, 1981).
Reid, like other widely read legal scholars, exemplifies the legal scholar’s
awareness of the work of historians, especially students of England’s variegated
legal landscape. Unavoidably, this scholarship has pointed them to an appreciation
of a common legal dynamic – that of the way the common law has
accommodated local norms and assumptions to gain legitimacy in a national
history hostile to strong centralizing efforts and wracked by internal conflict.
J. G. A. Pocock provides the foundation for examining the searing force of critical
“moments” in The Machiavellian Moment: Florentine Political Thought and
the Atlantic Republican Tradition (Princeton, 1975). More focused on the New
World is Jack P. Greene, “Transplanting Moments: Inheritance in the Formation
of Early American Culture,” William and Mary Quarterly, 3rd ser., 48
(1991), 227. Though the “republican paradigm” that Pocock advanced has had
great influence, scholars still find enormous influence in the product of another
“moment,” John Locke’s 1690 Two Treatises of Government, available in A Critical
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Edition with an Introduction and Apparatus Criticus, ed. Peter Laslett (New York,
1963). Alan Everitt shows how early modern regional English legal cultures
finally became self-consciously so after a long history of unacknowledged variation
in “Country, County and Town: Patterns of Regional Evolution in England,”
Transactions of the Royal Historical Society, 5th ser., 29 (1979), 79–81,
whereas Richard S. Thompson, Islands of Law. A Legal History of the British
Isles (New York, 2000), identifies local “battles for survival” in the seventeenth
century as a force for entrenching regional distinctiveness. Illustrative of the
institutional changes wrought are Norma Landau, The Justices of the Peace, 1679–
1760 (Berkeley, 1984), and Keith Wrightson, “The Politics of the Parish,” in
Paul Griffiths, Adam Fox, and Steven Hindle, eds., The Experience of Authority
in Early Modern England (Basingstoke, 1996). Within this model, studies of
local English economic patterns gain great relevance for legal inquiry. Most
influential in this genre has been Margaret Spufford, Contrasting Communities.
English Villagers in the Sixteenth and Seventeenth Centuries (Cambridge, 1974). On
the persistence of such local patterns in New England, see David Grayson Allen,
In English Ways. The Movement of Societies and the Transferal of English Custom to
Massachusetts Bay in the Seventeenth Century (Chapel Hill, 1981).
The present ascendancy of a regional approach to early American legal history
should not obscure the fact the winds of historical fashion have changed
direction over the years and will certainly do so again. When Andrews wrote in
1944, he was responding to two powerful trends in the writing of history that
would work against the regional paradigm. One was the accelerating emphasis
on social science methods, as historians tried to share in the new glow of the
rising social sciences, which Andrews, responding to its absence in his own
work, would struggle vainly to incorporate. The other, and yet more powerful
tide, was that of a post-Progressive reaction that preferred to emphasize
common, unifying forces in the history of a nation rising to dominance after
World War II. These factors included law and constitutionalism, producing a
historiographical “consensus” that searched early America for the values and
practices that would later serve as the engine propelling American national
triumph, and that, many assumed, would travel with equal success across the
globe. Such grand themes thus moved to replace localized and specific material
forces.
When scholars look back on the historiography of the middle twentieth
century, therefore, they see early America almost segregated off as a distinct
period, removed by the great divide of the Revolution, which, by definition,
would change the legal landscape so dramatically as to leave it unrecognizable
to the Rip VanWinkles of the Early Republic. Michael Zuckerman recognizes
this barrier in his illuminating and perceptive essay on “Regionalism” in The
Blackwell Companion to American History (Malden, MA, 2003), 311–33. In it
Zuckerman describes the earlier paradigm of a “real rupture between the study
of early America, predicated as it is on the priority of distinctive regions, and
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of the new nation, devoted as it is to charting the emergence of a new locus
of loyalty at the center.” The gap that Zuckerman identifies had become especially
acute in legal scholarship, where the teaching of law addresses its subject
doctrinally, emphasizing appellate decisions that illustrate the articulation of
general principles.With the enormous growth of the federal legal system into
areas over which it has traditionally had only a limited jurisdiction (crime, for
example), this separation of the colonial period only grew throughout much
of the second half of the twentieth century. Though Zuckerman gives little
attention to law, he quite properly celebrates the contributions and positive
interpretive influence of the “regional paradigm” that reappeared and has come
to dominate early American scholarship since the 1960s. This trend in scholarship
constituted a remarkable historiographical “about-face” that has reversed
received conventions of the previous decades asserting a colonial past whose
unprofessional bench and bar bequeathed to the new nation a crude system
that demanded prompt professionalization and nationalized standards. As law
schools have steadily embraced an ever wider academic interdisciplinary focus,
moreover, the impact of these changes on legal scholarship has been profound.
In recovering regional identities in an earlier era, Zuckerman observes how
historians of early America have drawn on the theoretical and empirical work of
many other disciplines, such as Trevor Barnes and James Duncan, eds.,Writing
Worlds: Discourse, Text, and Metaphor in the Representation of Landscape (London,
1992); Stephen Daniels, “Place and the Geographical Imagination,” Geography
77 (1992), 310–22; J. Nicholas Entrikin, The Betweenness of Place: Towards a
Geography of Modernity (Baltimore, 1991); Raymond Gastil, Cultural Regions of
the United States (Seattle, 1975); Henry Glassie, Patterns in the Material Folk
Culture of the Eastern United States (Philadelphia, 1968); David Lowenthal and
Martyn Bowden, eds., Geographies of the Mind: Essays in Historical Geosophy in
Honor of John Kirtland Wright (New York, 1976); D.W. Meinig, The Shaping of
America: A Geographical Perspective on 500 Years of History, vol. I, Atlantic America,
1492–1800 (New Haven, 1986); Edward Soja, Postmodern Geographies: The
Reassertion of Space in Critical Social Theory (London, 1989); Michael Steiner and
Clarence Mondale, eds., Region and Regionalism in the United States: A Source Book
for the Humanities and Social Sciences (New York, 1988); and Wilbur Zelinsky,
The Cultural Geography of the United States (Englewood Cliffs, 1973).
The major impact of such work has been to provide theoretical templates
for historicizing the foundations of regionalism, a trend made all the more
apparent as American scholars have expanded their inquiry to include global
and comparative legal perspectives. In the modern world legal regionalism
has often appeared in the many strategies of local and traditional resistance to
the homogenizing forces of modernity, whether they be political or economic.
Because this nation began in an assertion of provincial independence against the
encroachments of the modern, centralizing British system, this school of social
theory has been especially useful in the analysis of colonial institutions and
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has informed scholarship with important and direct, if not always explicitly
stated, impact on our understanding of colonial law and legal institutions.
Among these are Richard D. Brown, “The New Regionalism,” in William
Robbins et al., eds., Regionalism in the Pacific Northwest (Corvallis, 1983), 37–
96; Peter S. Onuf and Edward L. Ayers, “Introduction,” in Edward L. Ayers,
Patricia Nelson Limerick, Stephen Nissenbaum, and Peter S. Onuf, eds., All
over the Map. Rethinking American Regions (Baltimore, 1996), 1–10; and Onuf’s
“Federalism, Republicanism, and the Origins of American Sectionalism,” in
that same volume at 11–37.
The implications of regionalism are clear, too, among many historians whose
conclusions and interpretations may differ and who would scarcely be deemed
members of a unified interpretive school. Agreeing on the fact – if not the
meaning – of political regionalism are John Phillip Reid, whose work has been
noted already; Bernard Bailyn, especially in The Peopling of British North America.
An Introduction (New York, 1986) and his Voyagers to the West. A Passage in the
Peopling of America on the Eve of the Revolution (New York, 1986), a magisterial
analysis of peoples in motion and their transplantation of local cultures in
the vast basin of the Atlantic world; and Jack P. Greene, whose Pursuits of
Happiness. The Social Development of Early Modern British Colonies and the Formation
of American Culture (Chapel Hill, 1988) offers five regional models and expands
the conceptual framework to include more attention to law in such work as
Peripheries and Center: Constitutional Development in the Extended Polities of the
British Empire and the United States, 1607–1788 (Athens, GA, 1986).
Recent scholarship on early American legal history thus rests firmly on the
assumption that analysis must begin with or be organized according to the variety
of local conditions. This is especially true of studies on the development of
the peculiar and unique “l(fā)aw” of slavery. In this one area of law alone, Americans
perceived the basis for irreconcilable differences between regions, and many
commented on it. One of the more fearful expressions of this divide, made
by a Boston lawyer, is described by Daniel R. Coquillette, “Sectionalism, Slavery,
and the Threat of War in Josiah Quincy Jr.’s 1773 Southern Journal,” New
England Quarterly 79 (2006), 181. Edmund Morgan makes explicit the connection
between the enslavement of Africans and the ever increasing enjoyment
of freedom by whites in his American Slavery, American Freedom. The Ordeal of
Colonial Virginia (New York, 1776). Jonathan Bush extends this idea in “Free
to Enslave: The Foundations of Colonial American Slave Law,” Yale Journal of
Law and the Humanities 5 (1993), 456, whereas the hypocrisy of white freedom
and black enslavement is central to A. Leon Higginbotham, In the Matter
of Color. Race and the American Judicial Process: The Colonial Period (New York,
1978). Tracing the influence of the Continental civil law tradition is Alan
Watson, Slave Law in the Americas (Athens, GA, 1989). For a study of its peculiarly
West Indian antecedents, see Bradley J. Nicholson, “Legal Borrowing
and the Origins of Slave Law in the British Colonies,” American Journal of Legal
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History 38 (1994), 38–54, and Barry David Gaspar, “‘Rigid and Inclement’:
Origins of the Jamaica Slave Laws of the Seventeenth Century,” in Many Legalities,
78–96.
Gender, as an analytical framework that has been especially prone to cultural
construction across the centuries, has attracted insightful scholarship. On the
impact of Puritanism in New England, see Cornelia Hughes Dayton, Women
Before the Bar. Gender, Law, and Society in Connecticut, 1639–1789 (Chapel Hill,
1995). As the product of economic and demographic forces, see Lois G. Carr
and Lorena S. Walsh, “The Planter’s Wife: The Experience of White Women
in Seventeenth-Century Maryland,” William & Mary Quarterly, 3rd ser., 34
(1977), 542–71. Directly concerned with legal matters are Marylynn Salmon,
Women and the Law of Property in Early America (Chapel Hill, 1986) and Deborah
A. Rosen, “Women and Property Across Colonial America: A Comparison
of Legal Systems in New Mexico and New York,” William & Mary Quarterly,
3rd ser., 60 (2003), 364–65 and her Courts and Commerce. Gender, Law, and the
Market Economy in Colonial New York (Columbus, OH, 1997); see also Linda
L. Sturtz, Within Her Power. Propertied Women in Colonial Virginia (New York,
2002). Divorce was a legal procedure recognized in New England far in advance
of other English-speaking legal communities. See Nancy F. Cott, “Divorce and
the Changing Status ofWomen in Eighteenth-Century Massachusetts,”William
& Mary Quarterly, 3rd ser., 33 (1976), 586–614; Henry S. Cohn, “Connecticut’s
Divorce Mechanism, 1636–1969,” American Journal of Legal History 14
(1970), 70–92; and Glenda Riley, Divorce: An American Tradition (New York,
1991).
Other topical local legal studies implicitly and explicitly recognize the power
of regional impulses and specific regional realities. Herbert A. Johnson’s The
Law Merchant and Negotiable Instruments in Colonial New York, 1664 to 1730
(Chicago, 1963) examines one area of law to demonstrate the enduring force
of cultural differences existing in the process of conquest. By contrast, the
swiftness of legal transformation after political transfer can be seen in Stuart
Banner, Legal Systems in Conflict. Property and Sovereignty in Missouri, 1750–
1860 (Norman, 2000). For the Chesapeake, the impact of local economic and
demographic forces on the family has been demonstrated by Holly Brewer,
“Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudel Restraints’ and
Revolutionary Reform,”William&Mary Quarterly, 3rd ser., 54 (1997), 307–46,
and the same author’s more wide-ranging study, By Birth or Consent. Children,
Law, and the Anglo-American Revolution in Authority (Chapel Hill, 2005), and by
Lois Green Carr, “The Development of the Maryland Orphans’ Court, 1654–
1715,” in Aubrey C. Land, Lois Green Carr, and Edward C. Papenfuse, eds., Law,
Society, and Politics in Early Maryland (Baltimore, 1977), 41–62. On equity and
its role, two specialized studies provide insight: Stanley N. Katz, “The Politics
of Law: Controversies over Chancery Courts and Equity Law in the Eighteenth
Century,” Perspectives in American History 5 (1971), 257, and Spencer R. Liverant
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andWalter H. Hitchler, “A History of Equity in Pennsylvania,” Dickinson Law
Review 37 (1933), 156. Crime in New York has been the subject of Douglas
Greenberg, Crime and Law Enforcement in the Colony of New York, 1691–1776
(Ithaca, NY, 1976), and of Julius G. Goebel, Jr., and T. Raymond Naughton,
Law Enforcement in Colonial New York. A Study in Criminal Procedure (1664–
1776) (New York, 1944). Pennsylvania’s particular religious heterododoxy and
its legal legacy have had the benefit of specialized studies byWilliam M. Offutt,
Jr., Of “Good Laws” and “Good Men.” Law and Society in the Delaware Valley, 1680–
1710 (Urbana, 1995); G. S. Rowe, Embattled Bench. The Pennsylvania Supreme
Court and the Forging of a Democratic Society, 1684–1809 (Newark, 1994); and
A. G. Roeber, Palatines, Liberty, and Property: German Lutherans in Colonial British
America (Baltimore, 1993).
The historiography of colonial New England has attracted more attention
than any region. Studying the special character of law there are George Lee
Haskins, “The Beginnings of the Recording System in Massachusetts,” Boston
University Law Review 21 (1941), 281; David H. Flaherty, Privacy in Colonial
New England (Charlottesville, 1972); William E. Nelson, Americanization of
the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830
(Cambridge, MA, 1975) and his “The Utopian Legal Order of the Massachusetts
Bay Colony, 1630–1686,” American Journal of Legal History 47 (2005), 183;
David Thomas Konig, Law and Society in Puritan Massachusetts. Essex County,
1629–1692 (Chapel Hill, 1979); Bruce H. Mann, Neighbors and Strangers. Law
and Community in Early Connecticut (Chapel Hill, 1987); and Edgar J. McManus,
Law and Liberty in Early New England. Criminal Justice and Due Process 1620–
1692 (Amherst. 1993).
The reception of the common law in each colony has been a standard of measuring
the legal “sophistication” or backwardness of each, but recent scholars
have abandoned such a measurement as misleading. Nonetheless, the extent
to which individual colonies adopted identifiable common law principles and
procedures serves as a useful comparative tool within a framework of regional
analysis. For direct regional inquiries, see Herbert A. Johnson, “The Advent
of Common Law in Colonial New York,” in George A. Billias, ed., Law and
Authority in Colonial America (Barre, MA, 1965), 74–91; Mark DeWolfe Howe,
“The Source and Nature of Law in Colonial Massachusetts,” ibid., 1–16; and
Wilcomb E.Washburn, “Law and Authority in Colonial Virginia,” ibid., 116–
35; David Thomas Konig, “‘Dale’s Laws’ and the Non-Common Law Origins
of Criminal Justice in Virginia,” American Journal of Legal History 26 (1984),
354–56 and the same author’s “Colonization and the Common Law in Ireland
and Virginia, 1569–1634,” in James A. Henretta, Michael Kammen, and Stanley
N. Katz, eds., The Transformation of Early American History. Society, Authority,
and Ideology (New York, 1991). When it appears, the forthcoming multivolume
The Common Law in Colonial America by William E. Nelson will come as close
as is possible to a definitive statement on the subject.
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chapter 6: penality and the colonial project
michael meranze
As with the history of early American criminal law so with its historiography:
diversity rules. The historiography of the criminal law in early America is
marked simultaneously by the presence of a wide-ranging empirical and interpretive
base and a surfeit of synthetic and comparative discussions. Scholars –
both in law schools and history departments – have conducted careful and
imaginative investigations into the penal codes, practices, and rules across early
America. They have also produced a wide variety of insightful social histories of
the criminal law. But they have been less successful in integrating these studies
into the larger history of early America or developing analytical frames that
compare to their European and British counterparts. In part, this situation is
itself a product of history: the widely decentralized juridical systems make it
impossible to generalize in the manner of English historians. But the result is
a field in need of new efforts of analytical and comparative synthesis.
There are, to be sure, certain exceptions to these claims. Kathryn Preyer
offered a synthesis of the statutory structures of early American criminal law
in her “Penal Measures in the American Colonies,” American Journal of Legal
History 26 (1982), 326–53, while Bradley Chapin sought to provide an overview
of the situation in the years of conquest and consolidation in his Criminal
Justice in Early America, 1606–1660 (Athens, GA., 1983). David Flaherty in
his “Law and the Enforcement of Morals in Early America,” Perspectives in
American History 5 (1971), 203–53, and Douglas Greenberg in “Crime, Law
Enforcement, and Social Control in Colonial America,” American Journal of Legal
History 26 (1982), 293–325, sought to provide interpretive arguments about
the relationship between law and social order in early America. But these efforts
were all limited in scope.
Although no overall synthesis or framework for continuing research exists
at present, the production of studies of early American criminal law continues
apace – in articles as well as books. As a result scholars are well advised to turn
to the leading journals of the early American field, in particular the William
and Mary Quarterly, as well as the important regional or state-based journals:
in particular the New England Quarterly, the Pennsylvania Magazine of History
and Biography, and the Virginia Magazine of History and Biography. The more
general journals of legal and American history also publish relevant articles,
although infrequently. In this essay I have only been able to touch the surface
of these ongoing contributions.
In addition, although the vast majority of court records remain only available
in manuscript or microfilm form, there are a number of volumes of published
collections of court records. For a sampling of records of particular interest to
historians of the criminal law, see for example, Joseph Smith ed., Colonial Justice
inWestern Massachusetts, 1639–1702; The Pynchon Court Record, an Original Judges’
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Diary of the Administration of Justice in the Springfield Courts in the Massachusetts
Bay Colony (Cambridge, MA, 1961); Susie M Ames, ed., County Court Records
of Accomack-Northampton, Virginia, 1640–1645 (Charlottesville, 1973); David
Thomas Konig, ed., Plymouth Court Records, 1686–1859 (Wilmington, DE,
1978–1981) especially vols. 1, 5–16; and Peter Hoffer and William B. Scott,
eds., Criminal Proceedings in Colonial Virginia: (Records of ) Fines, Examination of
Criminals, Trials of Slaves, etc. from March 1710 (1711) to (1754), (Richmond
County, Virginia) (Athens, GA, 1984). In addition, the Archives of Maryland,
which includes sizeable holdings of the records of the administration of the
criminal law, is now available online.
Any approach to the history of crime and law in early America must begin
with the metropolitan context. Here scholars are well served. An eighteenthcentury
classic, still worth reading for both its perceptions and knowledge, is
William Blackstone’s Commentaries on the Laws of England easily available with
an introduction by Thomas A. Green (Chicago, 1979). A more modern classic
is Leon Radzinowicz’s A History of English Criminal Law and its Administration
from 1750 (London, 1948), especially vol. I, The Movement for Reform. Each provides
scholars with an analytical overview of the early modern English criminal
law, especially its penal components. Beginning in the 1970s, a new wave of
revisionist social history of the English criminal law took off. Signal volumes in
this wave of writing were E. P. Thompson’s Whigs and Hunters: The Origins of the
Black Act (New York, 1974); Douglas Hay, Peter Linebaugh, and E. P. Thompson,
eds., Albion’s FatalTree: Crime and Society in Eighteenth-Century England (New
York, 1975); and John Brewer and John Styles eds., An Ungovernable People: The
English and Their Law in the Seventeenth and Eighteenth centuries (New Brunswick,
NJ, 1980). Despite their differences (Brewer and Styles emphasized far greater
access to the courts than do Hay et al, who were more concerned with the
relationship between class power and law as well as the history of social crime)
they shared a turn toward a predominantly social historical approach. Since
the 1970s studies that either conform or challenge their particular approaches
have been legion. But the two most important figures in recent historiography
have been John Beattie (see his Crime and the Courts in England, 1660–1800
[Princeton, NJ, 1986] and Policing and Punishment in London 1660–1750: Urban
Crime and the Limits of Terror [New York, 2001]), whose work has charted out in
greater depth than ever before the actual practices and complexities of criminal
justice, and Randall McGowen – see his “‘Making Examples’ and the Crisis
of Punishment in Mid-Eighteenth-Century England,” in David Lemmings,
ed., The British and Their Laws in the Eighteenth Century (London, 2005); “The
Problem of Punishment in Eighteenth-Century England,” in S. Devereaux and
P. Griffiths, eds., Penal Practice and Culture, 1500–1900 (London, 2003), 210–
31; “‘He Beareth Not the Sword in Vain’: Religion and the Criminal Law in
Eighteenth-Century England,” Eighteenth-Century Studies ,21 (1987–88), 192–
211; and “The Body and Punishment in Eighteenth-Century England,” Journal
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632 Bibliographic Essays
of Modern History 59 (1987), 651–79 – who, focusing on the death penalty, has
reinvented the non-teleological intellectual history of criminal law.
Whereas the metropolitan context is the object of a rich literature, the
imperial or colonial context of the criminal law has been less fortunate. For the
largest juridical and institutional frames, scholars can still profit from Charles
McLean Andrews, The Colonial Period of American History, 4 vols. (New Haven,
1934–8), in particular vol. IV, England’s Commercial and Colonial Policy, and
Richard B. Morris, Studies in the History of American Law: With Special Reference
to the Seventeenth and Eighteenth Centuries (New York, 1930). In addition, the
question of to what extent American law diverged from the English has been
the theme of numerous writings, including Julius Goebel, Jr., and T. Raymond
Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure
(1664–1776) (New York, 1944); George Lee Haskins, Law and Authority in
Early Massachusetts (New York, 1960); William E. Nelson, Americanization of
the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830
(Cambridge, MA, 1975); and G. B.Warden, “Law Reform in England and New
England, 1620–1660,” William and Mary Quarterly, 3rd ser., 39 (1982), 64–
86 – all which, in part or in whole, address the criminal law. For an influential
caution against seeing the process of change as “Americanization,” see John M.
Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century
Massachusetts,” in Stanley N. Katz, ed., Colonial America: Essays In Politics and
Social Development, (Boston, 1971), 415–49. And for an important argument
that historians must recognize the multiplicity of legal traditions in England
see David Thomas Konig, “‘Dale’s Laws’ and the Non-Common Law Origins
of Criminal Justice in Virginia,” American Journal of Legal History 26 (1982),
354–75.
In general, the question of the imperial context has not been imagined
whole; instead it has been addressed more particularly in the context of Native
American relations and in slavery (see below). But for one recent attempt on
the bond between colonization and law that, although it does not address the
criminal law at any great length, does suggestively reopen the question of
the relationship of empire and law, see Christopher L. Tomlins, “The Many
Legalities of Colonization: A Manifesto of Destiny for Early American Legal
History” in Christopher L. Tomlins and Bruce Mann, eds., The Many Legalities
of Early America (Chapel Hill, NC, 2000), 1–24. In addition, works that address
deep water sailors and pirates also afford insight into the larger imperial context.
The literature is large but see in particular Marcus Redikers, Between the Devil
and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime
World, 1700–1750 (New York, 1987) and Villians of All Nations: Atlantic Pirates
in the Golden Age (Boston, 2004), as well as Robert C. Ritchie, Captain Kidd and
theWar Against the Pirates (Cambridge, MA, 1986). For an account of maritime
punishments that argues for their continuities with labor discipline on shore,
see Daniel Vickers with VinceWalsh, Young Men and the Sea: Yankee Seafarers in
the Age of Sail (New Haven, 2005).
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Given its centrality to the colonial world of punishment, the death penalty
has attracted a good deal of attention. The standard account now must be Stuart
Banner, The Death Penalty: An American History (Cambridge, MA, 2002), which
surveys developments throughout the colonial and revolutionary periods. Given
the difficulty in reconstructing reliable figures for executions, scholars are lucky
to have a series of guiding studies: Negley F. Teeters, “Public Executions in
Pennsylvania, 1682–1834,” Journal of the Lancaster County Historical Society 44
(1960), and two works by Daniel Allen Hearn, Legal Executions in New York,
1639–1963 ( Jefferson, NC, 1997) and Legal Executions in New England, 1623–
1960 ( Jefferson, NC, 1999), provide access to basic patterns in the North. In
addition, Daniel A. Cohen, Pillars of Salt, Monuments of Grace: New England
Crime Literature and the Origins of American Popular Culture, 1674–1860 (New
York, 1993) and Karen Halttunen, Murder Most Foul: The Killer and the American
Gothic Imagination (Cambridge, MA, 1998) each offer extensive treatments of
the execution sermon and histories of the changing relationships among popular
culture, print, and the criminal law.
For the most part, studies of crime and the law have proceeded along colony
and state lines. For helpful investigations, with particular emphasis on social
and penal history, see Richard Gaskins, “Changes in the Criminal Law in
Eighteenth-Century Connecticut,” American Journal of Legal History 25 (1981),
309–42; Douglas Greenberg, Crime and Law Enforcement in the Colony of New
York (Ithaca, NY, 1976); Linda Kealey, “Patterns of Punishment: Massachusetts
in the Eighteenth Century,” American Journal of Legal History 30 (1986), 163–
86; Edwin Powers, Crime and Punishment in Early Massachusetts, 1620–1692: A
Documentary History (Boston, 1966); Arthur P. Scott, Criminal Law in Colonial
Virginia (Chicago, 1930); Raphael Semmes, Crime and Punishment in Early Maryland
(Baltimore, 1938); Donna J. Spindel, Crime and Society in North Carolina
1663–1776 (Baton Rouge, LA, 1989); and Jules Zanger, “Crime and Punishment
in Early Massachusetts,” William and Mary Quarterly 22 (1965), 471–7.
For the most systematic treatment of any colony see Jack D. Marietta and
G. S. Rowe, Troubled Experiment: Crime and Justice in Pennsylvania, 1682–1800
(Philadelphia, 2006).
