A Note on This Series
I am very excited about a new series that I’m beginning today: A Short History of Nearly Everything in American Law. This series is for anyone who’s interested in the topic. The language is simple on purpose: so that those of you with older children can share it with them. Unlike my regular posts, I’m not assuming any prior legal knowledge. I’ve got no agenda, political or otherwise. I just want to have some fun combining two of my favorite subjects. In many ways, the history of American law is the history of the American people. You can see what is important to different people in different places at different points in time. Fascinating!
I am leaning heavily on multiple books by Lawrence M. Friedman, as well as using other sources. Professor Friedman’s books are amazing to read for his literary talent, even apart from his excellent scholarship. I highly recommend them if you want more information. I will also try to include an “additional sources” section below each segment in this series for any works used beyond those of Friedman’s.
Let’s get started!
The Colonial Period of American Law
Defining the “Colonial Period”
The “Colonial period” refers to the 169 years between the founding of Jamestown and the Declaration of Independence. There is no such thing as a unified body of “colonial law;” after all, there was more than one colony and each colony developed its own legal history. Further, colonies didn’t have access to the reported decisions of the other colonies until after the Revolution; there simply wasn’t any type of legal record published or distributed before then.
Colonial law was not simply wholly imported from England. English law was undergoing rapid developments in this period and varied from place to place. At any point in time, each colony had a legal system that was made up of 1) the laws that the settlers remembered from England (which could be anything from national law to local customary laws), 2) laws that they developed to deal with the unique particulars of life in that colony (which were unknown to England), and 3) laws that were a product of the ideology of the colonists themselves–Puritans, for example, made laws to suit their religious beliefs.
At the time of independence, there were thirteen colonies, which became thirteen states. But before that, there were more than thirteen colonies. For instance, New Jersey was made by the fusion of East Jersey with West Jersey–two separate colonies. Further, the colonies originated and developed at different times and at different speeds.
By the time Georgia was getting started, Massachusetts was already well established. The laws of early Massachusetts are different than the laws of later Massachusetts and the laws of early Georgia are much different than the laws of Massachusetts at the same point in time. So too, the laws of bustling Boston were different than the laws of the tiny hamlets surrounding it. This is true even today; the ordinances of a small rural Kentucky town may vary quite sharply from a large New England city. (The South during the entire Colonial period was almost entirely rural).
The ideology of the colony impacted the laws; where the Puritans settled, the Puritan beliefs were a strong force in shaping the laws. The environment also impacted the laws. The soil and climate of the South favored certain crops, like tobacco, cotton and rice. Those crops led to a plantation economy with the laws necessary to support it.
In the 169 years of this period, there were families who rose to the elite status; ruling families emerged, oligarchies were established, and small groups held big powers. But, it was still a much more open society compared to the society in England. The ruling families in the colonies were often put in charge of governmental affairs by the King of England, paving the way for self-government. That means that the Revolution didn’t cause a massive legal crisis in the day to day business of the colonies; the colonists had been essentially practicing their own law and government for a long time. It’s not that they didn’t know that they were English, and subject to England. They were jealous of their own self-rule.
The Child Remonstrance, in Massachusetts Bay (1646), illustrates the point. Dr. Child attacked the ruling circles of the colony in writing and called for a return to the “Fundamentall and wholesome Lawes” of England. He pointed to the large gap between the laws of England and the laws of Massachusetts Bay. The colony tried to keep Child’s writings from reaching England. John Cotton supposedly warned a shipmaster not to “carry any Writings” that were “complaints against the people of God”; it would be “as Jonas in the ship,” he said. If “storms did arise,” the master should “search if they had not in any chest or trunk any such Jonas aboard”; any such writings should be thrown to the boiling sea.
The colony did not rely on the storm gods alone; it also argued, in England, that its charter precluded appeals from the colony to London. By this time, it was already clear that there was a problem to be resolved: what was the exact relationship between center and periphery, between London and the colonies? It was also clear that the colonies would resist encroachments from London. England never had a clear policy mapped out for the rule of the colonies.
When Colonials Become the Colonizers
Just as English people colonized the colonies, the colonies themselves colonized the rest of what is now the US and Canada. The land was full of native tribes, which yielded complex and varied interactions. Treatment of Native populations by the colonists changed throughout the period. At the beginning, the native populations were often treated as equals; however, treatment became harsher as time wore on.
These things are important to keep in mind as we go forward and look at the legal system in colonial times. Up next is Part 2: The Colonial Courts.
1. George L. Haskins, Law and Authority in Early Massachusetts (1966), p. 4ff (Friedman notes Haskins’ mistakes in scholarship).
2. Goebel, Julius, Jr. “King’s Law and Local Custom in Seventeenth-Century New England,: 31 Col. L. Rev. 416 (1931).
3. Allen, David Grayson. “In English Ways: The Movement of Societies and the Transferal of English Local Law and Custom in Massachusetts Bay in the Seventeenth Century.” (1981). p. 20.
4. The Laws and Liberties of Massachusetts (1648).