The history of criminal procedure, trials, and magistrates has also proceeded
on a colony or regional basis. Not surprisingly, New England has seen some
of the richest discussion. For two outstanding analyses of trials and their practices
see Gail Sussman Marcus, “‘Due Execution of the Generall Rules of
Righeousnesse’: Criminal Procedure in New Haven Town and Colony, 1638–
1658,” and John M. Murrin, “Magistrates, Sinners, and a Precarious Liberty:
Trial by Jury in Seventeenth-Century New England,” both in David D. Hall,
John Murrin, and ThadW. Tate, eds., Saints and Revolutionaries: Essays on Early
American History (New York, 1984), at 99–137 and 152–206 respectively. Carol
F. Lee, “Discretionary Justice in Early Massachusetts,” Essex Institute Historical
Collections 112 (1976), 120–39, offers an intriguing analysis of departures from
formal codes, whereas Edgar J. McManus, Law and Liberty in Early New England:
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Criminal Justice and Due Process, 1620–1692 (Amherst, MA, 1993) traces the
tensions indicated in his title. Further south, Goebel, and Naughton’s classic
lawyerly Law Enforcement in Colonial New York: A Study in Criminal Procedure
(1664–1776) (New York, 1944) offers extensive analysis on practices in New
York. For the southern colonies see, among other of his writings, Warren M.
Billings, “Pleading, Procedure, and Practice: The Meaning of Due Process of
Law in Seventeenth-Century Virginia,” Journal of Southern History 47 (1981),
569–84; Hugh F. Rankin, Criminal Trial Proceedings in the General Court of Colonial
Virginia (Charlottesville, 1965); James D. Rice, “The Criminal Trial Before
and After the Lawyers: Authority, Law, and Culture in Maryland Jury Trials,
1681–1837,” American Journal of Legal History 40 (1996), 455–75; and A. G.
Roeber, Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal
Culture, 1680–1810 (Chapel Hill, NC, 1981). Martha McNamara examines the
evolution of legal spaces in her From Tavern to Courthouse: Architecture and Ritual
in American law, 1658–1860 (Baltimore, 1984). For comparison with England,
see the work of John H. Langbein, especially his “The Criminal Trial Before
the Lawyers,” University of Chicago Law Review 45 (1978), 263–316; “Shaping
the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University
of Chicago Law Review 50 (1983), 1–136; and The Origins of Adversary
Criminal Trial (New York, 2005).
Beyond these geographically focused studies of crime, law, and its administration
there has been growing interest in the relationship of the criminal law
to specific social groups, practices, and institutions. Not surprisingly, given
the general dynamism of the field, has been a series of works in women’s history
that have broadened our understanding of early American criminal law.
Although not focused on crime and the law Cornelia Hughes Dayton, Women
Before the Bar: Gender, Law, & Society in Connecticut, 1639–1789 (Chapel Hill,
NC., 1995); Mary Beth Norton, Founding Mothers & Fathers: Gendered Power and
the Forming of American Society (New York, 1996); and Terri L. Snyder, Brabbling
Women: Disorderly Speech and the Law in Early Virginia (Ithaca, NY., 2003) each
examine the gendered nature of the criminal law practices in early America.
More focused on female criminality are N. E. H. Hull, Female Felons:Women and
Serious Crime in Colonial Massachusetts (Urbana, IL, 1987); Peter Charles Hoffer
and N. E. H. Hull, Murdering Mothers: Infanticide in England and New England,
1558–1803 (New York, 1981); and two articles by G. S. Rowe, “Women’s
Crime and Criminal Administration in Pennsylvania, 1763–1790,” Pennsylvania
Magazine of History and Biography 109 (1985), 335–68 and “Infanticide, Its
Judicial Resolution, and Criminal Code Revision in Early Pennsylvania,” Proceedings
of the American Philosophical Society 135 (1991), 200–32.Violence against
women has also been the subject of a powerful literature. In addition to the
above works see the pioneering effort by Barbara S. Lindemann, “‘To Ravish and
Carnally Know’: Rape in Eighteenth-Century Massachusetts,” Signs: Journal of
Women in Culture and Society 10 (1984–85), 63–82. More recent scholarship can
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be seen in the collections Over the Threshold: Intimate Violence in Early America,
edited by Christine Daniels and Michael V. Kennedy (New York, 1999), and
Merril D. Smith, ed., Sex Without Consent: Rape and Sexual Coercion in America
(New York, 2002), although the latter extends far beyond the early period.
The historiography on moral regulation is of long standing. Indeed, given
the mythical images of Puritans popular in the twentieth century it was central
to an understanding of early New England. However, it has increasingly been
fused with the growing interest in the history of sexuality. On the latter,
in addition to the works discussed regarding women and the law – most of
which discuss sexuality and intimacy – see especially Richard Godbeer, Sexual
Revolution in Early America (Baltimore, 2002), and Clare A. Lyons, Sex Among the
Rabble: An Intimate History of Gender&Power in the Age of Revolution, Philadelphia,
1730–1830 (Chapel Hill, NC, 2006). For questions of the relationship between
religion and moral regulation, good places to begin remain David H. Flaherty,
“Law and the Enforcement of Morals in Early America,” Perspectives in American
History 5 (1971), 203–53, and Jack D. Marietta, The Reformation of American
Quakerism, 1748–1783 (Philadelphia, 1984). At the intersection of morals,
religion, and law – at least in New England – stood witchcraft. This topic has, of
course, produced an extensive and complicated literature. But see in particular,
Carol F. Karlsen, The Devil in the Shape of a Woman: Witchcraft in Colonial New
England (New York, 1987), for an innovative linking of the history of gender,
moral regulation, and the law.
Not surprisingly, the question of slavery and the penal law has also produced
a rich literature. Here the starting points remain Philip J. Schwarz, Slave Laws
in Virginia (Athens, GA, 1996) and Twice Condemned: Slaves and the Criminal
Laws of Virginia, 1705–1865 (Baton Rouge, LA, 1988). But see as well, Thomas
D. Morris, Southern Slavery and the Law, 1619–1860 (Chapel Hill, NC, 1996),
an all but exhaustive treatment. Although not legal histories per se, Edmund
Morgan’s American Slavery, American Freedom: The Ordeal of Colonial Virginia
(New York, 1976); Kathleen M. Brown, GoodWives, NastyWenches, and Anxious
Patriarchs: Gender, Race and Power in Colonial Virginia (Chapel Hill, NC, 1996);
and Philip D. Morgan, Slave Counterpoint: Black Culture in the Eighteenth-Century
Chesapeake and Lowcountry (Chapel Hill, NC, 1998) all offer extended discussions
of the relationship among the laws of slavery, labor systems, and the evolution
of colonial societies. Edward L Ayers, Vengeance and Justice: Crime and Punishment
in the 19th-Century American South (New York, 1984), takes the story up into
the Early Republic. In addition, the growing recognition of the ubiquity of
slavery in early America has renewed interest in the New York slave conspiracy
of 1741. The standard account is Thomas J. Davis, Rumor of Revolt: The Great
‘Negro Plot’ in Colonial New York (New York, 1975); see as well Peter Charles
Hoffer, The Great New York Conspiracy of 1741: Slavery, Crime, and Colonial law
(Lawrence, Kansas, 2003), and Jill Lepore, New York Burning: Liberty, Slavery,
and Conspiracy in Eighteenth-Century Manhattan (New York, 2005).
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For the reach of colonial law and its relationship with Native American
notions of justice, see the work of John Philip Reid, especially his Patterns of
Vengeance: Crosscultural Homicide in the North American Fur Trade (Pasadena, CA,
1999), and Yasuhide Kawashima, Puritan Justice and the Indian: White Man’s
Law in Massachusetts, 1630–1763 (Middletown, CT, 1986) and Igniting King
Philip’s War: The John Sassamon Murder Trial (Lawrence, KS, 2001). But see as
well Jill Lepore’s treatment of the conflict of criminal laws in her The Name of
War: King Philip’sWar and the Origins of American Identity (New York, 1998). For
an argument that Native Americans were willing and able to deploy English
legal norms see Katherine Hermes, “‘Justice Will Be Done Us’: Algonquin
Demands for Reciprocity in the Courts of European Settlers,” in Tomlins and
Mann eds., The Many Legalities of Early America, 123–49. And for a provocative
discussion of the reach of Anglo legal power and criminal punishments, see
James H. Merrell, “‘The Customes of our Countrey’: Indians and Colonists in
Early America,” in Bernard Bailyn and Philip D. Morgan, eds., StrangersWithin
the Realm: Cultural Margins of the First British Empire (Chapel Hill, NC, 1991).
The transformation of the criminal law and penal practices during and after
the American Revolution is an oft-told tale. But see in particular William
E. Nelson, “Emerging Notions of Modern Criminal Law in the Revolutionary
Era: An Historical Perspective,” NYU Law Review 42 (1967), 450–82; Kathryn
Preyer, “Crime, the Criminal Law and Reform in Post-Revolutionary Virginia,”
Law and History Review 1 (1983), 53–85; Louis P. Masur, Rites of Execution: Capital
Punishment and the Transformation of American Culture, 1776–1865 (New
York, 1989); Adam Jay Hirsch, The Rise of the Penitentiary: Prisons and Punishment
in Early America (New Haven, 1992); and Michael Meranze, Laboratories of
Virtue: Punishment, Revolution and Authority in Philadelphia, 1760–1835 (Chapel
Hill, NC, 1996). Unfortunately, Stephen Wilf ’s fine study of the place of the
criminal law in the American Revolution, “Imagining Justice: Politics, storytelling
and politics in Revolutionary America,” Ph.D. thesis, Yale University,
1995, remains unpublished. But, for questions of the relationship between the
vice-admiralty courts and the coming of the Revolution the standard account
remains Carl Ubbelohde, The Vice-Admiralty Courts and the American Revolution
(Chapel Hill, NC, 1961). And for the study that helped trigger new interest
in the topic see David J. Rothman, The Discovery of the Asylum: Social Order and
Disorder in the New Republic (Boston, 1971).
chapter 7: law, population, labor
christopher tomlins
Historians of early America have given considerable attention to the process of
English settlement of mainland North America – the establishment of colonies,
migrations of peoples, and formation of labor forces. Law, however, has not until
recently figured much in their inquiries, except as a resource (court records)
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for social historical research and to some extent as an element of studies of
local institution-building. Nor have historians of early American law given a
great deal of attention to the relationship between law and demography, to
law as an instrument for the design of colonies, or to the macrostructural role
of law in the recruitment and “management” of population. The purpose of
this chapter is to describe and explore these connections. The sources discussed
here furnish the essential basis – primary and secondary – for this chapter and
collectively constitute the appropriate jumping-off point for additional work.
The overarching theme of the chapter is that we miss much of the meaning of
English penetration of the mainland if we think of it in the essentially anodyne,
self-absorbed terms of “settlement.” As conceived here, English penetration of
the mainland was a purposeful process of colonization, a taking of possession.
Law was one of the most important technologies at its disposal.
Essential Sources on Mainland Colonizing
For extensive exposure to the writings of English colonization’s early theorists
and propagandists, see E. G. R. Taylor, ed., The Original Writings and Correspondence
of the Two Richard Hakluyts (London, 1935), which includes among
other works the elder Richard Hakluyt’s “Notes on Colonisation” (1578) and
two iterations of his “Pamphlet for the Virginia Enterprise” (1585); and the
younger Hakluyt’s “Preface to Diverse Voyages” (1582) and his “Instructions
for the Virginia Colony” (1606), as well as his famous “Discourse of Western
Planting” (1584). In these works the two Richard Hakluyts outline and develop
the political-economic model of colonizing first put into effect in Virginia. For
an introduction to other essential writings, see Peter C. Mancall, ed., Envisioning
America: English Plans for the Colonization of North America, 1580–1640
(Boston, 1995). For an exploration of the contemporaneous first stirrings of
international law, expressed in legal ideologies of just war and rights of possession,
including analysis of the theories of Alberico Gentili and Hugo Grotius,
see Richard Tuck, The Rights of War and Peace: Political Thought and the International
Order from Grotius to Kant (Oxford, 1999). To explore the influence of
colonizing ideology and international (and metropolitan) law on the formation
of detailed designs for the English colonies themselves, one can do no better
than read the colonies’ charters. For these, see Francis Newton Thorpe, ed.,
The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of
the States, Territories and Colonies Now or Heretofore Forming the United States of
America, 7 vols. (Washington, 1909; Buffalo, NY, 1993). For a summary of the
legalities of “l(fā)oco-motion,” one can do no better at present than go to Blackstone.
SeeWilliam Blackstone, Commentaries on the Laws of England: A facsimile
of the First Edition of 1765–1769, 4 vols. (Chicago, 1979). For Massachusetts’s
Body of Liberties of 1641, see The Colonial Laws of Massachusetts. Reprinted from
the Edition of 1660 (Boston, 1889). For the Lawes and Libertyes, see John D.
Cushing, comp., The Laws and Liberties of Massachusetts, 1641–1691, 3 vols.
(Wilmington, DE, 1976).
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For outstanding summaries and syntheses of the latest research on the imperial
context of North American colonizing, see Nicholas Canny, ed., The Origins
of Empire: British Overseas Enterprise to the Close of the Seventeenth Century and P. J.
Marshall, ed., The Eighteenth Century, comprising vols. I and II of The Oxford
History of the British Empire, ed.William R. Louis (Oxford, 1998). For similarly
indispensable summaries and syntheses of the general socioeconomic conditions
and context of colonizing, see John J. McCusker and Russell R. Menard,
The Economy of British America, 1607–1789 (Chapel Hill, 1989) and Stanley L.
Engerman and Robert E. Gallman, eds., The Cambridge Economic History of the
United States. Volume 1: The Colonial Era (Cambridge, 1996).
Essential Sources on Population and Migration
The literature on the population of and migration to the British mainland
colonies is extensive. In its quantitative aspects, particularly where it comes to
the presentation of long-term and overall population series, this literature is
one of estimation and inference. But over the years methods of estimation have
developed in sophistication to the point where magnitudes that were originally
wholly conjectural have been refined to ranges of numbers with relatively
extensive acceptance. Barring the discovery of wholly new and extensive data
sources or the creation of wholly new methods of estimation, one should be
able to repose reasonable confidence in the assumptions about population and
migration used as the basis for this chapter.
Much more refined “reconstructive” work has been possible in the analysis of
specific data sets dealing with particular components of population or particular
migrant groups at particular times. The more complete the data, the more
reliable the profile of the population in question will be. One must be cautious,
of course, in drawing conclusions about overall population characteristics from
specific data sets.
(a) the indigenous population
The least certain and hence most conjectural elements of North American population
history are those that concern the indigenous population during the
sixteenth and seventeenth centuries. For recent syntheses, see Peter C. Mancall,
“Native Americans and Europeans in English America, 1500–1700,” in Canny,
ed., Origins of Empire; Daniel K. Richter, “Native Peoples of North America
and the Eighteenth-Century British Empire,” in Marshall, ed., The Eighteenth
Century; Neal Salisbury, “The History of Native Americans from Before the
Arrival of the Europeans and Africans Until the American Civil War,” in
Engerman and Gallman, eds., The Cambridge Economic History of the United States.
Vol. 1; Bruce G. Trigger and William R. Swagerty, “Entertaining Strangers:
North America in the Sixteenth Century,” and Neal Salisbury, “Native People
and European Settlers in Eastern North America, 1600–1783,” both in
Bruce G. Trigger andWilcomb E.Washburn, eds., The Cambridge History of the
Native Peoples of the Americas, Vol. 1: North America, part1 (Cambridge, 1996);
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See also Joyce E. Chaplin, Subject Matter: Technology, the Body and Science on the
Anglo-American Frontier, 1500–1676 (Cambridge, MA, 2001). On the dynamics
of contact and consequences for indigenous peoples in particular regions,
see Alan Gallay, The Indian Slave Trade: The Rise of the English Empire in the American
South, 1670–1717 (New Haven, 2002); Eric Hinderaker, Elusive Empires:
Constructing Colonialism in the Ohio Valley, 1673–1800 (Cambridge, 1997); Jill
Lepore, The Name of War: King Philip’s War and the Origins of American Identity
(New York, 1998); James H. Merrell, Into the American Woods: Negotiators on
the Pennsylvania Frontier (New York, 1999); and Jean M. O’Brien, Dispossession
by Degrees: Indian Land and Identity in Natick, Massachusetts, 1650–1790 (New
York, 1997).
(b) immigrant populations
As to the introduced populations, the existing literature is copious. Fortunately
much of it has been summarized, evaluated, and synthesized in several essays:
Aaron S. Fogleman, “From Slaves, Convicts and Servants to Free Passengers:
The Transformation of Immigration in the Era of the American Revolution,”
Journal of American History 85, 1 (1998); Aaron S. Fogleman “Migrations to
the Thirteen British North American Colonies, 1700–1775: New Estimates,”
Journal of Interdisciplinary History 22, 4 (1992); James Horn, “British Diaspora:
Emigration from Britain, 1680–1815,” in Marshall, ed., The Eighteenth Century;
Christopher L.Tomlins, “Indentured Servitude in Perspective: European Migration
to the North American Mainland and the Composition of the Early American
Labor Force, 1600–1775,” in Catherine Matson, ed., The Economy of Early
America: New Directions (University Park, PA, 2005); and Christopher Tomlins,
“Reconsidering Indentured Servitude: European Migration and the Early
American Labor Force, 1600–1775,” Labor History 42, 1 (2001).
Particularly useful and influential works, both from the body of literature
discussed in these recent essays and beyond it, include the following: Richard
Archer, “New England Mosaic: A Demographic Analysis for the Seventeenth
Century,” William and Mary Quarterly, 3rd ser., 47, 4 (1990); Ira Berlin, Many
Thousands Gone: The First Two Centuries of Slavery in North America (Cambridge,
MA, 1998); Virginia Bernhard, “‘Men, Women and Children’ at Jamestown:
Population and Gender in Early Virginia, 1607–1610,” Journal of Southern History
58, 4 (1992), 599–618; Nicholas Canny, “English Migration into and
Across the Atlantic During the Seventeenth and Eighteenth Centuries,” in
Nicholas Canny, ed., Europeans on the Move: Studies on European Migration, 1500–
1800 (Oxford, 1994); David Cressy, Coming Over: Migration and Communication
Between England and New England in the Seventeenth Century (Cambridge, 1987);
Philip D. Curtin, The Atlantic Slave Trade: A Census (Madison, 1969); David
Eltis, The Rise of African Slavery in the Americas (New York, 2000); Georg Fertig,
“Transatlantic Migration from the German-Speaking Parts of Central Europe,
1600–1800: Proportions, Structures, and Explanations,” in Nicholas Canny,
ed., Europeans on the Move: Studies on European Migration, 1500–1800 (Oxford,
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1994); David Hackett Fischer, Albion’s Seed: Four British Folkways in America
(New York, 1989); Alison Games, Migration and the Origins of the English
Atlantic World (Cambridge, MA, 1999); Henry Gemery, “Disarray in the Historical
Record: Estimates of Immigration to the United States, 1700–1860,”
Proceedings of the American Philosophical Society 133, 2 (1989); Henry Gemery,
“Emigration from the British Isles to the NewWorld, 1630–1700: Inferences
from Colonial Populations,” Research in Economic History: A Research Annual
5 (1980); Henry Gemery, “European Emigration to North America, 1700–
1820: Numbers and Quasi-Numbers,” Perspectives in American History, new
ser., 1 (1984); Farley Grubb, “German Immigration to Pennsylvania, 1709 to
1820,” Journal of Interdisciplinary History 20, 3 (1990); James Horn, Adapting to
a New World: English Society in the Seventeenth-Century Chesapeake (Chapel Hill,
1994); McCusker & Menard, Economy of British America; Russell R. Menard,
“British Migration to the Chesapeake Colonies in the Seventeenth Century,” in
Lois Green Carr et al., eds., Colonial Chesapeake Society (Chapel Hill, 1988); Jim
Potter, “Demographic Development and Family Structure,” in Jack P. Greene
and J. R. Pole, eds., Colonial British America: Essays in the New History of the Early
Modern Era (Baltimore, 1984); Thomas L. Purvis, “The European Ancestry of
the United States Population, 1790,”William and Mary Quarterly, 3rd ser., 41,
1 (1984); Roger Thompson, Mobility and Migration: East Anglican Founders of
New England, 1629–1640 (Amherst, MA, 1994), 122–23;William Thorndale,
“The Virginia Census of 1619,” Magazine of Virginia Genealogy 33, 3 (1995);
and Marianne Wokeck, Trade in Strangers: The Beginnings of Mass Migration to
North America (University Park, PA, 1999).
Bernard Bailyn’s Voyagers to the West: A Passage in the Peopling of America on
the Eve of the Revolution (New York, 1986) helped renew general interest in
the demography of English colonizing. While conjectural on overall numbers,
it offers an extremely comprehensive analysis of specific elements of British
migration during the decade prior to the Revolution.
Law, Migration, and Labor Force Formation: Britain
The phenomena of migration and labor force formation that are dealt with
here primarily in a trans-Atlantic context have a crucial British backdrop. E.
A. Wrigley and R. S. Schofield, The Population History of England, 1541–1871
(London, 1981), is an indispensable analysis of English demography across the
entire period of North American colonizing. Work that is particularly useful
in establishing patterns and conditions of migration and labor force formation
internal to early modern Britain – social, economic, and political-legal –
include A. L. Beier, Masterless Men: The Vagrancy Problem in England, 1560–1640
(London, 1979); Peter Clark and David Souden, eds., Migration and Society in
Early Modern England (Totowa, NJ, 1987); Ann Kussmaul, Servants in Husbandry
in Early Modern England (Cambridge, 1981); Ann Kussmaul, A General View
of the Rural Economy of England, 1538–1840 (Cambridge, 1990); and Michael
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Maccarthy-Morrogh, The Munster Plantation: English Migration to Southern Ireland,
1583–1641 (Oxford, 1986). See also Joan Thirsk, ed., The Agrarian History
of England and Wales, IV, 1500–1640 (Cambridge, 1967). On migration from
the provinces to London and eventual trans-Atlantic migration from London,
see James P. Horn, “Servant Emigration to the Chesapeake in the Seventeenth
Century,” in Thad W. Tate and David L. Ammerman, eds., The Chesapeake in
the Seventeenth Century: Essays on Anglo-American Society (Chapel Hill, 1979).
For a fuller exploration of the general relationship between provincial British
economies and migration to North America, see Horn, Adapting to a NewWorld.
On the close identity of youth and servitude in Britain, in addition to the work
by Ann Kussmaul already cited, see Ilana Krausman Ben-Amos, Adolescence and
Youth in Early Modern England (New Haven, 1994); D. C. Coleman, “Labour
in the English Economy of the Seventeenth Century,” Economic History Review,
ser. 2, 8, 3 (1956); Paul Griffiths, Youth and Authority: Formative Experiences in
England, 1560–1640 (Oxford, 1996); and Keith Thomas, “Age and Authority
in Early Modern England,” Proceedings of the British Academy 62 (1976).
The police of mobility, particularly labor mobility, became a vital and continuing
component of British state action in the fourteenth century. See generally
Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American
Government (New York, 2005). For an analysis of the formation of national
institutions capable of policing labor mobility on a continuing basis, see Robert
C. Palmer, English Law in the Age of the Black Death, 1348–1381: A Transformation
of Governance and Law (Chapel Hill, 1993). The enforcement (and the
long-term effects of enforcement) varied, however, over time and place. Thus,
see Bertha Putnam, The Enforcement of the Statutes of Labourers During the First
Decade After the Black Death (New York, 1908) and L. R. Poos, “The Social
Context of Statute of Labourers Enforcement,” Law and History Review 1, 1
(1983). On the formation of the Statute of Artificers, see Stanley T. Bindoff,
“The Making of the Statute of Artificers,” in S. T. Bindoff et al., eds., Elizabethan
Government and Society: Essays Presented to Sir John Neale (London, 1961), 80–3,
and F. J. Fisher, “Influenza and Inflation in Tudor England,” Economic History
Review, 2nd ser., 18, 1 (1965). On its enforcement, seeWalter E. Minchinton,
ed., Wage Regulation in Pre-Industrial England (Newton Abbott, Devon, 1972).
Perhaps the most thorough study of enforcement is Michael F. Roberts, “Wages
andWage-Earners in England: The Evidence of theWage Assessments, 1563–
1725,” unpublished Ph.D. thesis, Oxford University, 1981, although see also
Margaret G. Davies, The Enforcement of English Apprenticeship: A Study in Applied
Mercantilism, 1563–1642 (Cambridge, MA, 1956). The most recent study of
the general regime of labor regulation and of master and servant law is Douglas
Hay and Paul Craven, eds., Masters, Servants, and Magistrates in Britain and the
Empire, 1562–1955 (Chapel Hill, 2004). As their title suggests, this book takes
an expansive view of labor force formation across the full panoply of the English
colonizing enterprise.
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On the general structure of state and society in early modern England,
see Steve Hindle, The State and Social Change in Early Modern England, 1550–
1640. Basingstoke, 2002) and Keith Wrightson, English Society, 1580–1680
(New Brunswick, NJ, 1982). For extremely suggestive analyses of the civic
consequences of state regulatory initiatives, see 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) and
Margaret Somers, “Rights, Relationality and Membership: Rethinking the
Making and Meaning of Citizenship,” Law & Social Inquiry 19, 1 (1994).
Migration and Labor Force Formation: Anglophone America
In the early American case, the study of migration, labor force formation, and
law, particularly the law of “bound” labor, overlaps considerably. The point is
made by the title of the classic and still very useful study of early American labor
procurement by Abbot Emerson Smith, Colonists in Bondage; White Servitude and
Convict Labor in America, 1607–1776 (Chapel Hill, 1947), published only a year
after the other classic of the literature, Richard B. Morris, Government and Labor
in Early America (New York, 1946). In the half-century since the time of Morris
and Smith, much work has been undertaken, though the focus has largely been
on the economic and social history of labor. The revival of legal history in the
area dates from the early 1990s (see below).
For an extremely thorough synthesis of migration and labor force formation
in the mainland colonies, see DavidW. Galenson, “The Settlement and Growth
of the Colonies: Population, Labor and Economic Development,” in Engerman
and Gallman, eds., The Cambridge Economic History of the United States: Vol. 1.
Galenson has also authored White Servitude in Colonial America: An Economic
Analysis (Cambridge, 1981), itself now something of a classic. See also his
“The Rise and Fall of Indentured Servitude in the Americas: An Economic
Analysis,” Journal of Economic History 44, 1 (1984). Other essential works on
labor procurement and labor force formation are as follows: Terry L. Anderson
and Robert P. Thomas, “The Growth of Population and Labor Force in the
17th-Century Chesapeake,” Explorations in Economic History 15 (1978); Richard
S. Dunn, “Servants and Slaves: The Recruitment and Employment of Labor,”
in Jack P. Greene and J. R. Pole, eds., Colonial British America: Essays in the New
History of the Early Modern Era (Baltimore, 1984); A. Roger Ekirch, Bound for
America: The Transportation of British Convicts to the Colonies, 1718–1775 (Oxford,
1987); David Eltis, “Labor and Coercion in the English Atlantic World from
the Seventeenth to the Early Twentieth Century,” Slavery And Abolition 14, 1
(1993), 207–26; David Eltis, “Seventeenth Century Migration and the Slave
Trade: The English Case in Comparative Perspective,” in Jan Lucassen and
Leo Lucassen, eds., Migration, Migration History, History: Old Paradigms and
New Perspectives (Berne, 1997); Sharon Salinger, “To Serve Well and Faithfully”:
Labor and Indentured Servants in Pennsylvania, 1682–1800 (Cambridge, 1987);
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Mary Schweitzer, Custom and Contract: Household, Government and the Economy
in Colonial Pennsylvania (New York, 1987); Robert P. Thomas and Terry L.
Anderson, “White Population, Labor Force and Extensive Growth of the New
England Economy in the Seventeenth Century,” Journal of Economic History 33,
3 (1973); and Lawrence W. Towner A Good Master Well Served: Masters and
Servants in Colonial Massachusetts, 1620–1750 (New York, 1998).
Farley Grubb has been a particularly active scholar in this area. The work
cited here is but a sampling of his many articles. See Farley Grubb, “The
Auction of Redemptioner Servants, Philadelphia, 1771–1804: An Economic
Analysis,” Journal of Economic History 47, 3 (1988), 583–602; Farley Grubb,
“The Disappearance of Organized Markets for European Immigrant Servants
in the United States: Five Popular Explanations Reexamined,” Social Science
History 18, 1 (1994), 1–30; Farley Grubb, “Fatherless and Friendless: Factors
Influencing the Flow of English Emigrant Servants,” Journal of Economic History
52 (1992), 85–108; Farley Grubb, “Immigrant Servant Labor: Their Occupational
and Geographic Distribution in the Late Eighteenth-Century Mid-
Atlantic Economy,” Social Science History 9, 3 (1985), 249–76, at 251–5; Farley
W. Grubb, “Immigration and Servitude in the Colony and Commonwealth
of Pennsylvania: A Quantitative and Economic Analysis,” unpublished Ph.D.
thesis, University of Chicago, 1984; Farley Grubb, “The Long-Run Trend in
the Value of European Immigrant Servants, 1654–1831: New Measurements
and Interpretations,” Research in Economic History 14 (1992), 167–240; Farley
Grubb, “TheTransatlantic Market for British Convict Labor,” Journal of Economic
History 60, 1 (2000), 94–122; and Farley Grubb and Tony Stitt, “The Liverpool
Emigrant Servant Trade and the Transition to Slave Labor in the Chesapeake,
1697–1707: Market Adjustments to War,” Explorations in Economic History 20
(1994), 1–31.
Onmatters of social and economic opportunity, see Lois Green Carr, “Emigration
and the Standard of Living: The Seventeenth Century Chesapeake, Journal
of Economic History 52, 2 (1992); Lois Green Carr and Russell R. Menard, “Immigration
and Opportunity: The Freedman in Early Colonial Maryland,” in Thad
W. Tate and David L. Ammerman, eds., The Chesapeake in the Seventeenth Century:
Essays on Anglo-American Society (New York, 1979); Lois Green Carr and Lorena
S. Walsh, “The Standard of Living in the Colonial Chesapeake,” in “Forum:
Toward a History of the Standard of Living in British North America,”William
and Mary Quarterly, 3rd ser., 45, 1 (1988), 135–59; Russell R. Menard, “From
Servant to Freeholder: Status Mobility and Property Accumulation in Seventeenth
Century Maryland,” William and Mary Quarterly, 3rd ser., 30, 1 (1973),
37–64; Russell R. Menard, “From Servants to Slaves: The Transformation of
the Chesapeake Labor System,” Southern Studies 16 (1977), 355–90; Russell R.
Menard, “Immigrants and Their Increase: The Process of Population Growth in
Early Colonial Maryland,” in Aubrey C. Land et al., eds., Law, Society and Politics
in Early Maryland (Baltimore, 1977), 88–110; and Lorena Walsh, “Servitude
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and Opportunity in Charles County, Maryland, 1658–1705,” in Land et al.,
eds., Law, Society and Politics in Early Maryland.
For a variety of excellent studies of the social and economic structure of
work in early America, see Stephen Innes, ed., Work and Labor in Early America
(Chapel Hill, 1988). Other, more general studies that are nevertheless of crucial
importance to our understanding of migration, population, work, and labor
in the mainland colonies are Edmund S. Morgan, American Slavery, American
Freedom: The Ordeal of Colonial Virginia (New York, 1975); Jeanne M. Boydston,
Home and Work: Housework, Wages, and the Ideology of Labor in the Early
Republic (New York, 1990); Kathleen M. Brown, Good Wives, Nasty Wenches,
and Anxious Patriarchs: Gender, Race and Power in Colonial Virginia (Chapel Hill,
1996); Stephen Innes, Creating the Commonwealth: The Economic Culture of Puritan
New England (New York, 1995); Jacqueline Jones, American Work: Four
Centuries of Black and White Labor (New York, 1998); James T. Lemon, The
Best Poor Man’s Country: A Geographical Study of Early Southeastern Pennsylvania
(Baltimore, 1972); Gloria L. Main, Tobacco Colony: Life in Early Maryland,
1650–1720 (Princeton, 1982); Samuel McKee, Labor in Colonial New York:
1664–1776 (New York, 1935); Philip D. Morgan, Slave Counterpoint: Black
Culture in the Eighteenth-Century Chesapeake and Lowcountry (Chapel Hill 1998);
Winifred Rothenberg, From Market-Places to a Market Economy: The Transformation
of Rural Massachusetts, 1750–1850 (Chicago, 1992), 181, 182–3; Laurel
Thatcher Ulrich, “Martha Ballard and Her Girls:Women’sWork in Eighteenth
Century Maine,” in Innes, ed.,Work and Labor, 70–105; Laurel Thatcher Ulrich,
Good Wives: Image and Reality in the Lives of Women in Northern New England,
1650–1750 (New York, 1982); Daniel Vickers Farmers and Fishermen: Two Centuries
of Work in Essex County, Massachusetts, 1630–1850 (Chapel Hill, 1994);
and Peter H.Wood, Black Majority: Negroes in Colonial South Carolina from 1670
Through the Stono Rebellion (New York, 1975).
Finally, on transiency in early America – a subject awaiting sustained treatment
– see Ruth Wallis Herndon, Unwelcome Americans: Living on the Margin
in Early New England (Philadelphia, 2001), which builds on the seminal
work of Douglas Lamar Jones, “The Strolling Poor: Transiency in Eighteenth-
Century Massachusetts,” Journal of Social History 8 (1975) and Douglas Lamar
Jones,Village and Seaport, Migration and Society in Eighteenth-Century Massachusetts
(Hanover, NH, 1981). See also Christine Heyrman, Commerce and Culture: The
Maritime Communities of Colonial Massachusetts, 1690–1750 (New York, 1984).
Law, Migration, and Labor Force Formation in Early America
Notwithstanding the publication of Morris’s Government and Labor in 1946,
interest in the law of work and labor in the colonies – indeed, interest in colonial
legal history in general – was not marked for some considerable time. The
title of Stephen Innes’ excellent 1988 collection of essays, Work and Labor in
Early America, pays homage to Morris’s Government and Labor in Early America
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from forty years before, but in omitting governance (a.k.a. “the state”) it emphasized
the predominance of social history over legal. Still, new interest in early
American legal history was beginning to pick up in the 1970s. Research specific
to the history of the period’s labor law followed on, ten to fifteen years
later, often supplemented by or supplementing concentration on the nineteenth
century. For general studies, see Jonathan A. Bush, “Free to Enslave: The Foundations
of Colonial American Slave Law,” Yale Journal of Law and Humanities
5 (1993); Marc Linder, The Employment Relationship in Anglo-American Law: A
Historical Perspective (Westport, CT, 1989); David Montgomery, CitizenWorker:
The Experience of Workers in the United States with Democracy and the Free Market
During the Nineteenth Century (Cambridge, 1993); Thomas D. Morris, Southern
Slavery and the Law, 1619–1860 (Chapel Hill, 1996); Karen Orren, Belated
Feudalism: Labor, the Law, and Liberal Development in the United States (Cambridge,
1991); Robert J. Steinfeld, The Invention of Free Labor: The Employment
Relation in English and American Law and Culture, 1350–1870 (Chapel Hill,
1991); Christopher L. Tomlins, Law, Labor and Ideology in the Early American
Republic (Cambridge, 1993); and Christopher Tomlins, “Early British America,
1585–1830,” in Craven and Hay, eds., Masters, Servants, and Magistrates.
Although outside the colonial era, both Amy Dru Stanley, From Bondage to
Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation
(New York, 1998), and Robert J. Steinfeld, Coercion, Contract and Free Labor in
the Nineteenth Century (New York, 2001), are informative and helpful.
For studies of more specific locales and subjects, see Mary S. Bilder, “The
Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce,”
Missouri Law Review 61 (1996); Warren M. Billings, “The Law of
Servants and Slaves in Seventeenth Century Virginia,” Virginia Magazine of
History and Biography 99, 1 (1991); Alfred L. Brophy, “Law and Indentured
Servitude in Mid-Eighteenth Century Pennsylvania,” Willamette Law Review
28, 1 (1991); Christine Daniels, “‘Liberty to Complaine’: Servant Petitions
in Colonial Anglo-America,” in Christopher Tomlins and Bruce H. Mann,
eds., The Many Legalities of Early America (Chapel Hill, 2001), 219–49; David
Barry Gaspar, “‘Rigid and Inclement’: Origins of the Jamaica Slave Laws of
the Seventeenth Century,” in Tomlins and Mann, eds., Many Legalities, 78–
96; and Farley Grubb, “The Statutory Regulation of Colonial Servitude: An
Incomplete-Contract Approach,” Explorations in Economic History 37 (2000),
42–75.
On legal mechanisms specific to the police of mobility, see Sally Hadden,
Slave Patrols: Law and Violence in Virginia and the Carolinas (Cambridge, MA,
2001); Kunal Parker, “State, Citizenship, andTerritory: The Legal Construction
of Immigrants in Antebellum Massachusetts,” and “Disaggregating Citizenship,”
both in Law and History Review 19, 3 (2001), 583–644, and 655–60; and
Robert J. Steinfeld, “Subjectship, Citizenship, and the Long History of Immigration
Regulation,” Law and History Review 19, 3 (2001), 645–54. See also
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Bruce H. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence
(Cambridge, MA, 2002), and Dubber, The Police Power.
Finally, for a sampling of work and opinion on the general role of law in
the process of colonizing the mainland, see David Grayson Allen, In English
Ways: The Movement of Societies and the Transferal of English Local Law and Custom
to Massachusetts Bay in the Seventeenth Century (Chapel Hill, 1981); Daniel R.
Coquillette, “Radical Lawmakers in Colonial Massachusetts: The ‘Countenance
of Authoritie’ and the Lawes and Libertyes,” New England Quarterly 67, 2
(1994), 179–211; John L. Comaroff, “Colonialism, Culture and the Law: A
Foreword,” Law and Social Inquiry 26, 2 (2001); George L. Haskins, Law and
Authority in Early Massachusetts: A Study in Tradition and Design (New York,
1968); Daniel J. Hulsebosch, “The Ancient Constitution and the Expanding
Empire: Sir Edward Coke’s British Jurisprudence,” Law and History Review 21,
3 (2003); Engin Isin, Being Political: Genealogies of Citizenship (Minneapolis,
2002); David Konig, Law and Society in Puritan Massachusetts: Essex County,
1629–92 (Chapel Hill, 1979); Christopher Tomlins, “The Legal Cartography
of Colonization, the Legal Polyphony of Settlement: English Intrusions on
the American Mainland in the Seventeenth Century,” Law and Social Inquiry
26, 2 (2001); Christopher Tomlins, “The Many Legalities of Colonization: A
Manifesto of Destiny for Early American Legal History,” and Bruce H. Mann,
“The Death and Transfiguration of Early American Legal History,” both in
Tomlins and Mann, eds., Many Legalities.
chapter 8: the fragmented laws of slavery
sally e. hadden
(1) General
The universal quality of slavery in the early modern period has been the subject
of many excellent works, including Robin Blackburn, The Making of NewWorld<,BR>Slavery: From the Baroque to the Modern, 1492–1800 (London, 1997); David Brion
Davis, The Problem of Slavery inWestern Culture (Ithaca, 1966) and its companion,
The Problem of Slavery in the Age of Revolution, 1770–1823 (2nd ed., New York,
1998); and more recently, David Brion Davis, Inhuman Bondage: The Rise and
Fall of Slavery in the New World (New York, 2006).
Comparative works about slavery are fairly common, though fewer of them
address law beyond a token nod at the outset. One of the first broadly comparative
works that addressed legal issues – though at a very simple level –
was Frank Tannenbaum’s Slave and Citizen: The Negro in the Americas (New
York, 1963). Later well-known works that followed in this tradition include
Carl Degler, Neither Black nor White: Slavery and Race Relations in Brazil and
the United States (New York, 1971; repr. ed. Madison, 1986), and Herbert S.
Klein, Slavery in the Americas: A Comparative Study of Virginia and Cuba (Chicago,
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1967). The nature of a slave’s legal and social death in a multiplicity of societies,
ancient to modern, has been explored by Orlando Patterson, Slavery and
Social Death: A Comparative Study (Cambridge, 1982). Few full-length works,
however, have addressed the nature of slave law on a comparative scale, keeping
their focus on law and the western hemisphere. AlanWatson, Slave Law in
the Americas (Athens, GA, 1989) is a rare exception; Lauren Benton, Law and
Colonial Cultures: Legal Regimes in World History, 1400–1900 is another work
that, among other topics, considers the law of slavery through a comparison
of jurisdictional contexts. Articles by various authors in two special issues of
the 1996 Cardozo Law Review (May 1996, vol. 17, 6 and November 1996,
vol. 18, 2) addressed variations among world slave regimes, with reference to
new scholarship and legal historiography. An overview essay soon to be published
is Sue Peabody, “Slave Law in the AtlanticWorld Before 1804,” in David
Eltis and Stanley Engerman, eds., World History of Slavery. Vol. 3: 1420–1804
(Cambridge, forthcoming).
The scale and scope of African enslavement have been studied by many scholars
since the 1960s, when quantitative methods swept the historical discipline.
The original path-breaking work on the size of African slave trade was published
by Philip Curtin, The Atlantic Slave Trade: A Census (Madison, WI, 1969).
Since then, many works have refined his numbers, but none has overturned the
basic premises he suggested. See Herbert S. Klein, The Atlantic Slave Trade
(Cambridge, 1999) and Paul E. Lovejoy, Transformations in Slavery: A History of
Slavery in Africa (2nd ed., Cambridge, 2000). The most detailed quantitative
research can now be done using a database of nearly 30,000 slave trading voyages
completed between 1595 and 1866, which contains information on the
numbers of slaves transported across the Atlantic, geographic regions visited,
owners, captains, ship characteristics, and transatlantic connections made by
voyage. Compiled at the W. E. B. DuBois Center of Harvard University, the
database was the result of collaboration by David Eltis, Stephen D. Behrendt,
David Richardson, and Herbert S. Klein, which produced The Trans-Atlantic
Slave Trade [computer file]: A Database on CD-ROM (Cambridge, 1999). Analysis
of some of the more interesting trends revealed by the database has been published
by David Eltis, David Richardson, and Stephen D. Behrendt, “Patterns
in the Transatlantic Slave Trade, 1662–1867,” in Maria Diedrich, Henry Louis
Gates, Jr., and Carl Pedersen, eds., Black Imagination and the Middle Passage
(New York, 1999). Less quantitative-driven scholarship that still relies on contrasting
scales of enslavement can be found in Ira Berlin, Many Thousands Gone:
the First Two Centuries of Slavery in North America (Cambridge, 1998), which
explains the transitions each region experienced depending on whether it was a
society with slaves or a slave society (and, thus, fully dependent economically,
socially, and culturally on the presence of slaves).
Studies of Native Americans and their enslavement following the arrival of
Europeans in the New World have been less plentiful. One general work that
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includes some discussion of the legal ramifications, including slavery, is Susan
Kellogg, Law and the Transformation of Aztec Culture, 1500–1700 (Norman,
OK, 1995). Many more books have focused on land dispossession or have been
written about the types of labor performed or the extractive economic quality
of slave labor in Central and South America. Very few touch on slave law, and
typically they have only approached the issue from a consideration of European
legal norms; Native conceptions of slavery are more likely to be discussed as
custom rather than law. For extensive treatment of native legal ideas, see Bruce
E. Johansen, ed., The Encyclopedia of Native American Legal Tradition (Westport,
1998). Rarely are native peoples ascribed any degree of agency when it came
to matters of enslavement. More often, they are treated as objects of other
cultural, legal, or linguistic systems. See RobertWilliams, The American Indian
in Western Legal Thought: The Discourses of Conquest (Oxford, 1990), and David
O’Rourke, How America’s First Settlers Invented Chattel Slavery: Dehumanizing
Native Americans and Africans with Language, Laws, Guns, and Religion (New
York, 2004).
Regional studies of the enslavement of Native Americans in North America
have begun to appear in recent years. Allan Gallay’s The Indian Slave Trade: The
Rise of the English Empire in the American South, 1670–1717 (New Haven, 2002)
was one of the first to suggest that the numbers of Native Americans placed
into bondage in the northern hemisphere may be much higher than previously
suspected. His treatment of intertribal warfare resulting in native bondage
and exportation for profit is eminently readable. Margaret Newell is presently
examining New England laws and the social effects of Native American slavery
in that region (‘The Drove of Adam’s Degenerate Seed’: Indian Slavery in New
England, forthcoming). James F. Brooks’s prize-winning book, Captives and
Cousins: Slavery, Kinship, and Community in the Southwest Borderlands (Chapel Hill,
2002) provides some suggestions about the contrasting dynamics of Native
American slavery among Spanish, Mexican, and American societies prior to the
American Civil War, though it has less to say about law specifically. Charles
Cutter’s The Legal Culture of Northern New Spain, 1700–1810 (Albuquerque,
1995) addresses the difficult questions arising from conflicts between European
and native expectations about law, when clashing legal cultures confronted the
subject of slavery, though his work is more narrowly cast than that of Brooks.
See alsoWoodrow Borah, Justice by Insurance: The General Indian Court of Colonial
Mexico and the Legal Aides of the Half-Real (Berkeley, 1983).
(2) Islamic Slave Law and African, English, and Spanish Legal Traditions
Few studies of slave law and Islam have been translated into English, leaving
a narrow band of scholarship in this field open for non-Arabic-speaking
researchers who wish to know more. On the relation between slavery and Islam,
a good starting point is Humphrey J. Fisher, Slavery in the History of Muslim
Black Africa (New York, 2001); additionally, see John Hunwick, “Islamic Law
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and Polemics over Race and Slavery in North and West Africa (16th–19th
Century),” Princeton Papers: Interdisciplinary Journal of Middle Eastern Studies 7
(1999), 43–68. For more detailed work, one can consult Bernard Barbour and
Michelle Jacobs, “The Mi’raj: a Legal Treatise on Slavery by Ahmad Baba,”
in John R. Willis, ed., Slaves and Slavery in Muslim Africa, Vol. I: Islam and the
Ideology of Enslavement (London, 1985), which includes a complete Arabic text of
the legal treatise under discussion with an English translation. Most works on
slavery and Muslim beliefs focus on Northern Africa, not the region of the western
coast, from which the majority of slaves were exported to the NewWorld.
Among those works about North Africa, Ahmad Alawad Sikainga, “Slavery
and Muslim Jurisprudence in Morocco,” in Suzanne Miers and Martin Klein,
eds., Slavery and Colonial Rule in Africa (London, 1998) is well worth consulting
(reprinted in Slavery and Abolition 19, 2 (1998), 57–72). The most recent
statistical data on Christian slaves working in North Africa, with references to
their legal status and working conditions, can be found in Robert C. Davis,
Christian Slaves, Muslim Masters: White Slavery in the Mediterranean, the Barbary
Coast, and Italy, 1500–1800 (New York, 2003). Islamic law, like English or
American common law, is neither immune to the passage of time nor the effects
of local custom. Lawrence Rosen, The Justice of Islam (Oxford, 2000) gives a fine
overview of the effects of local variation on Islamic law as seen through the eyes
of a legal anthropologist. Though the examples he uses come from modernday
North Africa, the principles he suggests that underlie Islamic justice
could well have application to the variability of Islamic slave law in an earlier
period.
On slavery in Western Africa, several new synthetic works have appeared
recently, although they have limited references to slave law specifically. Patrick
Manning, Slavery and African Life: Occidental, Oriental, and African Slave Trades
(Cambridge, 1990); Joseph C. Miller, Way of Death: Merchant Capitalism and
the Angolan Slave Trade, 1730–1830 (Madison, WI, 1988); and Paul Lovejoy,
Transformations in Slavery: A History of Slavery in Africa (2nd ed., Cambridge
2000) are among the best that addressWest African slavery. Research on specific
groups inWest African that were heavily represented in the slave trade, like the
Igbo, has not slowed since the 1960s, though most has a heavy anthropological
bent. See G. T. Basden, Niger Ibos (New York, 1966); Victor Uchendu, The Igbo
of Southeast Nigeria (New York, 1965); and Suzanne Miers and Igor Kopytoff,
eds., Slavery in Africa: Historical and Anthropological Perspectives (Madison, 1977).
On slave law in this region, see Robin Law, “Legal and Illegal Enslavement in
West Africa, in the Context of the Trans-Atlantic Slave Trade” in Toyin Falola,
ed., Ghana in Africa and the World: Essays in Honor of Adu Boahen (Trenton,
2003).
In Europe, there were several competing legal traditions with regard to unfree
persons that ultimately saw some degree of transplantation to the NewWorld.
For England, no single source exists giving the law of bondage as it related
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to whites or blacks in the late medieval or early modern periods. A general
overview on villeinage and slavery can be found in J. H. Baker, An Introduction
to English Legal History (4th ed., Bath, 2002), as part of his larger discussion
of the status and liberties of persons, and in his essay “Personal Liberty under
the Common Law of England, 1200–1600,” in R. W. Davis, ed., The Origins
of Modern Freedom in the West (Stanford, 1995). See also J. Hatcher, “English
Serfdom and Villeinage,” Past and Present 90 (1981), 1–39. A crucial source
text on the Spanish law of slavery is Robert Burns, S. J., ed., Las Siete Partidas,
5 vols. (Philadelphia, 2001), particularly volume IV, which contains Titles 21
and 22 relating directly to slaves. On the Spanish tradition of coartac´ıon, see
Herbert Aimes, “Coartac´ıon: A Spanish Institution for the Advancement of
Slaves and Freedmen,” The Yale Review 17 (1908–09), 412–31. On the biblical
tradition of slavery, as it was received by Christians in Western Europe and
then applied to Africans, see David Brion Davis, Slavery and Human Progress
(New York, 1984) and Winthrop Jordan, White over Black: American Attitudes
Towards the Negro, 1550–1812 (Chapel Hill, 1968).
(3) Slave Law in Caribbean and Central and South American Colonies
Each group that colonized the NewWorld approached the question of slavery
from slightly different starting points. A collection of the statutes and case law
regarding slavery in the Caribbean, Brazil, England, the United States, and
Spanish America is currently in production (Sue Peabody and Keila Grinberg,
Slavery, Freedom and the Law in the AtlanticWorld [New York, 2007). Scholarship
on slavery and the French colonies has advanced significantly in the past few
years, moving the field beyond early texts like Lucien Paytraud, L’Esclavage aux
Antilles Fran¸caises avant 1789 d’apr`es des documents in´edits des Archives coloniales
ed. E´mile De´sormeaux (Paris, 1897; repr. ed. Paris, 1973) or Gaston Martin,
Histoire de l’Esclavage aux Colonies Fran¸caises (Paris, 1948; repr. ed. Brionne,
1978). A full text of the Code Noir (Louis Sala-Molins, Le Code Noir ou le calvaire
de Canaan, Paris, 1987) appeared in the 1980s with notes and commentary. An
in-depth study of its compilers appeared in the 1990s: Vernon Palmer, “The
Origins and Authors of the Code Noir,” in Judith K. Schafer and Warren M.
Billings, eds., An Uncommon Experience: Law and Judicial Institutions in Louisiana,
1803–2003 (Lafayette, 1997). Sue Peabody’s ‘There are No Slaves in France’: The
Political Culture of Race and Slavery in the Ancien Regime (New York, 1996)
reexamined the question of slavery as it was known in France during this
period.
On the law of slavery among the Portuguese and particularly their Brazilian
colony, consult Jos´e Joaquim da Cunha de Azeredo Coutinho, Concordˆancia das
leis de Portugal e das bulas pontif´ıcias, das quais umas permitem a escravid˜ao dos pretos
da Africa e outras pro´ıbem a escravid˜ao dos indios do Brazil (reprint, Rio de Janeiro,
1988), and more generally A. J. R. Russell-Wood, Black Man in Slavery and
Freedom in Colonial Brazil (London, 1982) and Kathleen Higgins, ‘Licentious
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Liberty’ in a Brazilian Gold-mining Region: Slavery, Gender and Social Control in
Eighteenth-Century Sabar´a (University Park, 1999). On the Dutch, see Cornelis
Goslinga, The Dutch in the Caribbean and in the Guianas, 1680–1791, ed. Maria
J. L. van Yperen (Assen, Netherlands, 1985).
Any examination of slave laws among the English-settled islands of the
Caribbean must begin with Elsa Goveia, The West Indian Slave Laws of the 18th
century (Barbados, 1970). The idea of “l(fā)egal borrowing” between slaveholding
colonies has been explored by Bradley Nicholson, “Legal Borrowing and the
Origins of Slave Law in the British Colonies,” American Journal of Legal History
38, 1 (1994), 38–54; David Barry Gaspar, “With a Rod of Iron: Barbados Slave
Laws as a Model for Jamaica, South Carolina, and Antigua, 1661–1697,” in
Darlene Clark Hine and Jacqueline McLeod, eds., Crossing Boundaries: Comparative
History of Black People in Diaspora (Bloomington: Indiana University Press,
1999); and more broadly by Alan Watson in Legal Transplants: An Approach
to Comparative Law (2nd ed., Athens, GA, 1993). On slave law in particular
islands, consult Howard Fergus, “The Early Laws of Monserrat (1668–1680):
The Legal Schema of a Slave Society,” Caribbean Quarterly 24, 1–2 (1978), 34–
43; Mindie Lazarus Black, Legitimate Acts and Illegal Encounters: Law and Society
in Antigua and Barbuda (Washington, 1994); David Barry Gaspar, “Rigid and
Inclement: Origins of the Jamaican Slave Laws of the Seventeenth Century,” in
Christopher Tomlins and Bruce Mann, eds., The Many Legalities of Early America
(Chapel Hill, 2001); and Richard Dunn, Sugar and Slaves: The Rise of the Planter
Class in the English West Indies, 1624–1713 (Chapel Hill, 1972).
Source texts for Barbadian slave laws appear in Acts and Statutes of the Island
of Barbadoes. Made and Enacted since the Reducement of the Same, unto the Authority
of the Common-wealth of England (London, [1654]);William Rawlin, comp., The
Laws of Barbados, Collected in One Volume (London, 1699); Acts of Assembly, Passed
in the Island of Barbadoes, From 1648, to 1718 (London, 1721); and Richard
Hall, comp., Acts Passed in the Island of Barbados. From 1643 to 1762, inclusive
(London, 1764). As some laws were repealed, allowed to lapse, or replaced, all
editions must be consulted to discover the true dimensions of Barbadian slave
law in this critical period. No single volume contains a comprehensive list of
all Barbadian laws; in addition to these printed volumes, one must also consult
the Public Record Office in London for individual laws transmitted back to
England that were not included in the various compilations.
Slave law from Spain’s Caribbean and mainland colonies was only partially
collected in the Recopilaci´on de las leyes de los reinos de los Indias, 4 vols. (Madrid,
1841; reprint, Madrid, 1973). Its application in specific colonies has been
explored by Manuel Lucena, Leyes para esclavos: El ordenamiento jur´ıdico sobre la
condici´on, tratamiento, defense y repressi´on de los esclavos en las colonias de la Am´erica
espa˜nola (Madrid, 2000); Norman Meiklejohn, “The Implementation of Slave
Legislation in Eighteenth-Century New Granada,” in Robert B. Toplin, ed.,
Slavery and Race Relations in Latin America(Westport, 1974); and Carlos Aguirre,
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“Working the System: Slaves and Courts in Lima, Peru,” in Darlene Clark Hine
and Jacqueline McLeod, eds., Crossing Boundaries: Comparative History of Black
People in Diaspora (Bloomington, 1999).
(4) Slave Law in the North American Colonies
The transmission of Spanish law to colonial Louisiana, particularly slavery, has
been explored by Hans Baade, “The Law of Slavery in Spanish Louisiana, 1769–
1803,” in EdwardW. Haas, ed., Louisiana’s Legal Heritage (Pensacola, 1983) and
Gilbert Din, Spaniards, Planters, and Slaves: The Spanish Regulation of Slavery in
Louisiana, 1763–1803 (College Station, 1999). More contextual studies of the
same, incorporating added material on women and free blacks, are Thomas
Ingersoll’s Mammon and Manon in Early New Orleans: the First Slave Society in
the Deep South, 1718–1819 (Knoxville, 1999) and Jennifer Spear, “Colonial
Intimacies: Legislating Sex in French Louisiana,” William and Mary Quarterly,
3rd ser., 60 (2003), 75–98.
Source texts for the two earliest colonial slave codes can be found in Thomas
Cooper and David J. McCord, eds., The Statutes at Large of South Carolina
(Columbia, 1836–1841), particularly vol. 7, and William W. Hening, ed.,
The Statutes at Large; being a collection of all the laws of Virginia, from the first session
of the Legislature in 1619 (New York, 1819–1823; reprint Charlottesville,
1969), particularly vols. 1–3. A full list of all mainland colony slave codes can
be found in William Wiecek, “The Statutory Law of Slavery and Race in the
Thirteen Mainland Colonies of British America,” William and Mary Quarterly,
3rd ser., 34 (1977), 258–80.
An early effort to analyze slave law in the colonies was A. Leon Higginbotham,
In the Matter of Color: Race and the American Legal Process: The Colonial
Period (New York, 1978), although it has been surpassed by later studies
that were more detailed or nuanced. Other early works that scrutinized South
Carolina or Virginia slave law, accounting for social and economic context,
include Peter Wood, Black Majority: Negroes in Colonial South Carolina from
1670 Through the Stono Rebellion (New York, 1974), and Edmund S. Morgan’s
American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York,
1975). These path-breaking books have been augmented by more recent books
that have only indirectly addressed the important role of slave statutes and case
law. One direct challenge to Morgan’s interpretation on the development of
slave law in Virginia is Anthony Parent, Foul Means: The Formation of a Slave
Society in Virginia, 1660–1740 (Chapel Hill, 2003). A lengthy work intended
to survey all developments in slave law, but that ultimately focuses on case law
developments in a broad brush fashion, giving less attention to the early period,
is Thomas D. Morris, Southern Slavery and the Law, 1619–1860 (Chapel Hill,
1996). A document-rich work that attempts to show the interplay between
case law and statutes isWarren Billings, ed., The Old Dominion in the Seventeenth
Century: A Documentary History of Virginia, 1606–1689 (Chapel Hill, 1975).
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See also his critical article on the Key case: Warren Billings, “The Cases of
Fernando and Elizabeth Key: A Note on the Status of Blacks in Seventeenthcentury
Virginia,” William and Mary Quarterly, 3rd ser., 30 (1973), 467–74.
Philip J. Schwarz, Twice Condemned: Slaves and the Criminal Laws of Virginia,
1705–1865 (Baton Rouge, LA, 1988), is the best work on slaves who were
convicted of crimes and how a colony, or later state, disposed of those slaves
through execution or transportation. A briefer work by Schwarz, Slave Laws
in Virginia (Athens, GA, 1999), is actually less comprehensive than its title
implies, but raises important questions about the need for future scholarship
to consider the perspective of enslaved persons brought before a European-based
justice system for trial.
Slave law in Virginia and South Carolina has attracted the greatest amount
of scholarly scrutiny, although other colonies have had research conducted
on their slave laws from time to time. Typically, these works have cast their
nets more widely than just slave law, like Donna Spindel, Crime and Society
in North Carolina, 1663–1776 (Baton Rouge, LA, 1989), and Gary Nash,
Forging Freedom: The Formation of Philadelphia’s Black Community, 1720–1840
(Cambridge, 1988). The most detailed work often highlights comparisons
between the criminal law as applied to free and slave persons and can often be
found in doctoral or master’s theses: see, for example, Glenn McNair, “Justice
Bound: Aframericans, Crime, and Criminal Justice in Georgia, 1751–1865,”
Ph.D. thesis, Emory University, 2001, and James H. Brewer, “An Apocalypse
on Slavery: The Story of the Negro Slave in the Lower Cape Fear Region of
North Carolina,” Ph.D. thesis, University of Pittsburgh, 1949. Traditionally,
the majority of these works were about the colonies that later became part of the
antebellum South’s plantation regime. Since the 1960s, however, more works
have begun to address slavery and slave law in the Northeast or mid-Atlantic
region. Slave law in New York has attracted numerous scholars, such as Ira
Berlin and Leslie M. Harris, eds., Slavery in New York (New York, 2005), and
Leslie M. Harris, In the Shadow of Slavery: African Americans in New York City,
1626–1863 (Chicago, 2003). Early classics include Edgar McManus, A History
of Negro Slavery in New York (Syracuse, 1966), and McManus, Black Bondage
in the North (Syracuse, 1973). Following a 2004 conference on the subject of
New England slavery, the Colonial Society of Massachusetts has a forthcoming
volume in its publication series that will include a few articles relating to slave
law. The power of narrower historical events to create great change to slave law
has been explored by Peter C. Hoffer, The Great New York Conspiracy of 1741:
Slavery, Crime, and Colonial Law (Lawrence, 2003).
Original source texts of colonial slave law outside the South can be found
via the Early State Records microfilm series, but they are scattered among all
legislative topics and poorly indexed: Library of Congress, Microfilm Collection
of Early State Records, Prepared by the Library of Congress in Association with the
University of North Carolina, comp. William Sumner Jenkins (Washington,
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1950). A paper index, A guide to the Microfilm Collection of Early State Records,
was published by Lillian Hamrick (Washington, 1950). This same series can be
used to track slave laws from the colonial period into the post-Revolutionary
era. Print versions of colonial slave laws are frequently inadequate, given space
limitations that publishers often impose. See the too-brief Oscar R.Williams,
African Americans and Colonial Legislation in The Middle Colonies (New York,
1998). For the period following the American Revolution, readers can access
the microfilm series, State Slavery Statutes, comp. Paul Finkelman (Frederick,
1989), which should still be regarded as an incomplete source on slave control
laws, since many important laws regulating slave conduct can only be found in
municipal ordinances. A much less thorough print version, though still widely
available, is George M. Stroud,ASketch of the Laws Relating to Slavery in the Several
States of the United States of America (New York, 1968). Judicial opinions at the
state supreme court level relating to slave law have been gathered and excerpted
by Helen Tunnicliff Catterall, Judicial Cases Concerning American Slavery and the
Negro, 5 vols. (Washington, 1926; repr ed, New York, 1968).
Some states have begun to put all their colonial legislation and government
papers online in a searchable format, which may improve the ability to locate
information on particular states’ slave laws. The University of Connecticut has
placed online the Public Records of the Colony of Connecticut from 1636–1776
[http://www.colonialct.uconn.edu/]. The Maryland State Archives is likewise
digitizing its complete run of colonial documents, previously published in
the Archives of Maryland, for online users [http://aomol.net/html/index.html].
Another major collection of colonial laws can be found at Yale Law School’s
Avalon Project [http://www.yale.edu/lawweb/avalon/avalon.htm].
Enforcement of slave laws routinely fell to slave courts and slave patrols.
On courts specifically designed to curb slave misbehavior, see James Campbell,
Slavery on Trial (forthcoming), though like most works that examine slave
courts, this study of Richmond magistrate proceedings focuses on the antebellum
period. On patrols, see Sally Hadden, Slave Patrols: Law and Violence in
Virginia and the Carolinas (Cambridge, 2001).
(5) Slave Law in a Revolutionary Age
Wars of the late eighteenth century in France, America, and Haiti were infused
with revolutionary ideology that had a direct effect on slave law and the possibility
of abolishing slavery. See William Wiecek, The Sources of Antislavery
Constitutionalism in America, 1760–1848 (Ithaca, 1977), and Gary Nash, Race
and Revolution (Lanham, 1990). More general works have set the impetus for
legally changing slave status into detailed contexts of politics, race, and local
conditions: Laurent Dubois, A Colony of Citizens: Revolution and Slave Emancipation
in the French Caribbean, 1787–1804 (Chapel Hill, 2004), and Sylvia Frey,
Water from the Rock: Black Resistance in a Revolutionary Age (Princeton, 1991).
Recent studies have maintained a tighter focus on legal changes to slave law
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in the Revolutionary era by tracking influential individuals, specific courts, or
unusual legal developments, such as the “Tyrannicide” affair in Massachusetts:
Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson
(2nd ed., Armonk, 2001), and Emily Blanck, “Revolutionizing Slavery: The
Legal Culture of Slavery in Revolutionary Massachusetts and South Carolina,”
Ph.D. thesis, Emory University, 2003.
The question of slave emancipation has attracted scholarly attention for
decades, creating a dense literature on the topic. On emancipation in Northern
states, see Arthur Zilversmit, The First Emancipation: The Abolition of Slavery
in the North (Chicago, 1967). The vexed question of when slavery ended in
Massachusetts has received extensive coverage: William O’Brien, “Did the
Jennison Case Outlaw Slavery in Massachusetts?” William and Mary Quarterly,
3rd ser., 17, 2 (1960), 219–41, and John D. Cushing, “The Cushing Court and
the Abolition of Slavery in Massachusetts: More Notes on the ‘Quock Walker
Case’,” American Journal of Legal History 5 (1961), 18–144. Broader questions
of how emancipation created a more complex understanding of race have been
explored by Joanne Pope Melish, Disowning Slavery: Gradual Emancipation and
“Race” in New England, 1780–1860 (Cornell, 1998); Stephen T. Whitman,
The Price of Freedom: Slavery and Manumission in Baltimore and Early National
Maryland (Lexington, 1997); and Shane White, Somewhat More Independent: The
End of Slavery in New York City, 1770–1810 (Athens, GA, 1991). The impact of
Somerset’s Case in England on American judicial thinking is still being evaluated:
William Cotter, “The Somerset Case and the Abolition of Slavery in England,”
History [Great Britain] 79 (1994), 31–56; Mark Weiner, “New Biographical
Evidence on Somerset’s Case,” Slavery and Abolition 23, 1 (2002), 121–36;
James Oldham, The Mansfield Manuscripts and the Growth of English Law in the
Eighteenth Century (Chapel Hill, 1992), particularly vol. II, ch. 21; Michael
Guasco, “Encounters, Identities, and Human Bondage: The Foundations of
Racial Slavery in the Anglo-AtlanticWorld,” Ph.D. thesis, College ofWilliam
and Mary, 2000.
Emancipation beyond the North American mainland has typically been
addressed one society at a time, rather than in sweeping fashion: Stuart
Schwartz, “The Manumission of Slaves in Colonial Brazil: Bahia, 1684–1745,”
Hispanic American Historical Review 54, 4 (1974), 603–35; Lyman Johnson,
“Manumission in Colonial Buenos Aires, 1776–1810,” Hispanic American Historical
Review 59, 2 (1979), 258–79; and Mary Turner, Slaves and Missionaries:
The Disintegration of Jamaican Slave Society, 1787–1834 (Urbana, 1982). More
recent studies have addressed the meaning of emancipation in broader strokes:
J. R. Ward, British West Indian Slavery, 1750–1834: The Process of Amelioration
(Oxford, 1988); Laurent Dubois, A Colony of Citizens: Revolution and Slave Emancipation
in the French Caribbean, 1787–1804 (Chapel Hill, 2004); and Rosemary
Brana-Shute, “The Manumission of Slaves in Suriname, 1760–1828,” Ph.D.
thesis, University of Florida, 1985.
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(6) Uncovering New Resources About African Slave Law
Until recently, the scholar who sought information on African law in the precolonial
period would routinely run into difficulties. For one thing, the major
journals devoted to African law – Recht in Afrika, the Journal of African Law,
or the Revue Juridique Africaine – rarely touch on the topic of African legal
history. Although a major bibliography of African law exists (compiled by
Jacques Vanderlinden under the titles African Law Bibliography/Bibliographie
de droit Africain [Brussels, 1972 and 1980]), its temporal range is limited and
it also suffers from the same problem as the journals on African law: it has
no categorical treatment of legal history. Presentism is alive and well among
scholars of African law, in part because of the adoption ofWestern legal norms
in the nineteenth and twentieth centuries, as African countries decolonized
and set about fashioning their own laws: there has been (and in some places
continues to be) an incredible disdain for the unwritten law or customary laws
that predated the arrival of European colonizers.
However, a book that appeared in 1998 has made it easier to investigate
different aspects of African customary law, both present-day custom as well as
historical custom. This work provides a 200-page compilation of articles, books,
dissertations, and conference papers across a staggering array of disciplines
(anthropology, folklore, history, literature, law, and many others) in more than
a half-dozen languages. For anyone attempting to know more about what
African law may be on a particular topic, the compilation by Effa Okupa will
be the starting point for years to come. Okupa’s International Bibliography of
African Customary Law will be invaluable in providing leads to future researchers
who wish to know more about ordinary African legal practices in many areas,
including slavery: Effa Okupa, International Bibliography of African Customary
Law: Ius non scriptum (Hamburg, 1998). For instance, his extensive information
about the law of sales will eventually inform scholars about typical trading
practices that slaves would have known in Africa. The principle of recission
(that a contract can be revoked if a fundamental mistake has been made in the
bargain – the slave sold as healthy turns out to have a hernia) was well known
in several African trading networks. This type of practice, which influenced
slave markets in Africa, affected American slave markets in fairly similar ways.
The legal philosophies of various tribal groups most affected by the slave trade
will naturally demand the closest attention: F. U. Okafor, Igbo Philosophy of Law
(Enugu, Nigeria, 1992).
In addition to discovering African customary law through Okupa’s compilation,
we will also need to gain greater familiarity with the writings of persons
who explored and traveled through African lands; those writings may provide
us with insights about legal customs and practices in various parts of Africa.
One starting point will be J. D. Fage, a noted African historian, who compiled
A Guide to Original Sources for Precolonial Africa Published in European Languages
(rev. ed., Madison, 1994). This work, in conjunction with J. F. P. Hopkins
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and Nehemia Levtzion’s compilation of early Arabic sources for West African
history (which published side-by-side translations of Arabic source material
into English) and other collections of travel literature generally, should be
mined by scholars seeking to learn more about African legal practices and laws
regarding slavery in various parts ofWest Africa: Corpus of Early Arabic Sources
for West African History (Cambridge, 1981). For the Yoruba people found in
modern-day Nigeria, an excellent early account of the civil and criminal justice
system exists in the work of Osifekunde, a man sold into slavery who
eventually told his story to a French ethnographer, D’Avezac-Macaya, in the
early nineteenth century: “Osifekunde of Ijebu,” in Philip D. Curtin, et al.,
eds., Africa Remembered: Narratives byWest Africans from the Era of the Slave Trade
(Madison, 1967).
chapter 9: the transformation of domestic law
holly brewer
The historical and legal literature on the many aspects of domestic law is
significant. This summary attempts to do justice to the main books in that
literature. Of the three areas of domestic law, the most attention has gone to
the status of wives and women generally. Significant attention has also been
paid to the status of workers and servants. The status of children has been
relatively ignored.
On Wives and Women
Of those books concerned primarily with the law, Marylynn Salmon, Women
and the Law of Property in Early America (Chapel Hill, 1986), and Cornelia
Dayton, Women Before the Bar: Gender, Law, & Society in Connecticut 1639–1789
(Chapel Hill, 1995), stand out. Salmon’s densely worked analysis of women and
property compares women’s legal status in different colonies, particularly as it
relates to their control of property. She argues that, from the early stages of colonization,
New England gave husbands more control over their wives’ estates
and earnings than in other colonies, largely due to Puritan religious beliefs,
which emphasized the authority of the husband. Southerners, on the other hand,
tended to adhere more closely to English tradition. She also attributes women’s’
greater control over property in the South to the shortage of women along with
high death rates, following Lois Carr and LorenaWalsh. Salmon examined premarital
contracts in different regions particularly closely. Her astute analysis
of the use of such contracts (which shows that they existed much more frequently
in the South in the late eighteenth century) is, however, marred by an
over-reliance on Blackstone’s definition of the common law rules surrounding
marriage, which hampers her from seeing some of the ways the common law
was changing and the other complex ways in which trusts and entails kept
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married women’s property out of their husband’s control. (She does, however,
note that women’s dower rights were changing in England during the seventeenth
and eighteenth centuries.) She also largely ignores questions of status
(which she admits). Dayton’s analysis of women’s interaction in Connecticut
courts over two centuries is subtle and fascinating. She found that women had
more authority and privileges compared to men in the seventeenth century,
but that in the eighteenth century men (as husbands and single) became more
privileged and less likely to be punished for wrongs.
Two recent books by Linda Sturtz and Terri Snyder on colonial Virginia
(while slightly hampered by an unchanging idea of what the English common
law was) likewise point to a much broader legal identity and activity
by women in the seventeenth century and a narrowing in the eighteenth century.
Sturtz, Within her Power: Propertied Women in Colonial Virginia (New York,
2002), in particular, was able to trace the most important ligaments of the
common law – the restraints on the wife selling family property without her
husband – through two important law cases of the eighteenth century. Likewise,
she points to a conceptual framework – that people were mostly identified with
families and that it was families that had legal identity (which often restrained
the father’s/husband’s actions as well) during the early modern period. Terry
Snyder traces the interconnections between women’s legal activities and their
political presence, as in the case of Lady Berkeley, and argues that even married
women often maintained a legal identity in Brabbling Women: Disorderly Speech
and the Law in Early Virginia (Ithaca, NY, 2003). These studies follow earlier
path-breaking social histories of women’s lives in early Maryland by Lorena
Walsh, “‘Till Death us Do Part’: Marriage and Family in Seventeenth Century
Maryland,” in Thad W. Tate and David L. Ammerman, eds., The Chesapeake
in the Seventeenth Century: Essays in Anglo-American Society (Chapel Hill, 1979),
126–52 and by Darrett Bruce Rutman and Anita Rutman,APlace in Time: Middlesex
County, Virginia, 1650–1750 (New York, 1984). Julia Cherry Spruill’s
Women’s Life andWork in the Southern Colonies, which first appeared in 1938, was
groundbreaking in how it used the law to uncover aspects of women’s lives.
Still, the disproportionate influence of T.E.’s Laws Resolutions of Womens
Rights (London, 1632, rpt. Amsterdam, 1979) on historians’ interpretations
of women’s legal status in early America seems to have begun with Spruill,
who actually misquoted him in a way that made his arguments seem even
stronger (p. 340); this passage has since been widely requoted (e.g., Sturtz,
p. 20). On this widely cited text also see Wilfrid Prest, “Law and Women’s
Rights in Early Modern England,” The Seventeenth Century 6 (1991), 169–87.
Prest recognizes how widely this text is cited by historians, but does not realize
how much it differs from other treatises of the period. He speculates that it
may have been intended for educating law students and perhaps even to defend
women in property disputes in which they were increasingly engaged in the
seventeenth century. Yet, it demarcates more restrictive space for women.
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While this essay has not dealt extensively with women and crime (since crime
is covered in other essays) a brief mention of books that deal with that subject,
particularly petty crimes such as slander, is relevant here. Jane Kamensky’s
Governing the Tongue: The Politics of Speech in Early New England (Oxford, 1997)
shows how women were often singled out specifically for their speech against
public authorities, but that no women were punished for speaking or testifying
against their husbands. She speculates that was because women were by and
large obedient and modest, but it may well have been because no law specifically
forbade it (p. 70).
On witchcraft, Carol Karlsen’s The Devil in the Shape of a Woman: Witchcraft
in Colonial New England (New York, 1989) argues that the differential criminalization
of women as witches in Puritan New England derives at least in part
from jealousy over their ownership of property.
On domestic law more broadly, see Carole Shammas, A History of Household
Government in America (Charlottesville, 2002). She points out that Hale and
Blackstone borrowed from the Greeks their categorization of master/servant,
husband/wife, parent/child under the heading of “relations oeconomical”
(p. 3). She argues that most people were dependents on a household head
in the colonies, even during the seventeenth century. By her estimation, more
than 80 percent of colonists were dependents (p. 31). While her analysis is
thoughtful and fascinating – and she may well be right in general about the
increased power of the head of household (due to inheritance reform, for example)
– she is more interested in social categories than legal constructions. In
lumping together these categories and not paying in-depth attention to legal
technicalities, she contributes to the perception created by eighteenth-century
legal scholars like Blackstone that the categories of dependence and authority
had a uniform identity in the earlier period. Also see Cynthia Kierner, Beyond
the Household: Women’s Place in the Early South, 1700–1835 (Ithaca, 1998), and
Daniel Scott Smith, “Behind and Beyond the Law of the Household,” William
and Mary Quarterly 52 (1995), 145–50.
On the middle colonies, see Joan R. Gunderson and Gwen Victor Gampel,
“Married Women’s Legal Status in Eighteenth Century New York and Virginia,”
William and Mary Quarterly 39 (1982), 114–33, and Joan M. Jensen,
Loosening the Bonds: Mid-Atlantic FarmWomen, 1750–1850 (New Haven, 1986),
though this is more of a social history. Karin A. Wulf, Not All Wives: Women
of Colonial Philadelphia (Ithaca, 2000), explores the legal status of unmarried
women.
On the early nineteenth century, see Linda Kerber’s probing essay, “The
Paradox of Women’s Citizenship in the New Republic: The Case of Martin
vs. Massachusetts, 1805,” American Historical Review 97 (1992), 349–78, which
builds on insights into the conflicts between revolutionary ideology and the
common law first offered in her Women of the Republic: Intellect and Ideology
in Revolutionary America (Chapel Hill, 1980), notably ch. 5; and Rosemarie
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Zagarri, “The Rights of Man and Woman in Post-Revolutionary America,”
William and Mary Quarterly 55 (1998), 203–30. Hendrik Hartog, Man and
Wife in America: A History (Cambridge, MA, 2000) richly traces American legal
cases of the nineteenth century as they build on and respond to Blackstone,
especially as those develop in the middle of the nineteenth century into a
sometimes extreme patriarchal perspective. Also see Nancy Isenberg, Sex and
Citizenship in Antebellum America (Chapel Hill, 1998) and Mary Beth Sievens,
Stray Wives: Marital Conflict in Early National New England (New York, 2005).
In the long historiographical picture, some much older (and much harder
to find) books have pointed the way toward considering changes in the common
law, particularly as it relates to femme covert and the status of women.
Probably the most important of these are Charlotte Carmichael Stopes, British
Freewomen: Their Historical Privilege (London, 1894), an antiquarian work that
sifts through the historical evidence to suggest a much richer picture of women’s
legal involvement in the seventeenth century and before (and the pattern of
their exclusion); Stopes fingers Sir Edward Coke as particularly important in
pointedly excluding women from the vote. She may well be correct, as he certainly
played that role in trying to bar those under 21 from the suffrage (a
change he sought by fiat, as it were, in his commentaries). The other important
older scholar is Mary R. Beard, Women as Force in History (1946), who acknowledges
the influence of Blackstone and the common law in the young United
States as retrograde in terms of the legal status of women. She does not realize,
however, how Blackstone himself was shaping the common law and sees equity
courts as crafting an alternative to the common law rather than building on
some of its earlier precedents. Also see Richard B. Morris, Studies in the History
of American Law (New York, 1930), especially ch. 3, “Women’s Rights in Early
American Law,” which though dated, is a rich exploration of cases, including
listings of, for example, cases in which wives acted alone (p. 176).
On women and voting, in addition to Stopes, see Hilda L. Smith,“Women as
Sextons and Electors: King’s Bench and Precedents forWomen’s Citizenship,”
in Hilda L. Smith, ed.,WomenWriters and the Early Modern British Political Tradition
(Cambridge, 1998), 324–42; Jan Lewis, “Of Every Age Sex&Condition”:
The Representation ofWomen in the Constitution,” Journal of the Early Republic
15 (1995), 359–87; and Alexander Keyssar, The Right to Vote: The Contested
History of Democracy in the United States (New York, 2001).
In English history, among the most important studies of women’s involvement
in the civil law are Susan Staves’s wonderful Married Women’s Separate
Property in England, 1660–1833 (Cambridge, MA, 1990); Eileen Spring, Law,
Land, and Family: Aristocratic Inheritance in England, 1300 to 1800 (Chapel Hill,
1993); and Amy Louise Erickson, Women and Property in Early Modern England
(New York, 1993). One must be careful about generalizations in these
works about women and property and pay close attention to the case law they
discuss; the last two, in particular, do not recognize the important role that
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entails could play in preserving women’s property, presuming that entails were
always in “tail male” (to bar women) when in fact most were general and
sometimes were made specifically to prevent a husband from controlling his
wife’s estate. All of them tend to assume the post-Blackstone perspective that
common law courts did not recognize married women’s property, even during
the seventeenth century. Even Stretton’s rich account of Women Waging Law in
Elizabethan England (Cambridge, 1998) relies on Blackstone as embodying the
common law of the seventeenth century, though it is in other ways a wonderful
survey of the many ways women participated in English courts even when
married (very often jointly with their husbands, but even suing their husbands
in some cases, see ch. 6). Susan Dwyer Amussen’s An Ordered Society: Gender and
Class in Early Modern England (New York, 1994) builds upon this synthesis to
argue that gender subordination – especially through the law – was crucial to
larger structures of authority. Cynthia B. Herrup’s A House in Gross Disorder:
Sex, Law, and the 2nd Earl of Castlehaven (Oxford, 2004) illuminates the ways in
which issues of class and social status helped to shape notions of family order
among the elite in England in the early seventeenth century (such that class
trumped gender as an issue).
On violence and marriage see especially Elizabeth Foyster, Marital Violence:
An, English Family History 1660–1857 (Cambridge, 2005); J. M. Beattie, Crime
and the Courts in England 1660–1800 (Princeton, 1986), esp. 74–112, 135–9;
Henry A. Kelly, “Rule of Thumb and the Folklaw of the Husband’s Stick” Journal
of Legal Education 44 (1994), 341–65; J. S. Cockburn, “Patterns of Violence
in English Society: Homicide in Kent 1560–1985,” Past and Present 130 (1991),
70–106; and Peter King, “Punishing Assault: The Transformation of Attitudes
in English Courts,” Journal of Interdisciplinary History 27 (1996), 43–74. The
Cockburn and King articles also reveal interesting information about how
violence between masters and servants was differentially prosecuted. Another
study that tracks violence throughout the household is Christine Daniels and
Michael V. Kennedy, eds., Over the Threshold: Intimate Violence in Early America
(New Brunswick, 1999). On marriage, rape, and sexual violence, see, variously,
Kathleen Brown, GoodWives, NastyWenches, and Anxious Patriarchs: Gender, Race,
and Power in Colonial Virginia (Chapel Hill, 1996); Ruth Bloch, “Women and
the Law of Courtship in Eighteenth Century America” in her Gender and Morality
in Anglo-American Culture, 1650–1800 (Berkeley, 2003); and Sharon Block,
Rape and Sexual Power in Early America (Chapel Hill, 2006). Also see Christine
Daniels and Michael V. Kennedy, eds., Over the Threshold: Intimate Violence in
Early America (New York, 1999). On divorces, see Merril D. Smith, Breaking the
Bonds: Marital Discord in Pennsylvania, 1730–1830 (New York, 1991); Richard
H. Chused, Private Acts in Public Places: A Social History of Divorce in the Formative
Era of American Family Law (Philadelphia, 1994); Norma Basch, Framing
American Divorce: From the Revolutionary Generation to the Victorians (Berkeley,
1999); and Roderick Phillips, Putting Asunder: A History of Divorce in Western
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Society (New York, 1988). Lawrence Stone, Road to Divorce: England, 1530–1987
(New York, 1990) is the most important of his several volumes on divorce in
England; it provides a vital context for understanding divorce in America as
well. On parental custody as it emerged as a legal issue in the wake of divorces
becoming more common, see Michael Grossberg, A Judgment for Solomon:
The d’Hauteville Case and Legal Experience in Antebellum America (Cambridge,
1996).
Many books of social and intellectual history address the subject of women’s
legal status indirectly, as part of a larger social analysis. Almost by definition,
many such books are drawn deeply from legal sources, since those are some of
the most important sources we have for the colonial period, for which few other
documents about (and especially by) women survive. So Laurel Thatcher Ulrich,
GoodWives: Image and Reality in the Lives of Women in Northern New England 1650–
1750 (New York, 1982), relies extensively on legal records, including criminal
records and inventories, to make women’s lives (especially as wives) come alive;
likewise Mary Beth Norton’s Liberty’s Daughters: The Revolutionary Experience of
American Women, 1750–1800 and her Founding Mothers and Fathers: Gendered
Power and the Forming of American Society (New York, 1996) draw deeply on legal
sources.
On Children
As mentioned above, the literature on the legal status of children is thin. The
only broad survey is Holly Brewer, By Birth or Consent: Children, Law, and
the Anglo-American Revolution in Authority (Chapel Hill, 2005). For the early
nineteenth century, see Michael Grossberg, Governing the Hearth: Law and the
Family in Nineteenth Century America (Chapel Hill, 1985). On the social history
of childhood, with some helpful discussion of children’s legal status, see John
Demos, A Little Commonwealth: Family Life in Plymouth Colony (New York,
1970) and Ross W. Beales, Jr., “In Search of the Historical Child: Miniature
Adulthood andYouth in Colonial New England,” American Quarterly 27 (1975),
279–98.
Some helpful primary source collections are Robert H. Bremner, Children
and Youth in America: A Documentary History (Cambridge, MA, 1970–74), and
the older but still useful collection by Grace Abbot The Child and the State, 2
vols. (Chicago, 1938).
On children and crime specifically, see Brewer, ch. 6 (above); John R. Sutton,
Stubborn Children: Controlling Delinquency in the United States, 1640–1981
(Berkeley, 1988); and Nancy Hathaway Steenburg, Children and the Criminal
Law in Connecticut, 1635–1855 (New York, 2005). Jane Kamensky, Governing
the Tongue, also has a chapter on sons’ speech and rebellion and punishment
(ch. 4), which makes it clear that while New England authorities sought to
limit sons’ criticism of their parents, they did not effectively do so.
On children and farm labor, see Daniel Vickers, Farmers & Fishermen: Two
Centuries ofWork in Essex County, Massachusetts, 1630–1850 (Chapel Hill, 1994).
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Vickers sees family labor, and particularly the labor of children, as what the
North used instead of the slaves and servants that were more common in the
Southern colonies.
On family violence (in addition to the articles mentioned above under the
section on wives) see Elizabeth Pleck, Domestic Tyranny: The Making of American
Social Policy Against Family Violence from Colonial Times to the Present (New York,
1987).
On Labor
There is a broad literature on labor law in England and in early America.
On England, see A. L. Beier, Masterless Men: The Vagrancy Problem in England
1560–1640 (London, 1985); Ann Kussmaul, Servants and Husbandry in Early
Modern England (Cambridge, 1981); Douglas Hay, “England, 1562–1875: The
Law and its Uses” and Christopher Tomlins, “Early British America, 1585–
1830: Freedom Bound,” both in Douglas Hay and Paul Craven, eds., Masters,
Servants and Magistrates in Britain and the Empire, 1562–1955 (Chapel Hill,
2004); and Peter Laslett, The World We Have Lost: Further Explored (New York,
1984), especially chs. 1 & 2, where he lays out an argument that teenage labor
of apprentices in others’ households was common to all and that early modern
England was a “one class” society. Also see E. P. Thompson, Customs in Common:
Studies in Traditional Popular Culture (New York, 1991).
On apprenticeship particularly, see O. J. Dunlop and Richard Denham,
English Apprenticeship and Child Labor, A History (New York, 1912); K. D. M.
Snell, Annals of the Labouring Poor: Social Change and Agrarian England, 1660–
1900 (Cambridge, 1985); Ilana Krausman Ben-Amos, Adolescence and Youth
in Early Modern England (New Haven, 1994); and Paul Griffiths, Youth and
Authority: Formative Experiences in England 1560–1640 (New York, 1996).
On the colonial period, see David Galenson, White Servitude in Colonial
America: An Economic Analysis (Cambridge, 1981); Sharon V. Salinger, ‘To Serve
Well and Faithfully’: Labor and Indentured Servants in Pennsylvania, 1682–1800
(Cambridge, 1987); Lawrence William Towner’s dissertation of 1954, which
was finally published: A Good MasterWell Served: Masters and Servants in Colonial
Massachusetts, 1620–1750 (New York, 1998); Robert Steinfeld, The Invention
of Free Labor: The Employment Relation in English and American Law and Culture,
1350–1870 (Chapel Hill, 1991); Ruth Wallis Herndon, Unwelcome Americans:
Living on the Margin in Early New England (Philadelphia, 2001), ch. 3 (on
apprentices); and Holly Brewer, “Age of Reason?: Children, Testimony and
Consent in Early America,” in Christopher Tomlins and Bruce Mann, eds., The
Many Legalities of Early America (Chapel Hill, 2001), 293–332 (on children and
forced labor).
On indentured servitude see Peter Wilson Coldham, Emigrants in Chains:
A Social History of Forced Emigration to the Americas of Felons, Destitute Children,
Political and Religious Non-Conformists, Vagabonds, Beggars and Other Undesirables,
1607–1776 (Surrey, UK, 1992); Christopher Tomlins, “Indentured Servitude
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in Perspective: European Migration into North America and the Composition
of the Early American Labor Force, 1600–1775,” in Cathy Matson, ed., The
Economy of Early America: Historical Perspectives and New Directions (University
Park, PA, 2006), 146–82; and Alison Games, Migration and the Origins of the
English Atlantic World (Cambridge, MA, 1999). Also see two older books that
are rich in cases: Abbot Emerson Smith, Colonists in Bondage; White Servitude
and Convict Labor in America, 1607–1776 (Chapel Hill, 1947), and Richard B.
Morris, Government and Labor in Early America (New York, 1946). On the Early
Republic, see Christopher L. Tomlins, Law, Labor, and Ideology in the Early American
Republic (Cambridge, 1993); Amy Dru Stanley, From Bondage to Contract:
Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York,
1998); Robert J. Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth
Century (Cambridge, 2001); SeanWilentz, Chants Democratic: New York City &
the Rise of the American Working Class, 1788–1850 (New, 1984); and Tomlins,
“Subordination, Authority, Law: Subjects in Labor History,” International Labor
and Working Class History 47 (1995), 56–90.
On Blackstone and legal treatises, and the reform of the common law, see
Barbara Shapiro, “Law Reform in Seventeenth Century England,” American
Journal of Legal History 19 (1975), 280–312; Shapiro, Beyond “Reasonable Doubt”
and “Probable Cause”: Historical Perspectives on the Anglo-American Law of Evidence
(Berkeley, 1991); David Lieberman, The Province of Legislation Determined:
Legal Theory in Eighteenth-Century Britain (Cambridge, 1989); Herbert A. Johnson,
Imported Eighteenth-Century Law Treatises in American Libraries, 1700–1799
(Knoxville, 1978); and Brewer, By Birth or Consent, chs. 5–7 and appendix.
On Blackstone’s influence, see Donald S. Lutz, “The Relative Influence of
European Writers on Late-Eighteenth-Century American Political Thought,”
American Political Science Review 78 (1984), 189–97; Duncan Kennedy, “The
Structure of Blackstone’s Commentaries,” Buffalo Law Review, 28 (1979), 205–
382; and Wilfred Prest, Dictionary of National Biography, s.v. “William Blackstone.”
Also see J. R. Pole “Reflections on American Law and the American
Revolution,” William and Mary Quarterly, 3rd ser., 50 (1993), 122–59.
chapter 10: law and religion in colonial america
mark mcgarvie and elizabeth mensch
The best general histories on the roles of religion and its establishment in early
American society are probably still S. E. Ahlstrom, A Religious History of the
American People (New Haven, CT, 1972);W.W. Sweet, The Story of Religion in
America (1930; New York, 1950); R. S. Handy, A Christian America (New York,
1971);W. S. Hudson and J. Corrigan, Religion in America (NewYork, 1992); and
a collection of essays in honor of Professor Leo Pfeffer edited by J. E.Wood, Jr.,
Religion and the State (Waco, TX, 1985). A recent general history of the colonies
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by A. Taylor, American Colonies (New York, 2001), effectively incorporates the
role of religion and also of British colonizing in relation to Indians and African
Americans. The decline of colonial religious establishments is best presented
in the works of S. E. Mead, most significantly The Lively Experiment (1963; New
York, 2007).
A growing body of work on Indian missions in the colonial era is highlighted
by R. Galgano, Feast of Souls (Albuquerque, NM, 2005); K. O. Kupperman,
Indians and English (Ithaca, NY, 2000); and J. Axtell, The European and the
Indian (New York, 1981) and After Columbus (New York, 1988). Jill Lepore,
The Name of War (New York,1998), presents insights into the tension within
Indian societies precipitated by converted or “praying Indians.”
Many authors have emphasized the communitarian aspects of colonial society
and the extent to which law and religion worked together to build and sustain a
communitarian ethic, including S. Botein, Early American Law and Society (New
York, 1983), and K. McCarthy, American Creed (Chicago, 2003). On communities
in the Southern colonies, including Virginia, see D. B. Rutman and A.
H. Rutman, A Place in Time (New York, 1984); A. Kulikoff, Tobacco and Slaves
(Chapel Hill, NC, 1986); J. G. Kolb, Gentlemen and Freeholders (Baltimore,
1998); and James R. Perry, Jr., The Formation of a Society on Virginia’s Eastern
Shore, 1615–1655 (Chapel Hill, NC, 1990). The extent to which deference
to a local elite, often reinforced by religious doctrines and institutions, frustrated
individualism and democracy throughout colonial America is examined
in a series of essays in Michael G. Kammen, ed., Politics and Society in Colonial
America (Chapel Hill, NC, 1967). The works of Perry Miller establish a
strong basis for understanding New England communitarianism in the 1600s,
which eroded under the economic and social pressures in the 1700s. Ironically,
numerous studies in the 1970s and 1980s tended more to confirm Miller’s
declension thesis than to fulfill their intention of challenging it: see K. Lockridge,
A New England Town (New York, 1970); J. R. T. Hughes, Social Control
in the Colonial Economy (Charlottesville, VA, 1976); L. T. Urich, Good Wives
(Philadelphia, 1980); E. S. Morgan, The Puritan Family (New York, 1966);
and B. C. Daniels, Puritans at Play (Houndmills, NY,1995). A discussion of
New England’s Calvinist communitarianism achieved while recognizing the
need to separate church and state is presented in T. H. Breen, The Good Ruler
(New Haven, CT, 1970). A description of the colonial religious establishment
and its support of communitarian values appears in an early chapter of a work
focusing primarily on the process of disestablishment during and after the
Revolution: M. D. McGarvie, One Nation Under Law (Dekalb, IL, 2004). The
Many Legalities of Early America, edited by C. L.Tomlins and B. H. Mann (Chapel
Hill, NC, 2001), contains several essays stressing the role of law in negotiating
the meaning of “community” in the colonies. The similarity of colonial
New Englanders and Virginians in their struggles between pious parochialism
and striving cosmopolitanism in the eighteenth century is explored in
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K. A. Lockridge, Settlement and Unsettlement in Early America (Baton Rouge, LA,
1981). A contrast between colonial Puritan and English Anglican enforcement
of Christian ethical prescription can be found in D. Underdown, Revel, Riot, and
Rebellion (New York, 1987). D. Lovejoy, The Glorious Revolution in America (New
York, 1972), provides an account of the interplay between religious/political
conflict in England and in the colonies. On the growth of religious toleration
in the eighteenth century contrasted with the seventeenth-century desires for
religious homogeneity achieved through persecution, see Chris Beneke, Beyond
Toleration (New York, 2006).
Leading works in intellectual history have concentrated on the changing
religious beliefs and practices of colonial Americans: see A. E. Heimert, Religion
and the American Mind from the Great Awakening to the Revolution (Cambridge,
MA, 1966); P. Bonomi, Under the Cope of Heaven (New York, 1986); J. Butler,
Awash in a Sea of Faith (Cambridge, MA, 1990); D. Hall, Worlds of Wonder,
Days of Judgment (New York, 1989); and N. A. Hatch, The Sacred Cause of
Liberty (New Haven, CT, 1977) and The Democratization of American Christianity
(New Haven, CT, 1989). Many books have interpreted the intellectual and
cultural significance of Jonathan Edwards and his role in the Great Awakening.
The classic interpretation is P. Miller, Jonathan Edwards (New York, 1949).
G. Marsden, Jonathan Edwards: A Life (New Haven, CT, 2003), is a recent
reinterpretation that questions some of Miller’s assertions. These works are
easily integrated with complementary works in social and political history that
consider changes in American culture as precipitants to revolution. Much of
this scholarship has documented the rise of commercial culture and individual
freedoms as coterminous with the decline of the communitarian ethic and of
religious influence in colonial law and social structure. See R. Godbeer, Sexual
Revolution in Early America (Baltimore, 2002); B. Bailyn, The New England
Merchants in the Seventeenth Century (Cambridge, MA, 1955); R. L. Bushman,
From Puritan to Yankee (Cambridge, MA, 1967); and J. P. Greene, Pursuits of
Happiness (Chapel Hill, NC, 1988). An excellent general history of poverty in
colonial America contains various essays addressing the reliance on religious
sentiments and institutions to address this social problem: B. G. Smith, ed.,
Down and Out in Early America (University Park, PA, 2004).
The colonial economy, with its tension between Christian and market norms,
is examined in J. Henretta, The Origins of American Capitalism: Collected Essays
(New York, 1999) and J. McCusker and R. Menard, The Economy of British
America 1607–1789 (Chapel Hill, NC, 1985). A perspective somewhat at odds
from that presented herein, asserting that Puritan Massachusetts embodied
proto-capitalist values, is presented in S. Innes, Creating the Commonwealth: The
Economic Culture of Puritan New England (New York, 1995). E. B. Holifield,
Era of Persuasion: American Thought and Culture, 1521–1680 (Boston, 1989),
examines the colonists’ use of texts and argument in relation to each other and
to native cultures.
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Probably the leading works on the legal history of early Massachusetts are
W. E. Nelson, Americanization of the Common Law (Cambridge, MA, 1975)
and Dispute and Conflict Resolution in Plymouth County, Massachusetts 1725–1825
(Chapel Hill, NC, 1981). See also D. T. Konig, Law and Society in Puritan
Massachusetts (Chapel Hill, NC, 1979); E. Powers, Crime and Punishment in
Early Massachusetts, 1620–1692 (Boston, 1966); and N. E. H. Hull, Female
Felons (Urbana, IL, 1987). On issues of social and religious conformity, see T.
A. Breen, Transgressing the Bounds (New York, 2001). On the relation of religion
to material culture see C. L. Heyrman, Commerce and Culture (Chapel Hill, NC,
1984). See also J. P. Reid, Rule of Law (New York, 2004); E. J. McManus, Law
and Liberty in Early New England (Amherst, MA, 1993); and G. L. Haskins, Law
and Authority in Early Massachusetts (New York, 1960). On law and religious
discipline in early Massachusetts see T. D. Bozeman, The Precisionist Strain
(Chapel Hill, NC, 2004), and J. F. Cooper, Jr., Tenacious in Their Liberties (New
York, 1999). Edmund S. Morgan, in Visible Saints: The History of a Puritan Idea
(Ithaca, NY, 1963), relates the dilemma of inclusion/exclusion in relation to
Puritan church membership. A good microhistory case study of law, religion,
and cultural values in colonial Massachusetts is J. Pagan, Anne Orthwood’s Bastard
(New York, 2003). The role of dissenters in early Massachusetts is well recorded
in W. G. McLoughlin, New England Dissent, 1630–1833 (Cambridge, MA,
1971). The extent to which law, religious doctrine, and spiritualism were
intertwined is developed in D. L. Winiarski, “‘Pale Bluish Lights and a Dead
Man’s Groan’: Tales of the Supernatural from Eighteenth-Century Plymouth
Massachusetts,” William and Mary Quarterly, 3rd series, 54 (1998), 497–530.
The era of witchcraft trials has been subject to myriad and various interpretations,
among which are P. C. Hoffer, The Salem Witchcraft Trials (Lawrence,
KS, 1997); C. F. Karlsen, The Devil in the Shape of a Woman (Chapel Hill, NC,
1987); C. W. Upham, Salem Witchcraft (Boston, 2000); C. Hansen, Witchcraft
at Salem (New York, 1969); and M. Starkey, The Devil in Massachusetts (New
York, 1949).
The influence of religion on the laws and institutions of Rhode Island is
developed in S. V. James, Colonial Rhode Island: A History (New York, 1975);
John Clarke and His Legacies: Religion and the Law in Colonial Rhode Island,
1638–1750 (University Park, PA, 1999); and The Colonial Metamorphosis in
Rhode Island: A Study of Institutions of Change (Hanover, NH, 2000); as well
as in G. S. Kimball, Providence in Colonial Times (Boston, 1912). Among the
interpretations of Roger Williams’ pivotal role are D. Shaggs, Roger Williams’
Dream for America (New York, 1933); T. Hall, Separating Church and State: Roger
Williams and Religious Liberty (Champaign, Il, 1998); E. S. Gaustad, Liberty of
Conscience: RogerWilliams in America (Grand Rapids, MI, 1991); and E. Morgan,
Roger Williams: The Church and the State (New York, 1967).
The complex interaction among law, religion, and cultural change in colonial
Pennsylvania is especially accessible through an influential study: B. Levy,
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Quakers and the American Family: British Settlement in the Delaware Valley (New
York, 1988). Other treatments include F. Tolles, Meeting House to Counting House:
The Quaker Merchants of Colonial Philadelphia, 1682–1763 (New York, 1948);
D. Rothermund, The Layman’s Progress: Religious and Political Experience in Colonial
Pennsylvania, 1740–1770 (Philadelphia, 1961); S. G.Wolf, Urban Village:
Population, Community, and Family Structure in Germantown, Pennsylvania (Princeton,
1976); A. S. Fogleman, Hopeful Journeys: German Immigration, Settlement, and
Political Culture in Colonial America 1717–1775 (Philadelphia, 1996); and M.
Zuckerman, ed., Friends and Neighbors: Group Life in America’s First Plural Society
(Philadelphia, 1982). A. G. Roeber, Palatines, Liberty, and Property: German
Lutherans and Colonial British America (Baltimore, 1993), shows the important
role of German immigrants in shaping conceptions of public and private. L.
Riforgiato, Missionary of Moderation: Henry Melchoir Muhlenberg and the Lutheran
Church in English America (Lewisburg, PA, 1980), traces the particular career of
the influential Lutheran minister. Several authors have described Pennsylvania
and the mid-Atlantic states, in contrast to New England, as developing an early
emphasis on individualism and a market economy because of heterogeneous
populations and a devaluation of religion: G. Nash, “Social Development,” in
J. P. Greene and J. R. Pole, eds., Colonial British America: Essays in the New
History of the Early Modern Era (Baltimore, 1984), 233–61, esp. 233–39, and
J. T. Lemon, The Best Poor Man’s Country: A Geographical Study of Southeastern
Pennsylvania (Baltimore, 1972).
A number of books provide a general background on the often convoluted
politics of colonial New York in relation to its social and economic life. Examples
are P. Bonomi, A Factious People: Politics and Society in Colonial New York
(New York, 1971); M. Kammen, Colonial New York: A History (New York,
1975); and M. Klein, ed., The Politics of Diversity: Essays in the History of Colonial
New York (Port Washington, NY, 1974). G. Smith, Religion and Trade in
New Netherland (Ithaca, NY, 1973), describes religion in relation to law, politics,
and the economy in the early years. For the Glorious Revolution rebellion
and its aftermath, see J. Reich, Leisler’s Rebellion: A Study of Democracy in New
York 1669–1720 (Chicago, 1953). Both S. Kim, Landlord and Tenant in Colonial
New York: Manorial Society, 1664–1775 (Chapel Hill, NC, 1978), and I. Mark,
Agrarian Conflicts in Colonial New York 1711–1775 (New York, 1940), describe
land grant disputes. Those disputes are put in the context of religious conflict
in E. Mensch, “The Colonial Origins of Liberal Property Rights,” Buffalo Law
Review 31 (1982), 635, and “Religion, Revival and The Ruling Class: A Critical
History of Trinity Church,” Buffalo Law Review 36 (1987), Part II: 427. Books
covering the more immediate pre-Revolutionary period include E. Countryman,
A People in Revolution: The American Revolution and Political Society in New
York, 1760–1790 (Baltimore, 1981), and D. Dillon, The New York Triumvirate:
A Study of the Legal and Political Careers of Williams Livingston, John Morin Scott,
and William Smith, Jr. (New York, 1949). A valuable recent study, focusing
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specifically on the Dutch in relation to Anglican establishment, is R. Balmer,
A Perfect Babel of Confusion: Dutch Religion and English Culture in the Middle
Colonies (New York, 1989).
Any work on the religious and legal culture in colonial Virginia should
begin with R. Isaac, The Transformation of Virginia (Chapel Hill, NC, 1982),
and E. L. Bond, Damned Souls in a Tobacco Colony (Macon, GA, 2000). Timothy
Breen has written excellent works distinguishing colonial Virginia from colonial
Massachusetts: see his books, Puritans and Adventurers (New York, 1980)
and Tobacco Culture (Princeton, 1985). Good summaries of early Virginia legal
culture can be gained from A. G. Roeber, Faithful Magistrates and Republican
Lawyers (Chapel Hill, NC, 1981), and G. L. Chumbly, Colonial Justice in Virginia
(Richmond, VA, 1938). The extent to which religion and the authority
of the church influence criminal prosecutions in colonial Virginia is available
in A. P. Scott, Criminal Law in Colonial Virginia (Chicago, 1930). Eighteenthcentury
Virginia ideas on religious freedom are addressed in Daniel L. Dreisbach,
“Thomas Jefferson and Bills Number 82–86 of the Revision of the Laws
of Virginia, 1776–1786: New Light on the Jefferson Model of Church-State
Relations,” North Carolina Law Review 159 (1990), 69; E. Fleet, “Madison’s
Detached Memoranda,”William and Mary Quarterly, 3rd series, 3 (1946): 534–
68; F. J. Hood, “Revolution and Religious Liberty: The Conservation of the
Theocratic Concept inVirginia,” Church History 40–2 (1971), 170–81; and T. E.
Buckley, Church and State in Revolutionary Virginia, 1776–1787 (Charlottesville,
VA, 1977).
Maryland’s colonial legal history and the influences of religious strife and
ultimate Anglican establishment on it are available in G. A.Wood, The French
Presence in Maryland, 1524–1800 (Baltimore, 1978); L. G. Carr and D. Jordan,
Maryland’s Revolution of Government, 1689–1692 (Ithaca, NY, 1974); M.
Graham, “Meetinghouse and Chapel: Religion and Community in 17th Century
Maryland,” in L. G. Carr, P. D. Morgan, and J. B. Russo, eds., Colonial
Chesapeake (Chapel Hill, NC, 1988), 242–74; A. E. Matthews, “The Religious
Experience of Southern Women,” in R. Ruether and R. S. Keller, eds., Women
and Religion in America, Vol. 2: The Colonial and Revolutionary Periods (New York,
1981), 193–232; J. H. Smith, “The Foundations of Law in Maryland, 1634–
1715,” in G. A. Billias, ed., Selected Essays: Law and Authority in Colonial America
(Berkeley, 1965), 92–115; J. D. Krugler, “Lord Baltimore, Roman Catholics,
and Toleration: Religious Policy in Maryland During the Early Catholic Years,
1634–1649,” Catholic Historical Review 65 (1979), 49–75;T. P. Pyne, “A Plea for
Maryland Catholics Reconsidered,” Maryland Historical Magazine 92 (1997),
163–81; B. B. Hardy, “Roman Catholics, Not Papists: Catholic Identity in
Maryland, 1689–1776,” Maryland Historical Magazine 92 (1997), 139–61; E.
A. Kessel, “A Mighty Fortress Is Our God: German Religious and Educational
Organizations on the Maryland Frontier, 1734–1800,” Maryland Historical
Magazine 77 (1982), 370–87; and J. D. Krugler, “Sir George Calvert’s
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Resignation as Secretary of State and the Founding of Maryland,” Maryland
Historical Magazine 63 (1973), 239–54.
chapter 11: the transformation of law and economy
bruce h. mann
The rich historiography of law in early America includes little of the sustained
discussion of law and the economy that has marked the historiography of the
nineteenth century. That is partly because the earlier period does not have
its Morton J. Horwitz, whose The Transformation of American Law, 1780–1860
(Cambridge, MA, 1977) set the terms of debate for the nineteenth century. This
is not to say that legal historians of early America have ignored the economy;
only that their primary interests have more often lain elsewhere. A few notable
exceptions aside, one is most often left to search studies of different elements
of the various colonial economies for stray references to law.
One of the notable exceptions is David Thomas Konig, whose Law and Society
in Puritan Massachusetts: Essex County, 1629–1692 (Chapel Hill, NC, 1979) has
a fine chapter on the social and economic dimensions of real property litigation.
Narrower, but still valuable, discussions of property issues include George L.
Haskins, “The Beginnings of the Recording System in Massachusetts,” Boston
University Law Review 21 (1941), 281–304 and the chapter on land distribution
and alienation in Richard B. Morris, Studies in the History of American Law
with Special Reference to the Seventeenth and Eighteenth Centuries (2nd ed., Philadelphia,
1959). The best case study of land tenancy is Stephen Innes, Labor in a
New Land: Economy and Society in Seventeenth-Century Springfield (Princeton, NJ,
1983).
The essential overview of the economy for the period is John J. McCusker and
Russell R. Menard, The Economy of British America, 1607–1789 (Chapel Hill,
NC, 1985). Also valuable is Marc Egnal, New World Economies: The Growth of
the Thirteen Colonies and Early Canada (New York, 1998). A fine work on the
economic culture of New England in the seventeenth century, with particular
emphasis on government regulation of the economy, is Stephen Innes, Creating
the Commonwealth: The Economic Culture of Puritan New England (New York,
1995). For commercial activity in the same period, Bernard Bailyn, The New
England Merchants in the Seventeenth Century (Cambridge, MA, 1955), remains
invaluable. Good discussions of wage regulations are Richard B. Morris and
Jonathan Grossman, “The Regulation of Wages in Early Massachusetts,” New
England Quarterly 11 (1938), 470–500 and Richard B. Morris, Government and
Labor in Early America (New York, 1946).
For law and the economy in Virginia before the rise of tobacco, see David
Thomas Konig, “‘Dale’s Laws’ and the Non-Common Law Origins of Criminal
Justice in Virginia,” American Journal of Legal History 26 (1982), 354–75.
For the period after tobacco became king, Allan Kulikoff, Tobacco and Slaves:
The Development of Southern Cultures in the Chesapeake, 1680–1800 (Chapel Hill,
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NC, 1986), is particularly useful on attempts to regulate tobacco production
and quality. For tobacco regulation in Maryland, see Mary McKinney
Schweitzer, “Economic Regulation and the Colonial Economy: The Maryland
Tobacco Inspection Act of 1747,” Journal of Economic History 40 (1980), 551–
69. A good introduction to bound and unfree labor in Virginia is Warren M.
Billings, “The Law of Servants and Slaves in Seventeenth-Century Virginia,”
Virginia Magazine of History and Biography 99 (1991), 45–62. More comprehensive
studies of indentured servitude are Abbott Emerson Smith, Colonists in
Bondage: White Servitude and Convict Labor in America, 1607–1776 (Chapel Hill,
NC, 1947), and David W. Galenson, White Servitude in Colonial America: An
Economic Analysis (Cambridge, 1981). Studies of slavery abound. Particularly
useful for gleaning insights into the relationship between the law of slavery
and the economy are David W. Galenson, “Economic Aspects of the Growth
of Slavery in the Seventeenth-Century Chesapeake,” in Barbara L. Solow, ed.,
Slavery and the Rise of the Atlantic System (Cambridge, 1991), 265–92, and Jacob
M. Price, “Credit in the Slave Trade and Plantation Economies,” also in Solow,
ed., Slavery and the Rise of the Atlantic System, 293–339. Essential discussions of
the role of credit in the plantation economies include two studies by Russell
R. Menard: “Financing the Lowcountry Export Boom: Capital and Growth in
Early South Carolina,”William and Mary Quarterly, 3rd ser., 51 (1994), 659–76,
and “Law, Credit, the Supply of Labour, and the Organization of Sugar Production
in the Colonial Greater Caribbean: A Comparison of Brazil and Barbados
in the Seventeenth Century,” in John J. McCusker and Kenneth Morgan, eds.,
The Early Modern Atlantic Economy (Cambridge, 2000), 154–62; as well as Jacob
M. Price, Capital and Credit in British Overseas Trade: The View from the Chesapeake,
1700–1776 (Cambridge, MA, 1980). Peter Mathias, “Risk, Credit and
Kinship in Early Modern Enterprise,” in McCusker and Morgan, eds., The Early
Modern Atlantic Economy, 15–35, provides an even broader perspective.
Bruce H. Mann, Neighbors and Strangers: Law and Community in Early Connecticut
(Chapel Hill, NC, 1987), offers a sustained discussion of the relationship
between law and economy in a Northern colony, with particular reference to
different ways of contracting debts. Deborah A. Rosen, Courts and Commerce:
Gender, Law, and the Market Economy in Colonial New York (Columbus, Ohio,
1997), presents confirming evidence from New York. David Thomas Konig,
“The Virgin and the Virgin’s Sister: Virginia, Massachusetts, and the Contested
Legacy of Colonial Law,” in Russell K. Osgood, ed., The History of the Law in
Massachusetts: The Supreme Judicial Court, 1692–1992 (Boston, 1992), 81–115,
is an invaluable comparative study. A good technical study of commercial credit
instruments is Herbert A. Johnson, The Law Merchant and Negotiable Instruments
in Colonial New York, 1664 to 1730 (Chicago, 1963).
To understand the complex issues of paper money, land banks, and finance,
the best place to start is the rich account by Margaret Ellen Newell, From
Dependency to Independence: Economic Revolution in Colonial New England (Ithaca,
NY, 1998). Older, but still valuable, introductions are RogerW.Weiss, “The
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Issue of Paper Money in the American Colonies, 1720–1774,” Journal of Economic
History 30 (1970), 770–84, and Theodore Thayer, “The Land Bank System in
the American Colonies,” Journal of Economic History 13 (1953), 145–59. Edwin J.
Perkins, American Public Finance and Financial Services, 1700–1815 (Columbus,
OH, 1994), remains an important study, as, of course, does E. James Ferguson,
The Power of the Purse: A History of American Public Finance, 1776–1790 (Chapel
Hill, NC, 1961). Peter J. Coleman, Debtors and Creditors in America: Insolvency,
Imprisonment for Debt, and Bankruptcy, 1607–1900 (Madison, WI, 1974), is the
standard reference work on colonial and state statutory mechanisms for dealing
with failure. A much broader approach to failure is Bruce H. Mann, Republic of
Debtors: Bankruptcy in the Age of American Independence (Cambridge, MA, 2002).
Carl S. Bridenbaugh, Cities in Revolt: Urban Life in America, 1743–1776 (New
York, 1955), remains useful for its descriptions of the impact of war on urban
economies.
Recent work on the spread of banks after the Revolution includes Perkins,
American Public Finance and Financial Services and two works by Robert E.
Wright: TheWealth of Nations Rediscovered: Integration and Expansion in American
Financial Markets, 1780–1850 (Cambridge, 2002) and Origins of Commercial
Banking in America, 1750–1800 (Lanham, MD, 2001). Howard Bodenhorn,
State Banking in Early America: A New Economic History (New York, 2003),
despite its title, focuses primarily on the antebellum era, but it touches on the
Early Republic. Still useful is Bray Hammond, Banks and Politics in America, from
the Revolution to the CivilWar (Princeton, NJ, 1957). For corporations in the Early
Republic, a good place to begin is Pauline Maier, “The Revolutionary Origins
of the American Corporation,”William and Mary Quarterly, 3rd ser., 50 (1993),
51–84. Older works by Joseph Stancliffe Davis, Essays in the Earlier History of
American Corporations, 2 vols. (Cambridge, MA, 1917), and Shaw Livermore,
Early American Land Companies: Their Influence on Corporate Development (New
York, 1939), remain valuable, but they are reminders of how little has been
written on the corporation before its rise to economic and legal preeminence
in the nineteenth century.
chapter 12: law and commerce, 1580–1815
claire priest
(1) Depictions of American Founding Era Policies as Mercantilist
Works describing Founding Era America as “mercantilist” or “neomercantilist”
or as focused on empire-building include William Appleman
Williams, The Contours of American History (New York, 1973); James G.Wilson,
The Imperial Republic: A Structural History of American Constitutionalism from the
Colonial Era to the Beginning of the Twentieth Century (Burlington, VT, 2002);
Niall Ferguson, Colossus: The Price of America’s Empire (New York, 2004); Calvin
H. Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders’
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Constitution (New York, 2005); Harry N. Scheiber, “Economic Liberty and
the Modern State,” in Harry N. Scheiber, ed., The State and Freedom of Contract
(Stanford, CA, 1998); and John E. Crowley, The Privileges of Independence:
Neomercantilism and the American Revolution (Baltimore, MD, 1993).
(2) The British Empire Before the American Revolution
legal regulation of commerce: the navigation acts
and the colonies
Adam Smith’s An Inquiry into the Nature and Causes of the Wealth of Nations
(1776), Book Four, remains an essential account of the legal regulation of the
British Empire. Scholarship on the British Empire of the seventeenth and eighteenth
centuries is still dominated by older comprehensive accounts, including
Lawrence Henry Gipson, The British Empire before the American Revolution, 15
vols. (Caldwell, ID, 1936–70); Lawrence Henry Gipson, The Coming of the Revolution,
1763–1775 (New York, 1954); George Louis Beer, The Old Colonial
System, 1660–1754 (New York, 1912), The Origins of the British Colonial System,
1578–1660 (New York, 1908), and British Colonial Policy, 1754–1765 (New
York, 1907); Charles M. Andrews, The Colonial Period of American History, especially
Vol. 4: England’s Commercial and Colonial Policy (New Haven, CT, 1938);
Lawrence A. Harper, The English Navigation Laws: A Seventeenth-Century Experiment
in Social Engineering (New York, 1939); and Charles Wilson, Profit and
Power: A Study of England and the Dutch Wars (New York, 1957).
More recent important works are John J. McCusker, “British Mercantilist
Policies and the American Colonies,” in Stanley L. Engerman and Robert E.
Gallman eds., The Cambridge Economic History of the United States, vol. 1 (New
York, 1996), 337–62; Jack P. Greene, Peripheries and Center: Constitutional Development
in the Extended Polities of the British Empire and the United States, 1607–
1788 (Athens, GA, 1986); Michael Kammen, Empire and Interest: The American
Colonies and the Politics of Mercantilism (Philadelphia, PA, 1970); and Robert
Paul Thomas, “A Quantitative Approach to the Study of the Effects of British
Imperial Policy upon Colonial Welfare: Some Preliminary Findings,” Journal
of Economic History 25 (1965), 615–38. A more comprehensive list of sources
can be found in the notes of John J. McCusker and Russell R. Menard, The
Economy of British America, 1607–1789 (Chapel Hill, NC, 1991), 35–50.
english domestic politics and policies
Two recent works powerfully demonstrate the links between the emergence of
democracy and the English financial revolution of the seventeenth and eighteenth
centuries: James Macdonald, A Free Nation Deep in Debt: The Financial
Roots of Democracy (New York, 2003), and Niall Ferguson, The Cash Nexus:
Money and Power in the Modern World, 1700–2000 (New York, 2001). The connections
between the development of the English central state and the English
navy are explored in Paul M. Kennedy, The Rise and Fall of British Naval
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Mastery (Amherst, NY, 1998). For a detailed account of the contested politics
underlying the enactment of the Navigation Acts and England’s entry into the
Anglo-Dutch Wars, see Steven C. A. Pincus, Protestantism and Patriotism: Ideologies
and the Making of English Foreign Policy, 1650–1668 (New York, 1996)
and “From Holy Cause to Economic Interest: The Study of Population and
the Invention of the State,” in Alan Houston and Steve Pincus, eds., A Nation
Transformed: England After the Restoration (New York, 2001), 272–98.
customs enforcement and colonial smuggling
The best accounts of the development of the colonial customs service and the
Vice-admiralty courts in colonial America are Thomas C. Barrow, Trade and
Empire: The British Customs Service in Colonial America, 1660–1775 (Cambridge,
MA, 1967); Oliver M. Dickerson, The Navigation Acts and the American Revolution
(Philadelphia, PA, 1951); and Carl Ubbelohde, The Vice-Admiralty Courts and
the American Revolution (Chapel Hill, NC, 1960). The most important new work
on the operation of the vice-admiralty courts is David R. Owen and Michael C.
Tolley, Courts of Admiralty in Colonial America: The Maryland Experience, 1634–
1776 (Durham, NC, 1995). On smuggling into North America from the non-
English Caribbean and trade with the enemy during the Seven Years War, see
Richard Pares, War and Trade in the West Indies, 1739–1763 (London, 1963);
John W. Tyler, “The Long Shadow of Benjamin Barons: The Politics of Illicit
Trade at Boston, 1760–1762,” American Neptune 40 (1980), 245–79; Albert
B. Southwick, “The Molasses Act – Source of Precedents,” William and Mary
Quarterly, 3rd ser., 8 (1951), 389–405; and Richard Sheridan, “The Molasses
Act and the Market Strategy of the British Sugar Planters,” Journal of Economic
History 17 (1957), 62–83.
(3) Colonial Legal and Economic Development
The section on colonial monetary policy draws from earlier work: Claire Priest,
“Currency Policies and Legal Development in ColonialNewEngland,”Yale Law
Journal 110 (2001), 1303–1405; Claire Priest, “Colonial Courts and Secured
Credit: Early American Commercial Litigation and Shays’ Rebellion,” Yale
Law Journal 108 (1999), 2413–2450; as well as Leslie V. Brock, The Currency
of the American Colonies, 1700–1764: A Study in Colonial Finance and Imperial
Relations (New York, 1975); Curtis P. Nettels, The Money Supply of the American
Colonies Before 1720 (Clifton, NJ, 1973); and James H. Soltow, The Economic Role
of Williamsburg (Williamsburg, VA, 1965). The section on colonial property
policy derives from Claire Priest, “Creating an American Property Law: Alienability
and Its Limits in American History,” Harvard Law Review 120 (2006),
385–459. The section on commercial policy and inspection draws from Albert
Anthony Giesecke, American Commercial Legislation Before 1789 (Union, New
Jersey, 2001 [1910]), and Arthur L. Jensen, The Maritime Commerce of Colonial
Philadelphia (Madison, WI, 1963). The discussion of colonial arbitration draws
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from Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge,
MA, 1977), 140–59, and Eben Moglen, “Commercial Arbitration in
the Eighteenth Century: Searching for the Transformation of American Law,”
Yale Law Journal 93 (1983), 135–52.
Colonial legislation on economic matters has been studied most extensively
by historians and economic historians in local studies. The most useful of these
accounts are, for the New England colonies, Bernard Bailyn, The New England
Merchants in the Seventeenth Century (Cambridge, MA, 1979), and W. T.
Baxter, The House of Hancock: Business in Boston, 1724–1775 (Cambridge, MA,
1945); for the Middle Atlantic colonies, Arthur L. Jensen, The Maritime Commerce
of Colonial Philadelphia (Madison, WI, 1963); Thomas M. Doerflinger, A
Vigorous Spirit of Enterprise: Merchants and Economic Development in Revolutionary
Philadelphia (Chapel Hill, NC, 1986); Harrold E. Gillingham, Marine Insurance
in Philadelphia, 1721–1800 (Philadelphia, PA, 1933); Herbert Alan Johnson,
The Law Merchant and Negotiable Instruments in Colonial New York, 1664–1730
(Chicago, 1963); and Virginia D. Harrington, The New York Merchant on the
Eve of the Revolution (New York, 1935); for the Southern continental colonies,
James H. Soltow, The Economic Role of Williamsburg (Williamsburg, VA, 1965);
Jacob M. Price, Capital and Credit in the British Overseas Trade: The View from the
Chesapeake, 1700–1776 (Cambridge, MA, 1980); and S. Max Edelson, Plantation
Enterprise in Colonial South Carolina (Cambridge, MA, 2006); for the West
Indies, Richard B. Sheridan, Sugar and Slavery, An Economic History of the British
West Indies, 1623–1775 (Jamaica, 1994); Russell R. Menard, “Law, Credit, the
Supply of Labour, and the Organization of Sugar Production in the Colonial
Greater Caribbean: A Comparison of Brazil and Barbados in the Seventeenth
Century,” in John J. McCusker and Kenneth Morgan, eds., The Early Modern
Atlantic Economy (New York, 2000), 154–62; Jacob M. Price, “Credit in the
Slave Trade and Plantation Economies,” in Barbara L. Solow ed., Slavery and
the Rise of the Atlantic System (New York, 1991), 293–339; Richard Pares, Yankees
and Creoles: The Trade Between North America and the West Indies Before the
American Revolution (Cambridge, MA, 1956) and Merchants and Planters (New
York, 1960). On indentured servitude, see DavidW. Galenson, “Labor Market
Behavior in colonial America: Servitude, Slavery, and Free Labor,” in DavidW.
Galenson, ed., Markets in History: Economic Studies of the Past (New York, 1989),
52–96 and DavidW. Galenson, White Servitude in Colonial America: An Economic
Analysis (New York, 1981). On slave importation to the colonies, see Darlene
Clark Hine,William C. Hine, and Stanley Harrold, The African-American
Odyssey (Upper Saddle River, NJ, 2006).
The most useful reference surveying the economic history of the four major
regions of the continental colonies is John J. McCusker and Russell R. Menard,
The Economy of British America, 1607–1789 (Chapel Hill, NC, 1991). Marc
Egnal has synthesized data on colonial economic growth in NewWorld Economies:
The Growth of the Thirteen Colonies and Early Canada (New York, 1998). Other
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important general accounts are Edwin J. Perkins, The Economy of Colonial America
(NewYork, 1980), and The Cambridge Economic History of the United States, Stanley
L. Engerman and Robert E. Gallman eds., vol. 1 (New York, 1996). For an
examination of cultural differences between colonial regions, see Jack P. Greene,
Pursuits of Happiness, The Social Development of Early Modern British Colonies and
the Formation of American Culture (Chapel Hill, NC, 1988).
(4) Revolutionary War and Founding Era
The section on Founding Era policies draws from reports to Congress in the
American State Papers; Congressional debates in the Annals of Congress; and the
sources included in Early American Imprints, Series I: Evans, 1639–1800 (Readex),
Eighteenth Century Collections Online (Gale), and the Making of Modern Law: Legal
Treatises, 1800–1926 (Gale).
The following list is a small sample of the tremendous body of scholarship
on the legal, political, and economic history of the Founding period. Scholarship
on the origins of the American Revolution and the Constitution include
T. H. Breen, The Marketplace of Revolution: How Consumer Politics Shaped American
Independence (New York, 2004); Curtis P. Nettels, The Emergence of a National
Economy, 1775–1815 (White Plains, NY, 1962); Richard Buel, Jr., In Irons:
Britain’s Naval Supremacy and the American Revolutionary Economy (New Haven,,
CT, 1998); FrederickW. Marks, III, Independence on Trial: Foreign Affairs and the
Making of the Constitution (Baton Rouge, LA, 1973); Calvin H. Johnson, Righteous
Anger at the Wicked States: The Meaning of the Founders’ Constitution (New
York, 2005); James F. Shepherd & Gary M. Walton, Shipping, Maritime Trade,
and the Economic Development of Colonial North America (Cambridge, UK, 1972);
Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776–1860
(Cambridge, MA, 1948); Orrin Leslie Elliott, The Tariff Controversy in the United
States, 1789–1833 (Palo Alto, CA, 1892); and Malcolm Rogers Eiselen, The
Rise of Pennsylvania Protectionism (New York, 1974).
Each of us writing in this field is, of course, indebted to the scholarship of
the great colonial and Revolutionary era scholars Edmund S. Morgan, Bernard
Bailyn, and GordonWood: see Edmund S. Morgan, American Slavery, American
Freedom: The Ordeal of Colonial Virginia (New York, 1975), Inventing the People:
The Rise of Popular Sovereignty in England and America (New York, 1988), and
The Birth of the Republic, 1763–89 (Chicago, 1992); Edmund S. Morgan and
Helen M. Morgan, The Stamp Act Crisis: Prologue to Revolution (Chapel Hill, NC,
1995 [1953]); Gordon S.Wood, The Radicalism of the American Revolution (New
York, 1993), The Creation of the American Republic, 1776–1787 (Chapel Hill,
1969), and The American Revolution: A History (New York, 2003); and Bernard
Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA, 1967),
The New England Merchants in the Seventeenth Century (Cambridge, MA, 1979),
Atlantic History: Concept and Contours (Cambridge, MA, 2005), and The Ordeal
of Thomas Hutchinson (Cambridge, MA, 1974).
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The best scholarship on Jefferson’s economic and political program includes
Drew R. McCoy, The Elusive Republic: Political Economy in Jeffersonian America
(Williamsburg, VA, 1980), and Peter S. Onuf, Jefferson’s Empire: The Language of
American Nationhood (Charlottesville, VA, 2000). Founding Era tensions relating
to federalism are explored in Cathy D. Matson and Peter S. Onuf, A Union
of Interests: Political and Economic Thought in Revolutionary America (Lawrence,
KS, 1990) and Max M. Edling, A Revolution in Favor of Government: Origins of the
U.S. Constitution and the Making of the American State (New York, 2003).Works
that have focused on the importance of interstate diversity to Founding Era
politics include Merrill Jensen, “The Sovereign States: Their Antagonisms and
Rivalries and Some Consequences” and the other essays in Ronald Hoffman and
Peter J. Albert, eds., Sovereign States in an Age of Uncertainty (Charlottesville,
VA, 1981), 226–50, and Jack P. Greene, Peripheries and Center: Constitutional
Development in the Extended Polities of the British Empire and the United States,
1607–1788 (Athens, GA, 1986).
chapter 13: law and the origins of the american revolution
jack p. greene
The question of the legitimacy of American constitutional pretensions during
the pre-Revolutionary debate, the central problem treated in this chapter, has
been debated widely in the secondary literature. Indeed, the classic treatments
of this problem appeared more than seventy years ago, with Charles H. Mac-
Ilwain, The American Revolution:AConstitutional Interpretation (NewYork, 1923),
affirming the legitimacy of those pretensions and Robert L. Schuyler, Parliament
and the British Empire: Some Constitutional Controversies Concerning Imperial Legislative
Jurisdiction (New York, 1929), denying them. In the same era, Andrew
C. McLaughlin, The Foundations of American Constitutionalism (NewYork, 1932),
and A Constitutional History of the United States (New York, 1935), suggestively
explored early American constitutional development in terms that were more
favorable to the interpretation of McIlwain, whereas Randolph G. Adams, The
Political Ideas of the Revolution (Durham, NC, 1922), and Carl L. Becker, The
Declaration of Independence (New York, 1922), explored the allegedly shifting
grounds of colonial opposition to Parliamentary taxation.
In the quarter-century immediately after World War II, several scholars
published important monographs that further illuminated the constitutional
and legal issues in dispute in the years before American independence. These
include Edmund S. Morgan and Helen M. Morgan, The Stamp Act Crisis: Prologue
to Revolution (Chapel Hill, NC, 1953); Bernhard Knollenberg, Origins of the
American Revolution, 1759–1766 (New York, 1960); Carl Ubbelohde, The Vice-
Admiralty Courts and the Revolution (Chapel Hill, NC, 1960); Jack P. Greene,
The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies,
1689–1776 (Chapel Hill, NC, 1963); BenjaminWoods Labaree, The Boston Tea
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Party (New York, 1964); and John Shy, Toward Lexington: The Role of the British
Army in the Coming of the American Revolution (Princeton, 1965).
At the same time, Bernard Bailyn, The Ideological Origins of the American Revolution
(Cambridge, MA, 1967) provided an especially penetrating study of the
ideological foundations and development of pre-Revolutionary thought, albeit
one that slighted the legal dimensions and context of that thought, whereas
Pauline S. Maier, “Popular Uprisings and Civil Authority in Eighteenth-
Century America,” William and Mary Quarterly, 3rd ser., 27 (1970), 3–35,
sensitively examined the role of the crowd in early American public life, and
Hiller B. Zobbel, The Boston Massacre (New York, 1970), provided a law-andorder
account of mob protests and resistance in Boston.
During the last quarter of the twentieth century, legal historians took up the
problem of the coming of the American Revolution in a systematic way. In the
process they have produced an impressive body of scholarship that is essential
reading for anyone who wishes to understand the legal and constitutional
dimensions to the controversy between Britain and the colonies. The most
prolific of these historians has been John Phillip Reid. His books dealing
with the many aspects of this subject are In a Defiant Stance: The Conditions of
Law in Massachusetts Bay, the Irish Comparison, and the Coming of the American
Revolution (University Park, PA, 1977); In a Rebellious Spirit: The Argument of
Facts, the Liberty Riot, and the Coming of the American Revolution (University
Park, PA, 1979); In Defiance of the Law: The Standing-Army Controversy, the Two
Constitutions, and the Coming of the American Revolution (Chapel Hill, NC, 1981);
Constitutional History of the American Revolution: The Authority of Rights (Madison,
WI, 1986); Constitutional History of the American Revolution: The Authority to Tax
(Madison, WI, 1987); The Concept of Liberty in the Age of the American Revolution
(Chicago, 1988); The Concept of Representation in the Age of the American Revolution
(Chicago, 1989); Constitutional History of the American Revolution: The Authority to
Legislate (Madison, WI, 1991); Constitutional History of the American Revolution:
The Authority of Law (Madison, WI, 1991); and Constitutional History of the
American Revolution: Abridged Edition (Madison, WI, 1995).
Other important contributions to this new legal history literature on the
American Revolution include William E. Nelson, “The Legal Restraint of
Power in Pre-Revolutionary America: Massachusetts as a Case Study, 1760–
1775,” American Journal of Legal History 18 (1974), 1–32, and The Americanization
of the Common Law: The Impact of Legal Change on Massachusetts Society, 1750–
1830 (Cambridge, MA, 1975); Barbara A. Black, “The Constitution of the
Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124
(1976), 1157–1211; Thomas C. Grey, “Origin of the Unwritten Constitution:
Fundamental Law in American Revolutionary Thought,” Stanford Law Review
30 (1978), 843–93; M. G. Smith, The Writs of Assistance Case (Berkeley, 1978);
Hendrik B. Hartog, ed., Law in the American Revolution and the Revolution in the
Law (New York, 1981); and J. R. Pole, “‘A Quest of Thoughts’: Representation
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and Moral Agency in the Early Anglo-American Jury,” Proceedings of the 13th
British Legal History Conference (London, 2002), 102–30. Jack P. Greene, “From
the Perspective of Law: Context and Legitimacy in the Origins of the American
Revolution,” South Atlantic Quarterly 75 (1986), 56–77 provides an extended
discussion of the relevance of many of these works for non-legal historians of
the American Revolution.
The most comprehensive study of the constitutional development of the
British Empire, which complements the work of legal historians, is Jack P.
Greene, Peripheries and Center: Constitutional Development in the Extended Polities
of the British Empire and the United States 1607–1788 (Athens, GA, 1986), from
which much of this chapter is adapted.
chapter 14: confederation and constitution
jack n. rakove
There were three main phases in the development of American constitutionalism
during the Revolutionary era: the imperial controversy with Britain,
1765–75; the framing of the first state constitutions and the Articles of Confederation,
1775–81; and the reconsideration of these constitutions that began
with the final ratification of the Articles in 1781 and culminated in the great
debate of 1787–89 over the Federal Constitution. Many scholarly works span
two or occasionally all three of these phases, but for reasons of convenience
and historical logic alike, it is useful to describe the literature for each phase
separately.
Two landmark works dominate the scholarly interpretation of the constitutional
origins of the Revolution: Edmund S. Morgan and Helen M. Morgan,
The Stamp Act Crisis: Prologue to Revolution (Chapel Hill, NC, 1953), and Bernard
Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA, 1967;
enlarged edition, 1992). Together, these two works explained how American
and British ideas on essential constitutional ideas, though drawn from
common sources, had begun to diverge in critical ways by the 1760s. Also
useful in this respect is John Phillip Reid, Constitutional History of the American
Revolution, 4 vols. (Madison, WI, 1986–93). Jack P. Greene, Peripheries
and Center: Constitutional Development in the Extended Polities of the British Empire
and the United States, 1608–1788 (Athens, GA, 1986), examines the divergent
conceptions of imperial authority and provincial rights that came to a head
after 1765. Other important works on the coming of the Revolution include
Merrill Jensen, The Founding of a Nation: A History of the American Revolution,
1763–1776 (New York, 1968); Ian Christie and Benjamin Woods Labaree,
Empire or Independence, 1760–1776: British-American Dialogue on the Coming of
the American Revolution (New York, 1976); and Pauline Maier, From Resistance to
Revolution: Colonial Radicals and the Development of American Opposition to Britain,
1765–1776 (New York, 1972). Three volumes by Peter D. G. Thomas explain
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why British leaders found it difficult to acknowledge, much less accommodate,
colonial claims: British Politics and the Stamp Act Crisis: The First Phase of the
American Revolution, 1763–1767 (Oxford, 1975); The Townshend Duties Crisis:
The Second Phase of the American Revolution, 1767–1773 (Oxford, 1987); and
Tea Party to Independence: The Third Phase of the American Revolution, 1773–1776
(Oxford, 1991). Benjamin Woods Labaree, The Boston Tea Party (New York,
1963), analyzes the episode that prompted the British government to resort
to a policy of repression. It should be read in conjunction with two other fine
books on the volatile politics of Massachusetts: Bernard Bailyn, The Ordeal of
Thomas Hutchinson (Cambridge, MA, 1974), and Richard D. Brown, Revolutionary
Politics in Massachusetts: The Boston Committee of Correspondence and the Towns,
1772–1774 (Cambridge, MA, 1970).
The collapse of imperial authority in America is well described in David
Ammerman, In the Common Cause: American Response to the Coercive Acts of 1774
(Charlottesville, VA, 1974); Neil Stout, The Perfect Crisis: The Beginning of the
Revolutionary War (New York, 1976); and David Hackett Fischer, Paul Revere’s
Ride (NewYork, 1994). For the origins of the Continental Congress, see Jerrilyn
Green Marston, King and Congress: The Transfer of Political Legitimacy, 1774–
1776 (Princeton, NJ, 1987), and Jack N. Rakove, The Beginnings of National
Politics: An Interpretive History of the Continental Congress (NewYork, 1979), which
also examines the drafting and ratification of the Articles of Confederation while
challenging the older Progressive interpretation of Merrill Jensen, The Articles
of Confederation: An Interpretation of the Social-Constitutional History of the American
Revolution, 1774–1781 (Madison, WI, 1940). Pauline Maier, American Scripture:
Making the Declaration of Independence (New York, 1997), offers a brisk account
of the final movement toward separation.
The most creative aspects of this phase of revolutionary constitutionalism
took place, however, within the individual states. The dominant and paradigmatic
study of this process is Gordon S. Wood, The Creation of the American
Republic, 1776–1787 (Chapel Hill, NC, 1969). It can be helpfully complemented
by several other works, notably includingWilli Paul Adams, The First
American Constitutions: Republican Ideology and the Making of the State Constitutions
in the Revolutionary Era, trans. Rita and Robert Kimber (Chapel Hill,
NC, 1980); Marc W. Kruman, Between Authority and Liberty: State Constitution
Making in Revolutionary America (Chapel Hill, NC, 1997); and Donald Lutz,
Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions
(Baton Rouge, LA, 1980). Valuable studies of constitution-making
within individual states include Jere R. Daniell, Experiment in Republicanism:
New Hampshire Politics and the American Revolution, 1741–1794 (Cambridge,
MA, 1970); Ronald Peters, The Massachusetts Constitution of 1780: A Social
Compact (Amherst, MA, 1978); Ronald Hoffman, A Spirit of Dissension: Economics,
Politics, and the Revolution in Maryland (Baltimore, 1973); and Edward
Countryman, A People in Revolution: The American Revolution and Political Society
in New York, 1760–1790 (Baltimore, 1981). Special mention should be made
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of the documents collected in Oscar Handlin and Mary F. Handlin, eds., The
Popular Sources of Political Authority: Documents on the Massachusetts Constitution
of 1780 (Cambridge, MA, 1966). An exemplary study of the difficulties states
faced in meeting the burdens of supporting the war is Richard Buel, Dear
Liberty: Connecticut’s Mobilization for the Revolutionary War (Middletown, CT,
1980). Also useful is John E. Selby, The Revolution in Virginia, 1775–1783
(Charlottesville, VA, 1988), and the essays collected in Ronald Hoffman and
Peter J. Albert, eds., Sovereign States in an Age of Uncertainty (Charlottesville,
VA, 1981).
The neo-Progressive interpretation of the movement for federal constitutional
reform is best represented by Merrill Jensen, The New Nation: A History
of the United States During the Confederation, 1781–1789 (New York, 1950),
and E. James Ferguson, The Power of the Purse: A History of American Public
Finance, 1776–1790 (Chapel Hill, NC, 1961). For a different view of Congressional
financial policy during the early 1780s, see Clarence Ver Steeg, Robert
Morris: Revolutionary Financier (Philadelphia, 1954). The central role of questions
of taxation in the movement toward constitutional reform after 1783 is
analyzed in Roger H. Brown, Redeeming the Republic: Federalists, Taxation, and
the Origins of the Constitution (Baltimore, 1993), and Calvin H. Johnson, Righteous
Anger at the Wicked States: The Meaning of the Founders’ Constitution (New
York, 2005). The relation between ownership of the revolutionary debt and
the Constitution was, of course, the subject of Charles A. Beard, An Economic
Interpretation of the Constitution (New York, 1913), arguably the most influential
work ever published on the subject even if its evidentiary shortcomings have
long been evident. For more subtle accounts of the relation between economic
interests and constitution-making, see Robert McGuire, To Form a More Perfect
Union: A New Economic Interpretation of the United States Constitution (New
York, 2003); Cathy D. Matson and Peter S. Onuf, A Union of Interests: Political
and Economic Thought in Revolutionary America (Lawrence, KS, 1990); and two
works by the ever provocative Forrest McDonald, We the People: The Economic
Origins of the Constitution (Chicago, 1953) and E Pluribus Unum: The Formation
of the American Republic, 1776–1790 (Boston, 1965). Peter S. Onuf, Origins of
the Federal Republic: Jurisdictional Controversies in the United States, 1775–1787
(Philadelphia, 1983), traces the relation between the competing land claims
of individual states and the development of a conception of federalism that
would grant each member of the union the territorial security it could not be
confident of assuring for itself.
The two best brief introductions to the debates at the Philadelphia Convention
are the classic account by Max Farrand, The Framing of the Constitution of
the United States (New Haven, CT, 1913), and the sprightly recent account by
Carol Berkin, A Brilliant Solution: Inventing the American Constitution (New York,
2002). For more detailed narratives, see Clinton Rossiter, 1787: The Grand Convention
(New York, 1966); Catherine Drinker Bowen, Miracle at Philadelphia:
The Story of the Constitutional Convention, May to September 1787 (Boston, 1966);
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and Christopher Collier and James L. Collier, Decision at Philadelphia: The Constitutional
Convention of 1787 (New York, 1986). More analytical accounts, written
from the vantage point of political science, include Calvin Jillson, Constitution
Making: Conflict and Consensus in the Federal Convention of 1787 (New York,
1988), and David Brian Robertson, The Constitution and America’s Destiny (New
York, 2005). Rosemarie Zagarri, The Politics of Size: Representation in the United
States, 1776–1850 (Ithaca, NY, 1987), is helpful on the classic conflict between
large and small states. Max Edling, A Revolution in Favor of Government: Origins
of the Constution and the Making of the American State (New York, 2003), makes
a strong case for the primacy of national security concerns in the framing of
the Constitution. A similar approach is taken in David C. Hendrickson, Peace
Pact: The Lost World of the American Founding (Lawrence, KS, 2003).
Numerous studies look beyond the immediate politics of constitutionmaking
to explore the role of ideas and ideologies in the reshaping of American
political thinking by the late 1780s. Along with Gordon Wood, Creation of
the American Republic (cited earlier), leading studies include Forrest McDonald,
Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, KS,
1985), and Jack N. Rakove, Original Meanings: Politics and Ideas in the Making
of the Constitution (New York, 1996), which takes as its point of departure
the modern debate over the theory of constitutional interpretation known as
originalism. Cecilia Kenyon, “Men of Little Faith: The Anti-Federalists on the
Nature of Representative Government,” William and Mary Quarterly, 3rd ser.,
12 (1955), 3–43, was a seminal essay that influenced scholarly interpretations of
the constitutional debate of the late 1780s more generally. Other helpful studies
and collections include Ralph Ketcham, Framed for Posterity: The Enduring Philosophy
of the Constitution (Lawrence, KS, 1993); Samuel F. Beer,To Make a Nation:
The Rediscovery of American Federalism (Cambridge, MA, 1993); Herman Belz,
Ronald Hoffman, and Peter J. Albert, eds., To Form a More Perfect Union: The
Critical Ideas of the Constitution (Charlottesville, VA, 1992); Michael Lienesch,
New Order of the Ages: Time, the Constitution, and the Making of Modern American
Political Thought (Princeton, NJ, 1988); Jennifer Nedelsky, Private Property
and the Limits of American Constitutionalism: The Madisonian Framework and Its
Legacy (Chicago, 1990); David J. Siemers, Ratifying the Republic: Antifederalists
and Federalists in Constitutional Time (Stanford, CA, 2002); Richard Beeman,
Stephen Botein, and Edward C. Carter II, eds., Beyond Confederation: Origins of
the Constitution and American National Identity (Chapel Hill, NC, 1987); Terence
Ball and J. G. A. Pocock, eds., Conceptual Change and the Constitution (Lawrence,
KS, 1988); and LeonardW. Levy and Dennis J. Mahoney, eds., The Framing and
Ratification of the Constitution (New York, 1987). Carl J. Richard, The Founders
and the Classics: Greece, Rome, and the American Enlightenment (Cambridge, MA,
1994), examines the substantial influence that writings from classical antiquity
exerted on American political thinking in the Revolutionary era. The
distinguished historian of science, I. Bernard Cohen, does something similar
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in Science and the Founding Fathers: Science in the Political Thought of Jefferson,
Franklin, Adams, and Madison (New York, 1995).
A significant portion of scholarly writings on the political ideas expressed in
the Constitution has been devoted to James Madison, as both a leading member
of the 1787 Convention and one of the two principal authors of The Federalist.
Leading biographical studies include Ralph Ketcham, James Madison: A Biography
(Charlottesville, VA, 1971); Lance Banning, The Sacred Fire of Liberty: James
Madison and the Founding of the Federal Republic (Ithaca, NY, 1995); and Jack
N. Rakove, James Madison and the Creation of the American Republic (New York,
2006, rev. ed.). Several essays by Douglass Adair were fundamental to the modern
understanding of the meaning and significance of Madison’s contributions
to The Federalist, especially in his much-analyzed Federalist 10: “The Authorship
of the Disputed Federalist Papers,”William and Mary Quarterly, 3rd ser., 1
(1944), 97–122, 235–64; “The Tenth Federalist Revisited,” William and Mary
Quarterly, 3rd ser., 8 (1951); and “‘That Politics May Be Reduced to a Science’:
David Hume, James Madison, and the Tenth Federalist,” Huntington Library
Quarterly 20 (1957), 343–60. The last essay’s emphasis on Hume’s “influence”
on Madison became an independent source of controversy in itself, perhaps
now best approached by beginning with the most recent entry in the scholarly
lists: Mark Spencer, “Hume and Madison on Faction,”William and Mary Quarterly,
3rd ser., 59 (2002), 869–96. Other important interpretive essays include
Martin Diamond, “Democracy and The Federalist: A Reconsideration of the
Framers’ Intents,” American Political Science Review 53 (1959), 52–68; Daniel
Walker Howe, “The Political Psychology of The Federalist,” American Political
Science Review 44 (1987), 485–509; Charles Hobson, “The Negative on State
Laws: James Madison, the Constitution, and the Crisis of Republican Government,”
American Political Science Review 36 (1979), 215–35; and Larry Kramer,
“Madison’s Audience,” Harvard Law Review 112 (1999), 611–79. A helpful collection
of essays by political scientists is Samuel Kernell, ed., James Madison:
The Theory and Practice of Republican Government (Stanford, CA, 2003). Leading
books on The Federalist include Charles R. Kesler, ed., Saving the Revolution: The
Federalist Papers and the American Founding (New York, 1987); David F. Epstein,
The Political Theory of The Federalist (Chicago, 1984); Morton White, Philosophy,
The Federalist, and the Constitution (New York, 1987); Albert Furtwangler, The
Authority of Publius: A Reading of the Federalist Papers (Ithaca, NY, 1984); and
Edward Millican, One United People: The Federalist Papers and the National Idea
(Lexington, KY, 1990). Alexander Hamilton, Madison’s co-author as Publius
(and indeed the leading author of the entire work), has received less attention
as a constitutional theorist, but two helpful works are Gerald Stourzh, Alexander
Hamilton and the Idea of Republican Government (Stanford, CA, 1970) and
Karl-Friedrich Walling, Alexander Hamilton on War and Free Government
(Lawrence, KS, 1999). The best life is Forrest McDonald, Alexander Hamilton:
A Biography (New York, 1979).
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Numerous books examine the politics of the ratification of the Constitution.
Two good introductions are Robert Rutland, The Ordeal of the Constitution: The
Antifederalists and the Ratification Struggle of 1787–1788 (Norman, OK, 1966),
and Jackson Turner Main, The Antifederalists: Critics of the Constitution, 1781–
1788 (Chapel Hill, NC, 1961). Also helpful is Steven R. Boyd, The Politics
of Opposition: Antifederalists and the Acceptance of the Constitution (Millwood, NY,
1979), and the essays collected in Michael Gillespie and Michael Lienesch, eds.,
Ratifying the Constitution (Lawrence, KS, 1989), and Patrick T. Conley and John
P. Kaminski, eds., The Constitution and the States: The Role of the Original Thirteen
in the Framing and Adoption of the Federal Constitution (Madison, WS, 1988).
Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in
America, 1788–1828 (Chapel Hill, NC, 1999), examines the political legacy of
the Constitution’s opponents. Linda Grant De Pauw, The Eleventh Pillar: New
York State and the Federal Constitution (Ithaca, NY, 1966), is an exemplary study
of ratification within a critical state in which Anti-Federalists predominated.
The adoption of the first ten amendments to the Constitution – better known
as the Bill of Rights – is often seen as the culmination as well as the sequel
to the constitutional debates of 1787–88. Many studies of the subject focus
on the historical origins and legal content of the particular rights that finally
made their way into the constitutional text. Perhaps the leading scholar in
this field has been Leonard Levy, and many of his findings are distilled in his
book, Original Intent and the Framers’ Constitution (New York, 1988). But Levy’s
approach is better illustrated in two of his monographs: The Emergence of a Free
Press (New York, 1985) and Origins of the Fifth Amendment: The Right Against
Self-Incrimination (New York, 1968). For broader surveys, see Patrick T. Conley
and John P. Kaminski, eds., The Bill of Rights and the States: The Colonial and
Revolutionary Origins of American Liberties (Madison, WS, 1992); Jon Kukla,
ed., The Bill of Rights: A Lively Heritage (Richmond, VA, 1987); and Michael
Lacey and Knud Haakonssen, eds., A Culture of Rights: The Bill of Rights in
Philosophy, Politics, and Law: 1791 and 1991 (New York, 1991). Two works
that focus on James Madison’s special role in the adoption of the amendments
are Robert A. Goldwin, From Parchment to Power: How James Madison Used
the Bill of Rights to Save the Constitution (Washington, D.C., 1997) and Paul
Finkelman, “James Madison and the Bill of Rights: A Reluctant Paternity,”
Supreme Court Review (1990), 301–47. For a somewhat idiosyncratic account
discounting the significance of Madison’s understanding of what he was doing,
see Akhil Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT,
1998).
chapter 15: the consolidation of the early federal system
saul cornell and gerald leonard
Constitutional history encompasses the structures and processes through which
the law is made. Of course, it must attend to the specific legal limits imposed
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on government by or in the name of a written constitution, such as the restrictions
enumerated in the Bill of Rights. But it is much broader than that. In
the case of the Early Republic – the formative period of American constitutional
history – a full analysis must explain how the new Federal Constitution
pervasively structured law and politics. Conversely, but just as importantly, it
requires understanding how law and politics created constitutional meaning.
Writing this history, and understanding the historical dynamics of constitutional
government, consequently, requires attention not just to constitutional
texts, conventions, and courts but to struggles to reshape the relations of public
power in all its forms.With this capacious definition of constitutional history,
it is difficult to place any good historical writing categorically beyond the reach
of constitutional history. However, this bibliographic essay attempts to offer
one definition of the constitutional history of the Early Republic by its selection
of those works we think most central.
At the outset, the chapter offers, in effect, a chronological narrative of federalism,
the battle in the first generation to bend the Constitution and the
Founding in the direction of consolidation, on the one hand, or state autonomy,
on the other. The essential background for this story remains, after almost
forty years, Gordon S. Wood, The Creation of the American Republic 1776–1787
(Chapel Hill, NC, 1969). Wood has since followed up with The Radicalism of
the American Revolution (New York, 1992), which provides a sweeping story of
social, political, and constitutional change into the early decades of the nineteenth
century.
The foundation of any understanding of the constitutional history of this
period is an understanding of the period’s political history, which was preoccupied
with constitutional issues. See Stanley Elkins and Eric McKitrick,
The Age of Federalism (New York, 1993); James Roger Sharp, American Politics
in the Early Republic: The New Nation in Crisis (New Haven, CT, 1993);
Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in
America, 1788–1828 (Chapel Hill, NC, 1999); Richard E. Ellis, “The Persistence
of Antifederalism After 1789,” in Richard Beeman, Stephen Botein and
Edward C. Carter III, eds., Beyond Confederation: Origins of the Constitution and
American National Identity (Chapel Hill, NC, 1987); Albrecht Koschnik, “The
Democratic Societies of Philadelphia and the Limits of the American Public
Sphere, Circa 1793–1795,” William and Mary Quarterly, 3rd ser., 58 (2001),
615; James A. Smith, Freedom’s Fetters: The Alien and Sedition Laws and American
Civil Liberties (Ithaca, NY, 1956); K. R. Constantine Gutzman, “The Virginia
and Kentucky Resolutions Reconsidered: An Appeal to the ‘Real Laws’ of Our
Country,” Journal of Southern History 66 (2000), 473; Joanne Freeman, Affairs of
Honor: National Politics in the New Republic (New Haven, CT, 2001); Lance Banning,
The Jeffersonian Persuasion: Evolution of a Party Ideology (Ithaca, NY, 1978);
Peter J. Kastor, The Nation’s Crucible: The Louisiana Purchase and the Creation of
America (New Haven, CT, 2004); J. C. A. Stagg, Mr. Madison’s War: Politics,
Diplomacy, and Warfare in the Early American Republic, 1783–1830 (Princeton,
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NJ, 1983); Roger H. Brown, The Republic in Peril: 1812 (New York, 1964);
James Banner, To the Hartford Convention: The Federalists and the Origins of Party
Politics in Massachusetts, 1789–1815 (New York, 1970); Forrest McDonald,
States’ Rights and the Union: Imperium in Imperio, 1776–1876 (Lawrence, KS,
2000); Andrew C. Lenner, The Federal Principle in American Politics, 1790–1833
(Lanham, MD, 2001); Mark R. Killenbeck, “Pursuing the Great Experiment:
Reserved Powers in a Post-Ratification, Compound Republic,” Supreme Court
Review 81 (1999); R. B. Bernstein, Thomas Jefferson (New York, 2003); David
N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville, VA,
1994); Peter S. Onuf, Jefferson’s Empire: The Language of American Nationhood
(Charlottesville, VA, 2000); Gerald Stourzh, Alexander Hamilton and the Idea of
Republican Government (Stanford, CA, 1970); Ron Chernow, Alexander Hamilton
(New York, 2004); and Ralph L. Ketcham, James Madison: A Biography
(Indianapolis, 1971). Some lawyerly accounts of aspects of this period also
make valuable contributions to the constitutional history of the times. See
Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and
the Rise of Presidential Democracy (Cambridge, 2005) and We the People: Foundations
(Cambridge, 1991); and Akhil Reed Amar, The Bill of Rights: Creation and
Reconstruction (New Haven, CT, 1998). A recent, brief overview of the period
can be found in Paul E. Johnson, The Early American Republic, 1789–1829
(New York, 2007). A far longer one can be found in the opening chapters of
Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York,
2005).
Specifically on the emergence of the new structures of authorities that
were political parties, see Richard Hofstadter, The Idea of a Party System: The
Rise of Legitimate Opposition in the United States, 1780–1840 (Berkeley, 1969);
but also the corrections offered by Gerald Leonard, The Invention of Party
Politics: Federalism, Popular Sovereignty, and Constitutional Development in Jacksonian
Illinois (Chapel Hill, NC, 2002) and “Party as a ‘Political Safeguard of
Federalism’: Martin Van Buren and the Constitutional Theory of Party Politics,”
Rutgers Law Review 54 (2001), 221. On the same subject, see Ronald
P. Formisano, “Deferential-Participant Politics: The Early Republic’s Political
Culture, 1789–1840,” American Political Science Review 68 (1974), 473; Ronald
P. Formisano, “Federalists and Republicans: Parties, Yes – System, No,” in Paul
Kleppner, ed., The Evolution of American Electoral Systems (Westport, CT, 1981);
Ronald P. Formisano, TheTransformation of Political Culture: Massachusetts Parties,
1790s-1840s (New York, 1983); Donald J. Ratcliffe, Party Spirit in a Frontier
Republic: Democratic Politics in Ohio, 1793–1821 (Columbus, OH, 1998); and
Ralph Ketcham, Presidents Above Party: The First American Presidency, 1789–
1829 (Chapel Hill, NC, 1984). Closely related to the rise of parties were
the methods of electing presidential electors and the adoption of the Twelfth
Amendment. See Tadahisa Kuroda, The Origins of the Twelfth Amendment: The
Electoral College in the Early Republic, 1787–1804 (Westport, CT, 1994).
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The literature on “popular constitutionalism” has ballooned in recent years.
The purpose of this literature is to demonstrate that actors other than the
courts – from mobs to political parties to any number of non-judicial officeholders
– controlled the meaning and implementation of constitutions in large
degree. In some ways, this writing is just an extension of those political histories
that understand their topic as having an important constitutional dimension.
But it is also distinguished by its direct engagement with and revision of the
history of judicial review, a history that traditionally portrayed the courts as
the almost exclusive actors in the elaboration of constitutional meaning. Until
recently, the standard citations for the early history of judicial review were Sylvia
Snowiss, Judicial Review and the Law of the Constitution (New Haven, CT, 1990);
Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence, KS,
1989); J. M. Sosin, The Aristocracy of the Long Robe: The Origins of Judicial Review
in America (Westport, CT, 1989); ChristopherWolfe, The Rise of Modern Judicial
Review: From Constitutional Interpretation to Judge-Made Law (New York, 1986);
and Gordon S.Wood, “The Origins of Judicial Review Revisited, or How the
Marshall Court Made More Out of Less,” Washington and Lee Law Review 56
(1999), 787.
But a raft of more sophisticated work has emerged in very recent years.
Snowiss’s work, probably the most influential across the 1990s, has been seriously
undermined by Dean Alfange, Jr., “Marbury v. Madison and Original
Understandings of Judicial Review: In Defense ofTraditionalWisdom,” Supreme
Court Law Review 329 (1993), and Gerald Leonard, “Iredell Reclaimed: Farewell
to Snowiss’s History of Judicial Review,” Chicago-Kent Law Review 81 (2006).
More importantly, new and better accounts of the origins of judicial review
have appeared in Larry D. Kramer, The People Themselves: Popular Constitutionalism
and Judicial Review (New York, 2004); Mary Sarah Bilder, The Transatlantic
Constitution: Colonial Legal Culture and the Empire (Cambridge, MA, 2004); Mary
Sarah Bilder, “The Corporate Origins of Judicial Review,” Yale Law Journal 116
(2006), 502; William Michael Treanor, “Judicial Review before Marbury,” 58
Stanford Law Review 455 (2005); William Michael Treanor, “The Case of the
Prisoners and the Origins of Judicial Review,” University of Pennsylvania Law
Review 143 (1994), 491; and Donald F. Melhorn, “Lest We Be Marshall’d”:
Judicial Powers and Politics in Ohio, 1806–1812 (Akron, OH, 2003). Many of
these offer evidence of extra-judicial control of constitutional meaning, as do
Keith Whittington, Constitutional Construction: Divided Powers and Constitutional
Meaning (Cambridge, MA, 1999); Gary D. Rowe, “Constitutionalism in the
Streets,” Southern California Law Review 78 (2005), 401; and Daniel J. Hulsebosch,
Constituting Empire: New York and the Transformation of Constitutionalism
in the Atlantic World, 1664–1830 (Chapel Hill, NC, 2005). The connections
among the militia, federalism, and popular constitutionalism are explored in
Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of
Gun Control in America (New York, 2006).
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Many groups, however, had little or only attenuated connections to the levers
of power, but still affected constitutional meaning in important ways. These
“constitutional outsiders,” beginning with William Manning and his world,
can be explored further in Samuel Eliot Morison,“William Manning’s The Key of
Libberty,”William and Mary Quarterly, 3rd ser., 13 (1956), 202; Michael Merrill
and SeanWilentz, The Key of Liberty: The Life and Writings of William Manning,
“A Laborer,” 1747–1814 (Cambridge, MA, 1993); Ruth Bogin, “‘Measures So
Glareingly unjust’: A Response to Hamilton’s Funding Plan byWilliam Manning,”
William and Mary Quarterly, 3rd ser., 46 (1989), 315; Christopher L.
Tomlins, Law, Labor, and Ideology in the Early American Republic (Cambridge,
1993); DavidWaldstreicher, In the Midst of Perpetual Fetes: The Making of American
Nationalism, 1776–1820 (Chapel Hill, NC, 1997); and Simon P. Newman,
Parades and the Politics of the Street: Festive Culture in the Early American Republic
(Philadelphia,1997). The constitutional status of women and broader questions
of gender and public power are discussed in Linda Kerber, No Constitutional Right
to Be Ladies: Women and the Obligations of Citizenship (New York, 1998); Catherine
Allgor, Parlor Politics: In Which the Ladies ofWashington Help Build a City and
a Government (Charlottesville, VA, 2000); Susan Branson, These Fiery Frenchified
Dames:Women and Political Culture in Early National Philadelphia (Philadelphia,
2001); and Sandra F. Van Burkleo, “Belonging to the World”: Women’s Rights and
American Constitutional Culture (New York, 2001). On the pro-slavery character
of early constitutionalism, see Paul Finkelman, Slavery and the Founders: Race
and Liberty in the Age of Jefferson (rev. ed., New York, 2001); on African American
resistance, see, e.g., Douglas R. Egerton, Gabriel’s Rebellion: The Virginia Slave
Conspiracies of 1800 & 1802 (Chapel Hill, NC, 1993). Related work appears,
along with essays treating a great variety of aspects of constitutional politics,
in James Horn, Jan Ellen Lewis, and Peter S. Onuf, eds., The Revolution of 1800:
Democracy, Race, and the New Republic (Charlottesville, VA, 2002). And on the
growing but limited scope of voting rights, see Alexander Keyssar, The Right
to Vote: The Contested History of Democracy in the United States (New York, 2000).
Court-centered and especially Supreme-Court-centered constitutional history
focuses much more on the Marshall Court than its predecessors, but the
Court in the 1790s gets valuable treatment in William R. Casto, The Supreme
Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth
(Columbia, SC, 1995); Scott Douglas Gerber, ed., Seriatim: The Supreme Court
before John Marshall (New York, 1998); and Stewart Jay, Most Humble Servants:
The Advisory Role of Early Judges (New Haven, CT, 1997). The famous case of
Chisholm v. Georgia and the passage, in reaction, of the Eleventh Amendment
are described in Clyde E. Jacobs, The Eleventh Amendment and Sovereign Immunity
(Westport, CT, 1972); John V. Orth, The Judicial Power of the United States: The
Eleventh Amendment in American History (New York, 1987); William Fletcher,
“A Historical Interpretation of the Eleventh Amendment: A Narrow Construction
of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against
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Jurisdiction,” Stanford Law Review 35 (1983), 1033; and John J. Gibbons, “The
Eleventh Amendment and State Sovereign Immunity: A Reinterpretation,”
Columbia Law Review 83 (1983), 1889.
Works discussing the early years of the Marshall Court itself include R. Kent
Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge,
LA, 2001); Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule
of Law (Lawrence, KS, 1996); William E. Nelson, Marbury v. Madison and the
Origins and Legacy of Judicial Review (Lawrence, KS, 2000); C. Peter Magrath,
Yazoo: Law and Politics in the New Republic: The Case of Fletcher v. Peck (Providence,
RI, 1967); Robert G. McCloskey, The American Supreme Court (Chicago, 1960;
4th ed. 2005); and David P. Currie, The Constitution in the Supreme Court: The
First Hundred Years, 1789–1888 (Chicago, 1985).
Courts less exalted than the Supreme Court have received much less attention,
but some useful accounts of their doings, discussing also some of this
period’s relatively rare litigation of claims of individual constitutional rights,
can be found in Steven R. Boyd, “The Contract Clause and the Evolution of
American Federalism, 1789–1815,” William and Mary Quarterly, 3rd ser., 44
(1987), 529; James W. Ely, Jr., The Guardian of Every Other Right; A Constitutional
History of Property Rights (New York, 1992); James W. Ely, Jr., “The
Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due
Process,” Constitutional Commentary 16 (1999), 315; F. Thornton Miller, Juries
and JudgesVersus the Law:Virginia’s Provincial Legal Perspective, 1783–1828 (Charlottesville,
VA, 1994); and H. Jefferson Powell, A Community Built on Words:
The Constitution in History and Politics (Chicago, 2002).
Treatment of the judiciary by the public political process is analyzed in
Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic
(New York,1971); Wythe Holt and James R. Perry, “Writs and Rights,
‘Clashing Animosities’: The First Confrontation Between Federal and State
Jurisdictions,” Law and History Review 7 (1989), 89; Peter Charles Hoffer and
N. E. H. Hull, Impeachment in America, 1635–1805 (New Haven, CT, 1984);
Brian Carso, Whom Can We Trust Now?: The Meaning of Treason in the United
States, from the Revolution through the Civil War (Boston, 2006); Maeva Marcus,
ed., Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789 (New
York,1992); Kathryn Turner, “Federalist Policy and the Judiciary Act of 1801,”
William and Mary Quarterly, 3rd ser., 22 (1965), 3; and CharlesWarren, “Legislative
and Judicial Attacks on the Supreme Court of the United States – A
History of the Twenty-Fifth Section of the Judiciary Act,” American Law Review
47 (1913), 1–34, 161–189.
In recent times, it has become easier and easier to get past the secondary
literature and go directly to the primary documents, both in printed editions of
these documents and increasingly online. A number of sites now have searchable
copies (not transcriptions) of primary documents online. See, for example,
the huge collection in the Library of Congress’s American Memory project:
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http://memory.loc.gov/ammem/index.html. Another enormous collection is
Readex’s Early American Newspapers and other online archives that include
hundreds of newspapers from the eighteenth and nineteenth centuries, as well
as many books and other primary sources, drawing chiefly on the collections of
the American Antiquarian Society: http://www.newsbankonline.com/readex/.
For a collection of thousands of law-related books from the period, go to Gale’s
The Making of Modern Law: http://www.gale.com/ModernLaw/.
From the many printed collections of primary sources for this period, we
list here a few of the more broadly focused collections (that is, collections that
go well beyond the papers of a single notable person): Charles S. Hyneman
and Donald S. Lutz, eds., American Political Writing During the Founding Era,
1760–1800, 2 vols. (Indianapolis 1983); Helen Veit et al., eds., Creating the Bill
of Rights (Baltimore, 1991); Gary McDowell and Colleen Sheenan, eds., Friends
of the Constitution:Writings of the Other Federalists (Indianapolis, 1998); Philip S.
Foner, ed., The Democratic Republican Societies, 1790–1800: A Documentary Sourcebook
of Constitutions, Declarations, Addresses, Resolutions, and Toasts (Westport, CT,
1976); H. Jefferson Powell, Languages of Power: A Sourcebook of Early American
Constitutional History (Durham, NC, 1991); Gordon S. Wood, ed., The Rising
Glory of America (Boston, 1990); Maeva Marcus, ed., The Documentary History
of the Supreme Court of the United States, 1789–1800, 8 vols. so far (New York,
1985–2007); and Charlene Bangs Bickford et al., The Documentary History of
the First Federal Congress of the United States of America, March 4, 1789-March 3,
1791, 17 vols. so far (Baltimore, 1972–2004).
chapter 16: magistrates, common lawyers, legislators
james a. henretta
I. Local Primacy: Magistrates and Arbitrators, 1600–1680
The best recent legal scholarship on the seventeenth-century Chesapeake is
that of David Thomas Konig. See his “Colonization and the Common Law in
Ireland and Virginia, 1569–1634,” in James A. Henretta, Stanley N. Katz,
and Michael Kammen, eds., The Transformation of Early American History (New
York, 1991), 70–92, and “Country Justice: The Rural Roots of Constitutionalism
in Colonial Virginia,” in Kermit L. Hall and JamesW. Ely, Jr., eds., In An
Uncertain Tradition: Constitutionalism and the History of the South (Athens, GA,
1989), 63–82. Other good studies include Lois Green Carr, “The Development
of the Maryland Orphans’ Court, 1654–1715,” in Aubrey C. Land, Lois
Green Carr, and Edward C. Papenfuse, Law, Society, and Politics in Early Maryland
(Baltimore, 1977), 41–62; James Horn, Adapting to a New World: English
Society in the Seventeenth-Century Chesapeake (Chapel Hill, 1994); and Christine
Daniels, “‘Liberty to Complaine’: Servant Petitions in Maryland, 1652–1797,”
in Christopher L. Tomlins and Bruce H. Mann, eds., The Many Legalities of
Early America (Chapel Hill, NC, 2001), 219–49.
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On the magistracy in Ne,w England, consult the fine article by John M.
Murrin, “Magistrates, Sinners, and a Precarious Liberty: Trial by Jury in
Seventeenth-Century New England,” in David D. Hall, John M. Murrin, and
Thad W. Tate, eds., Saints and Revolutionaries: Essays on Early American History
(New York, 1984),152–206; David Grayson Allen, In English Ways: The
Movement of Societies and the Transferal of English Local Law and Custom to Massachusetts
Bay in the Seventeenth Century (Chapel Hill, NC, 1981); and two articles
by George Haskins, “Reception of the Common Law in Seventeenth-Century
Massachusetts: A Case Study,” in George Athan Billias, ed., Law and Authority
in Colonial America (Berkeley, 1965), 17–31 and “Lay Judges: Magistrates and
Justices in Early Massachusetts,” in DanielRCoquillette, Catherine S. Menand,
and Robert J. Brink, eds., Law in Colonial Massachusetts, 1630–1800 (Boston,
1984), 39–55.
Informative studies of seventeenth-century New York include Herbert Alan
Johnson, Essays on New York Colonial Legal History (Westport, CT, 1981) and
“The Advent of Common Law in Colonial New York” in Billias, ed., Law and
Authority, 74–91; Richard B. Morris, “The New York City’s Mayor’s Court,”
in Leo Hershkowitz and Milton M. Klein, eds., Courts and Law in Early New
York (Port Washington, NY,1978); and Douglas Greenberg, Crime and Law
Enforcement in the Colony of New York, 1691–1776 (Ithaca, NY, 1974). On
Pennsylvania, consult the interesting scholarship of William M. Offutt, Jr.,
Of “Good Laws” and “Good Men:” Law and Society in the Delaware Valley, 1680–
1710 (Urbana, IL, 1995), and “The Limits of Authority: Courts, Ethnicity,
and Gender in the Middle Colonies, 1670–1710,” in Tomlins and Mann, eds.,
Many Legalities 357–87. A nice case study of the power of the magistracy is
Jessica Kross and Thomas J. Davis. “Magistrates, the Minister’s Rate, and the
Question on Authority: The Case of Daniel Bull, the Jamaica Dissenters, and
the Tax Collector, 1718–1719,” Journal of Church and State 32 (1990), 813–30.
II. Centralization: Imperial Authority, Legalism, and Common Law, 1680–1720
The impact of imperial power on the court system is a theme developed in
Stanley N. Katz, “The Politics of Law in Colonial America: Controversies over
Chancery Courts and Equity Law in the Eighteenth Century,” in Donald Fleming
and Bernard Bailyn, eds., Law in American History (Boston, 1971), 257–86,
and L. Kinvin Wroth, “The Massachusetts Vice-Admiralty Court,” in Billias,
ed., Law and Authority. The emergence of lawyers is outlined in the wideranging
and valuable study by A. G. Roeber, Faithful Magistrates and Republican
Lawyers: Creators of Virginia Legal Culture, 1680–1810 (Chapel Hill, NC,
1981). Other informative works include Stephen Botein, “The Legal Profession
in Colonial North America,” in Wilfred Prest, ed., Lawyers in Early Modern
Europe and America (New York, 1981), 129–46; John M. Murrin, “The Legal
Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” in
Stanley N. Katz and John M. Murrin, eds., Colonial America: Essays in Politics and
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Social Development (New York, 1983, 3rd ed.), 540–96; and NealW. Allen, Jr.,
“Law and Authority to the Eastward: Maine Courts, Magistrates, and Lawyers,
1690–1730,” in Coquillette et al., Law in Colonial Massachusetts, 273–312.
See also the interesting essay by Mary Sarah Bilder, “The Lost Lawyers: Early
American Legal Literates and Transatlantic Legal Culture,” Yale Journal of Law
& the Humanities 11 (1999), 47–103.
The decline of arbitration and the increasing importance of the forms and
procedures of the common law are the subject of important works by Bruce
Mann, Neighbors and Strangers: Law and Community in Early Connecticut (Chapel
Hill, NC, 1987); David Thomas Konig, Law and Society in Puritan Massachusetts:
Essex County, 1629–1692 (Chapel Hill, NC, 1979); and David H. Flaherty,
“Chief Justice Samuel Sewall, 1692–1728,” inWilliam Pencak andWytheW.
Holt, Jr., eds., The Law in America, 1607–1861 (New York, 1989), 114–54.
III. Common Law Lawyers, Judges, and Juries, 1720–1780
The increasing competence of the colonial judiciary emerges in G. S. Rowe,
Embattled Bench: The Pennsylvania Supreme Court and the Forging of a Democratic
Society, 1684–1809 (Newark, DE, 1994) and Peter E. Russell, His Majesty’s
Judges: Provincial Society and the Superior Court in Massachusetts, 1692–1774
(New York, 1990). Because debt cases constituted most of the business of
the civil courts, my account relies heavily on the fine studies of debt and
civil procedure by Mann, Neighbors and Strangers, and William E. Nelson,
Americanization of the Common Law: The Impact of Legal Change on Massachusetts
Society, 1760–1830 (Athens, GA, 1976) and Dispute and Conflict Resolution in
Plymouth County, Massachusetts, 1725–1825 (Chapel Hill, NC, 1981). Other
accounts of debt legislation generally confirm the arguments of Mann and
Nelson while slightly modifying them. See Claire Priest, “Currency Policies
and Legal Development in Colonial New England,” Yale Law Journal 110
(2001), 1303–1405, and Deborah Rosen, “Courts and Commerce in Colonial
New York,” American Journal of Legal History 36 (1992), 139–63, and Courts and
Commerce; Gender, Law, and the Market Economy in Colonial New York (Columbus,
OH, 1997). See also Richard Lyman Bushman, “Farmers in Court: Orange
County, North Carolina, 1750–1776,” in Tomlins and Mann, Many Legalities,
388–414.
Useful studies of eighteenth-century judges and courts include Gwenda
Morgan, The Hegemony of the Law: Richmond County, Virginia, 1692–1776
(New York, 1989); Donna J. Spindel, Crime and Society in North Carolina,
1663–1776 (Baton Rouge, LA, 1989); and Deborah Rosen, “The Supreme
Court of the Judicature of Colonial New York: Civil Practice in Transition,
1691–1760,” Law and History Review 5 (1987), 213–47. Broader studies that
contain useful legal materials are Mary M. Schweitzer, Custom and Contract:
Household, Government, and the Economy in Colonial Pennsylvania (New York,
1987), and Rhys Isaac, The Transformation of Virginia, 1740–1790 (Chapel Hill,
NC, 1982). See also David Thomas Konig, “Legal Fictions and the Rule(s) of
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Bibliographic Essays 693
Law: The Jeffersonian Critique of Common-Law Adjudication” in Tomlins and
Mann, Many Legalities, 97–121.
IV. The Anglicization Thesis and the Triumph of Local Law
As Hendrik Hartog explains (in “Losing theWorld of the Massachusetts Whig,”
in Hartog, ed., Law in the American Revolution and the Revolution in the Law
[Cambridge, MA, 1981], 143–66), John Phillip Reid has presented a detailed
discussion and a convincing interpretation of the importance of “l(fā)ocal” or
“Whig” law during the Revolutionary era. See, among Reid’s many books, In
a Defiant Stance: The Conditions of Law in Massachusetts Bay, the Irish Comparison;
and the Coming of the American Revolution (University Park, PA, 1977). Important
studies of the British constitution and imperial affairs include Barbara A. Black,
“The Constitution of Empire: The Case for the Colonists.” University of Pennsylvania
Law Review 124 (1976), 1157–268; Martin Stephen Flaherty, “Note:
The Empire Strikes Back: Annesley v. Sherlock and The Triumph Of Imperial
Parliamentary Supremacy,” Columbia Law Review 87 (1987), 593–632; and Jack
P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities
of the British Empire and the United States, 1607–1788 (Athens, GA, 1986) and
“From the Perspective of Law: Context and Legitimacy in the Origins of the
American Revolution,” South Atlantic Quarterly 85 (1986), 56–77. Interesting
recent studies are Daniel J. Hulsebosch, “Imperia in Imperio: The Multiple Constitutions
of Empire in New York, 1750–1777,” Law and History Review 16
(1998), 319–79, and Christine Desan, “Remaking Constitutional Tradition at
the Margin of Empire: The Creation of Legislative Adjudication in Colonial
New York,” Law and History Review 16 (1998), 257–317.
For the impact of politics and ideology on the legal system during the
Revolutionary years, see J. R. Pole, “Reflections on American Law and the
American Revolution,” William and Mary Quarterly, 3rd ser., 50 (1993), 123–
59; Holly Brewer, “Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudal
Restraints’ and Revolutionary Reform,” William and Mary Quarterly, 3rd ser.,
54 (1997), 307–46; Catherine Menand, “Juries, Judges, and the Politics of
Justice in Pre-Revolutionary Boston,” in Pencak and Holt, eds., The Law in
America, 1607–1861, 155–85; and Stanley N. Katz, “Republicanism and the
Law of Inheritance in the American Revolutionary Era,” Michigan Law Review
76 (1977–78), 1–29. Other studies that discuss similar issues include A. G.
Roeber, Palatines, Liberty, and Property: German Lutherans in Colonial British
America (Baltimore, 1998), and Marylynn Salmon,Women and the Law of Property
in Early America (Chapel Hill, NC, 1986).
V. The Supremacy of the Legislature
The rising importance of the legislature can be traced in Nelson, Americanization
of the Common Law, and Roeber, Faithful Magistrates. In addition, see
Jack N. Rakove, “The Origins of Judicial Review: A Plea for New Contexts,”
Stanford Law Review 49 (1997), 1031–64, and Hendrik Hartog, Public Property
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and Private Power: The Corporation of the City of New York in American Law,
1730–1870 (Chapel Hill, NC, 1983) and “The Public Law of a County Court;
Judicial Government in Eighteenth Century Massachusetts,” American Journal
of Legal History 20 (1976): 282–329. For lawyers, see Gerard W. Gawalt, The
Promise of Power: The Emergence of the Legal Profession in Massachusetts, 1760–1840
(Westport, CT, 1979).
Analysis of the judiciary must begin with the scholarship of Morton Horwitz.
See The Transformation of American Law, 1780–1860 (New York, 1976); “The
Emergence of an Instrumental Conception of American Law, 1780–1820,” in
Fleming and Bailyn, eds., Law in American History, 287–328; and “The Historical
Foundations of Modern Contract Law,” Harvard Law Review 87 (1974),
917–56. Studies that criticize or complement Horwitz’s interpretation of the
judiciary include Jefferson White, “Representing Change in Early American
Law: An Alternative to Horwitz’s Approach,” in Pencak and Holt, eds., Law in
America, 238–68; F. Thornton Miller, Juries and Judges Versus the Law: Virginia’s
Provincial Legal Perspective, 1783–1828 (Charlottesville, VA, 1994); and Dale
A. Oesterle, “Formative Contributions to American Corporate Law by the Massachusetts
Supreme Judicial Court from 1806 to 1810,” in Russell K. Osgood,
The History of the Law in Massachusetts: The Supreme Judicial Court, 1692–1992
(Boston, 1992), 127–52. For the changing importance of juries, see Renee B.
Lettow, “New Trial for Verdict Against Law: Judge-Jury Relations in Early
Nineteenth-Century America,” Notre Dame Law Review 71 (1995–96), 505–
53, and Mary Sarah Bilder, “The Origin of the Appeal in America,” Hastings
Law Journal 48 (1997), 913–68. Two important studies that focus on the role
of the judiciary are Christopher L. Tomlins, Law, Labor, and Ideology in the Early
American Republic (NewYork, 1993), andWilliam J. Novak, The People’sWelfare:
Law and Regulation in Nineteenth-Century America (Chapel Hill, NC, 1996).
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notes on contributors (in order
of appearance)
anthony pagden is Distinguished Professor of History and Political
Science at the University of California, Los Angeles
katherine a. hermes is Associate Professor of History at Central Connecticut
State University
mary sarah bilder is Professor of Law at Boston College Law School
richard j. ross is Professor of Law and History at the University of
Illinois, Urbana-Champaign
david thomas konig is Professor of History and Law at Washington
University in St. Louis
michael meranze is Professor of History at the University of California,
Los Angeles
christopher tomlins is a Senior Research Fellow at the American Bar
Foundation, Chicago. Research for his chapter was funded by the American
Bar Foundation
sally e. hadden is Associate Professor of History and Law at Florida State
University, Tallahassee
holly brewer is Associate Professor of History at North Carolina State
University, Raleigh
mark mcgarvie is Visiting Assistant Professor of History and Leadership
Studies at the University of Richmond, Virginia
695
Cambridge Histories Online © Cambridge University Press, 2008
696 Notes on Contributors
elizabeth mensch is SUNY Distinguished Teaching Professor at the
University at Buffalo Law School, State University of New York
bruce h. mann is Carl F. Schipper, Jr. Professor of Law at Harvard Law
School
claire priest is Associate Professor of Law, Northwestern University
School of Law. Research for her chapter was supported by Northwestern’s
Julius Rosenthal Fund
jack p. greene is AndrewW. Mellon Professor Emeritus in the Humanities,
The Johns Hopkins University and Adjunct Professor of History,
Brown University
jack n. rakove is William Robertson Coe Professor of History and
American Studies, and Professor of Political Science and (by courtesy) Law,
at Stanford University
saul cornell is Professor of History at The Ohio State University,
Columbus
gerald leonard is Professor of Law at Boston University School of Law
james a. henretta is Priscilla Alden Burke Professor of History at the
University of Maryland, College Park
Cambridge Histories Online © Cambridge University Press, 2008